1

In the Court of the I Addl Special court for NDPS Act Cases, Madurai
Present : Thiru.A.S. Hariharakumar, B.L.,
Additional District Judge.
I Additional Special Court for NDPS Act Cases, Madurai.
Thursday the 17th day of April 2025,
C.C. No. 159 / 2018

State of Tamilnadu, through Inspector of Police,

NIB - CID PS, Dindigul District.
Cr.No. 171 / 2017 --- Complainant
-Vs-
Sasikumar, S/o. Pandi ---Accused

This case was taken on file on 02.07.2018 and finally came before this court
on 08.04.2025 in the presence of Thiru.K.Vijayapandiyan, Special Public
Prosecutor for the complainant and Thiru. R. Rajan, Advocate for the Accused and
upon hearing both sides and upon perusing entire material records and having
stood over till this day for consideration, this court delivered the following

JUDGMENT

1. This is a case instituted on the basis of a police report.

2. The Inspector of Police, NIB CID, Dindigul District has laid the final report
alleging that on 05.12.2017 at about 10.00 hours, at Dindigul – Madurai
Road, Near Thomaiyarpuram Bus stop the accused was found coming in a
White colour Indica V2 car bearing registration No.AP-31-CC-2288 with
150 Kilograms of ganja, which were kept in the 6 white colour sacks bags
each bag containing 25 Kg of ganja which belongs to the accused and

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:50:29 +0530
 2

therefore he was charged for the offence punishable under section 8 (c) r/w
20 (b) (ii)(C) and 25 of N.D.P.S. Act.

3. On appearance of the accused before this court, copies of all the material
documents relied on by the Prosecution was furnished to the accused as
contemplated U/s.207 Cr.P.C. After giving sufficient time, charges were
framed as against the accused for the offense punishable under section U/s.
8(c) r/w 20(b) (ii)(C) of N.D.P.S. Act. The Charges were explained to the
accused and he was questioned. The Accused has denied the charges and
pleaded to be tried.

4. The Case of the Prosecution as found from the evidence of the witnesses
examined is : PW2 the Inspector of POlice, Tmt. Kaushar Nisha, when she
was the Inspector of Police of NIB CID unit of Dindigul, she has recieved a
secret information on 5.12.2017 stating that one Sasikumar son of Pandi of
Minjur, Ponneri, Chennai was smuggling ganja and that he would idenetify
the said person. Therefore PW2 recorded the information under Ex.P5, and
entered in the GD, intimated to the Dy. Superintendent of Police, obtained
permission and on his orders left the Police station at 9.00 AM along with
Policemen and equipments and reached the Thomaiyarpuram Bus stop on
Dindugal to Madurai road and were doing vehicle check. At 10.00 AM, the
informant identified the indica V2 white car with registration number AP
31CC 2288 and left the place. PW2 stopped the car and enquired the person
driving the car and found his name as Sasikumar, Son of Pandi. Then she
informed him that she has information that there is ganja in the said car and
therefore wanted to search him and the car and that he has got every right to
ask to be searched in the presence of the Gazetted officer or the Judicial

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:50:43 +0530
 3

Magistrate. As the said person informed that he need go anywhere and the
police themselves can search him, PW2 obtained the search consent letter
Ex.P1. Then she found 6 white colour gunny bags inside the car and on
weighing she found its weight as 25 kgs each and they were ganja. She then
recorded the confession given by the said person and then took two samples
each weighing 50 grams from each of the 6 gunny bags and the 12 samples
are M.O.’s 1 to 12. Then she seized the ganja and the Car under the seizure
magazhar Ex. P3. She prepared search memo and arrest memo and arrested
the Accused. She returned to the Police station along with the seized goods
and the accused and registered a case in Cr.No. 171 of 2017 for an offense
under section 8(c) r/w 20(b)(ii)(C) ad 25 of the NDPS Act. She sent the
accused to remand and the properties to the Court under Ex.P9 the Form 91.
She also prepared a detailed report under section 57 of the NDPS act and has
sent it to PW3, the Dy.Supdt of Police. She has also submitted a requisition
to the Court under Ex.P10 to send the samples to the FSL and the Court has
in turn sent them through Ex.P11 the Court letter. She has filed an
application under section 52A of the NDPS Act seeking the permission and
orders of the Court for destruction of he remaining ganja. As that time, fresh
sample each weighing 50 grams were taken in the presence of the Magistrate
and they are M.O.’s 13 to 18. PW3 then took up the case for further
investigation enquired the witnesses, recorded their statements, received the
chemical examination report EX.P12 and after finding that the samples
tested are ganja, he completed the investigation and filed the final report as
against the accused for the said offense.

5. After the completion of the examination of the witnesses, the incriminating

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:50:49 +0530
 4

materials found in the evidence of the Witnesses were put to the accused and
he was questioned under section 313(1)(b) of Cr.P.C in that regard. The
Accused has denied it and claimed them to be false. Though he has claimed
that he has got Defense witness on his side, he has not examined any witness
on his side.

6. The Points for determination is

(a) Whether the prosecution has followed all the mandatory provisions

contained under the NDPS act ?

(b) Whether the guilt of the accused has been proved beyond doubt ? and

(c) If so to what punishment the accused is liable to ?

7. Heard Both sides. Records perused carefully. The Prosecution in order to

prove the case have examined 3 witnesses on their side and have marked 12
Exhibits and 18 MO’s. Written arguments and the two citations considered.

8. Points 1 to 3 : In the trial of the cases pertaining to the offences punishable

under the NDPS Act, the most common line of defense that is being taken by
the Learned Defense Counsel is that the Mandatory procedures prescribed
under the NDPS act are not complied and therefore the Trial is vitiated.
Mostly the question of the chemical contents of the contraband seized is not
under challenge, even though the process of taking samples is contested. In
fact there is no objection to the Chemical Analysis Report even while
marking. In view of Section 293 of the Criminal Procedure Code, if the
report or the process of testing is to be challenged, then the burden would be
on the accused to summon the officer concerned and examine him, which is
mostly not done in most of the cases. Therefore it is only the procedural

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:50:55 +0530
 5

aspect of the process of investigation that is always under attack.

9. The relevant provisions of the NDPS Act which mandate the procedures to
be followed in issuing warrants, authorizing entry, search and seizure, be it
in public domain or in a private space, entry, stop and search of conveyance
again in public or otherwise are contained in Sections 41, 42, 43, 49 to 55,
57 and 57A of the Act. Out of these provisions, the most significant ones are
the one contained in section 41, 42, 50(1), 52A, 55 and 57. Therefore in a
case instituted for the trial of offenses under the N.D.P.S Act the Prosecution
must prove the compliance of the mandatory procedures. Once it has been
established and it is shown that these procedures are duly complied, then the
possession of the contraband would also stand proved and the statutory
presumptions contained under section 35 and 54 of the NDPS act would
come into play and it would be the burden of the Accused to rebut the
statutory presumptions so lying against him and in favour of the prosecution
case. Here the accused need not get into the witness box or prove his
innocence beyond doubt unlike the prosecution. It would suffice the
requirement of law that if he shows the existence of probabilities lying either
in his favour or against the case of the prosecution.

10.It is also pertinent to note that in case the authorised officer makes a false
search, arrest or seizure and if his informant gives any false information,
then both are liable to be prosecuted. Therefore the prosecution has to
meticulously prove their case and the accused is also burdened with showing
the probabilities in view of the existence of presumption clause. Therefore
the significance of stricter proof is necessary as the punishment is stringent
cannot be as high as is proclaimed by the learned Counsel for the Accused. It

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:01 +0530
 6

is also to be understood that the victim of the offense is largely the society as
a whole and is not the consumer of the contraband alone and the tentacles of
such drugs and psychotropic substances gets into its fold the future
generation of the nation.

11.At this juncture, this Court is also inclined record that exaggerated devotion
to the rule of benefit of doubt must not nurture fanciful doubts or lingering
suspicion and thereby destroy social defense. Justice cannot be made sterile
on the plea that it is better to let hundred guilty escape than punish an
innocent. If a case is proved perfectly, it is argued that it is artificial; if a
case has some flaws inevitable because human beings are prone to err, it is
argued that it is too imperfect. One wonders whether in the meticulous
hypersensitivity to eliminate a rare innocent from being punished, many
guilty persons must be allowed to escape. Too frequent acquittals of the
guilty may lead to a ferocious penal law, eventually eroding the judicial
protection of the guiltless. A miscarriage of justice may arise from the
acquittal of the guilty no less than from the conviction of the innocent. At
the same time, this Court is alive to the fact that as the penal provisions of
this Act are very stringent, law requires that it should be proved beyond all
reasonable doubts. The purpose of the law is not to allow the offender to
sneak out of the meshes of law. These are the guidelines that the Hon’ble
Supreme Court has laid through its judgments. With these in the back
ground, this court is inclined to go into the facts of this case.

12.In a case registered for the offense committed under the NDPS Act, the
mandatory procedures contained under the act plays a vital role. The first
mandatory procedure that is to be followed is the one contained in Section

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:07 +0530
 7

42(2) of the NDPS Act. Section 42 relates to the power of entry, Search,
Seizure and Arrest without Warrant or authorization. As per the Section 42
(1) “Any such officer (being an officer superior in rank to a Peon, Sepoy or
constable, of the departments of .......... or any such officer ......... of the
revenue, drugs control, excise, police or any other department of the State
Government as is empowered in this behalf by general or special order of
the State Government, if he has reason to believe from personal knowledge
or information given by any person and taken down in writing .......... is kept
or concealed in any building, conveyance or enclosed place may between
Sunrise and Sunset to enter into and search any such building, conveyance
or place...........”. What is found in Section 42(1) is not the mandatory part
of Section 42. Section 42(2) states that where an officer takes down any
information in writing under sub-section (1) or records grounds for his belief
under the proviso thereto, he shall within 72 hours send a copy there of to
his immediate Official Superior. So what is mandatory U/s.42 is the
procedures contemplated U/s.42(2) alone.
13.In order to invoke Section 42 there must be a case where an officer of the
departments mentioned in the said section has taken down in writing any
information received that evidence relating to contraband or the contraband
itself or documents relating to the contraband is kept illegally, in any
building, conveyance or enclosed place where he may enter into such
building and search. Section 42(1) is more or less identical to what is
contained in Section 41(2) and what is the difference between Section 41(2)
and 42(1) has to be looked into. As far as Section 41 is concerned it deals
with the power of a Gazetted Officer or any other person who has been duly
authorized by such officer of the Gazetted rank or by a competent Judicial
Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:18 +0530
 8

Magistrate. So when the officer of the Gazetted Officer rank himself is to

proceed on the basis of the information or if he authorizes anybody under
him or if there is a warrant issued by the competent Court then it can be said
that the provision of Section 41 would apply. Section 42 does not speak
about the officers in the Gazetted Rank. It says that any such officer (being
an officer superior in rank to a peon, sepoy or constable) can proceed with
search and seizure provided he receives the information and records it in
writing and he has to send the copy of such information to the Official
Superior within 72 hours.
14.P.W.2 is the Inspector of Police and she is not an officer in the Gazetted rank
and therefore Section 41 cannot be said to be applicable to this case. She
would come under the provisions of Section 42, provided she is to enter into
any building, conveyance or enclosed place. If she is not to enter, then the
court holds the provisions of Section 42 also cannot be said to be applicable.
If she is not to enter and if it is an open or public place then resort can be
made to Section 43 of the NDPS Act. To find out if section 43 can be said
to be applicable, this court is first inclined to look at what the provision says,
before going into the evidence part. It states that “any officer of any of the
departments mentioned in section 42 may ….... seize in any public place or
in transit, any narcotic drug or psychotropic substance or controlled
substance ….” Therefore it is this provision which governs the search,
seizure and arrest made in the public place or while in transit.
15.At this juncture this court is inclined to extract the provisions of Section 43
of the NDPS Act for easy appraisal. It reads as :
S 43 : Any officer of any of the departments mentioned in section 42 may -
(a) seize in any public place or in transit, any narcotic drug or
Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:24 +0530
 9

psychotropic substance or controlled substance in respect of which he has

reason to believe an offence punishable under this Act has been committed,
and, along with such drug or substance, any animal or conveyance or article
liable to confiscation under this Act, any document or other article which he
has reason to believe may furnish evidence of the commission of an offence
punishable under this Act or any document or other article which may
furnish evidence of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have
committed an offence punishable under this Act, and if such person has any
narcotic drug or psychotropic substance or controlled substance in his
possession and such possession appears to him to be unlawful, arrest him
and any other person in his company.
Explanation:— For the purposes of this section, the expression "public
place" includes any public conveyance, hotel, shop, or other place intended
for use by, or accessible to, the public.
16.Therefore it can be understood that Section 43 gets attracted when the
contraband is seized in open place or during transit. There are two situations
one is that seizure in open place and the other is during Transit and in either
case Section 43 can be invoked or be said to be applicable. So the crucial
determining factor to find out whether the provisions of Section 42 would
apply or the provisions of Section 43 would apply is the Place of
Occurrence. If it is building, conveyance or an enclosed place and if the
officer concerned has to enter into the same then the provisions of Section
42 would have an application. Again if the officer concerned is a Gazetted
Officer himself or is an officer duly authorized either by the Gazetted
Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:30 +0530
 10

Officer himself or by the competent court then again the provision of

Section 42 would not have any role to play because in such a case, the
provision of Section 41 will come into play. Therefore it has to be seen as to
where the contraband were seized.
17.The fundamental distinction between Section 42 and 43 can be understood
through the principles of the fundamental rights guaranteed under Indian
Constitution. Right of privacy is recognized as a fundamental right.
Therefore, if there is any intrusion or invasion into the right of privacy, by
way of entering into or searching the premises namely the building,
conveyance or an enclosed place then some precaution must be taken by the
officer concerned to see that the right of the individual is not affected and it
is also the duty of the Legislature to see that this right is safeguarded. But
this precaution need not be taken when the contraband is seized in a public
place or during transit and that is why the provisions of Section 43 is so
worded. Therefore, the court holds that in a case where the provisions of
Section 42 does not have any relevancy and that it is only the provisions of
Section 43 that is applicable, there is no need to record the information in
writing as contemplated under section 42(1) or to send it to the official
Superior as per section 42(2) of the NDPS Act.

18.Coming to the evidence part, ExP5 was the information record which the
PW2, the Inspector of Police has prepared and has sent to the immediate
official Superior, the PW3 herein. The said document was prepared on
5.12.2017 and was received at the Court also on the same date. PW3 has
deposed that he has received the record and has seen it. It is not denied
during the cross examination of PW3. However there is no endorsement

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:35 +0530
 11

made on it. Both PW2 and PW3 have deposed that permission to go on raid
was obtained and granted through phone. From the above evidence it is clear
that the information received was recorded, intimated to the immediate
official superior and permission was also obtained from him.

19.PW1 who has accompanied to PW2 the inspector of police in the ride, has
deposed in his chief examination that on 05.12.2017 they went to place of
occurrence which is Thomaiyarpuram bus stop on Dindigul to Madurai road
and while they were doing vehicle check they were saw an Indica Car
bearing Reg. No. AP 33 CC 2288 coming and it was identified by the
informant. This is the disputed vehicle in which the contraband was
transported. The relevant portion of the evidence of PW1 is “ TN 22G 0294
என்ற காவல் வாகனத்தில் 09.00 மணிக்கு நிலையம் விட்டு புறப்பட்டு

சம்பவ இடமான திண்டுக்கல்-மதுரை ரோடு தோமையார் புரம் பஸ்

நிறுத்தம் அருகில் 09.30 மணிக்கு வந்து வாகன சோதனையில்

இருக்கும் போது 10 மணிக்கு எங்கள் எதிரே வந்த AP 33 CC 2288

என்ற எண்ணுள்ள இண்டிகா வி2 வெள்ளைக்கலர் காரை தகவலாளி

காண்பித்து விட்டு மறைந்தார்.”. “பின்னர் எதிரி சசிக்குமாரை அவர்

ஓட்டி வந்த வாகனத்தில் டிக்கியை திறந்து பார்த்ததில் 6 வெள்ளை நிற

சாக்கு மூட்டைகள் இருந்தன, அந்த மூட்டைகளை திறந்து பார்த்தபோது

அதில் உலர்ந்த கஞ்சா என்னும் போதை பொருள் இருந்தது". PW2 who

is the inspector of police has also deposed about the above facts in her chief
examination. Ex.P1 the search consent letter, the confession, the seizure
mahazar Ex.P3 and all other documents shows this place as the place of
occurrence.
Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:40 +0530
 12

20. During the cross-examination of PW1 it was brought out that “ பஸ்
ஸ்டாண்ட் அருகில் கடைகள் எதுவும் இல்லையா என்றால் இல்லை.

அங்கு பொதுமக்கள் நடமாட்டம் இருந்ததா என்றால் சற்று தள்ளி பஸ்

ஸ்டாண்டில் பொது மக்கள் நடமாட்டம் இருந்தது.” .Other than this

nothing was put to PW1 during the cross-examination to deny or dispute his
evidence as regards the place of occurrence. Therefore the evidence
regarding the place of occurrence which the PWs have deposed and which is
described in the documents are not really disputed.

21.In the judgement rendered in Muddasani Venkata Narsaiah V Muddasani

Sarojana reported in (2016) 12 SCC 288 on the effect of non-cross examina-
tion of witness with respect to particular fact it has been held that “The
cross-examination is a matter of substance not of procedure one is required
to put one’s own version in cross examination of opponent. The effect of
non cross-examination is that the statement of witness has not been dis-
puted” Again A Division Bench of Patna High Court in Karnidan Sarda &
Anr. v. Sailaja Kanta Mitra AIR 1940 Patna 683 has laid down that it cannot
be too strongly emphasized that the system of administration of justice al-
lows of cross-examination of opposite party’s witnesses for the purpose of
testing their evidence, and it must be assumed that when the witnesses were
not tested in that way, their evidence is to be ordinarily accepted. So, the
place of occurrence being an open and public place is thus proved by the
prosecution.
22.It was also deposed by the PW1 and 2 that the accused was coming the
Indica V2 car along with the contraband. During the cross-examination of
the PW1 it was also not disputed. In fact during the cross-examination of
Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:45 +0530
 13

PW1 the learned counsel for the accused has touched only on the aspects
regarding the physical search, writing of the crime number with red ink at
the place of occurrence and the presence of the public at the bus stand. He
has not denied the evidence of the PW1 chief regarding the other material
aspect spoken to by him. Therefore the evidence of PW1 on the rest of the
aspects, including the transporting the ganja in the car, has to be taken as
admitted, in view of the above judgements.

23.So, the prosecution has proved that the contraband was seized from the car,
while on transit, in an open and public place. Therefore the requirement of
Sec.42 becomes irrelevant. The learned counsel for the accused has claimed
that as the vehicle from which the contraband was seized was not a public
vehicle, the contention of the public prosecutor that Section 42 is not
applicable and that section 43 of the act would apply is not valid.

24.Sec.43 deals with seizures in two methods, one is seizure in any public place
and the other is seizure in transit. It is not that the provision states that
seizure in any public place and in transit. The words used are “public place
or in transit”. Both are in different zones. Seizure from “public place” is
different from seizure “in transit”. When the seizure is made in public place
then the question would be to identify as to what are all public places, so the
explanation is given under the act to explain as to what are all covered under
the heading public place, So in the explanation it has been given as public
place includes in any public conveyance, hotel, shops or other places
intended for use by, or accessible to the public. This explanation only for the
purpose of explaining the words “Public place ” found in sec.43 (a) of the
NDPS Act. So what is given in the explanation cannot be imported or made

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:50 +0530
 14

applicable to the words “ in transit ” found in the said provision. There is no

distinction between private vehicle or public vehicle made in the provision.
There is also no distinction made between the various categories of vehicle
such as two wheelers or four wheelers or open body vehicles or containers
etc.,. Even if the contraband are transported has a head load, it can be very
well said that the seizure was made during transit. The dictionary meaning of
the word transit is “the act of being moved or carry from one place to
another”. So, the contention of the Counsel for the accused that as the
vehicle is the private vehicle, the provisions of the sec.42 would be
applicable is not a sustainable contention. The scope of the explanation
given in the Section 43 cannot be enlarged beyond “Public Place”.

25.What can be the factum which would make 42 applicable is the necessity to
enter into and search the conveyance or vehicle. In section 42(1)(a) it is set
out that “ Enter into and search any building, conveyance or place” and for
doing so the officer concerned must have information or must have reason to
believe from personal knowledge that contrabands or other articles
documents that may furnished evidence of the commission of the offence
under the act which is liable for seizure etc., has been kept or is concealed
in such building conveyance or enclosed place. So if there is a necessity to
enter into any vehicle for search purpose then the provisions of sec.42 would
come into play. The evidence of PWs brought out through the cross-
examination does not reveal any such facts. Therefore the court holds that
the provisions of the section 42 cannot made applicable to the facts of this
case under any situation. Therefore this court hold the provision of section
43 alone this applicable and therefore even if Ex.P5 the information record is

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:51:56 +0530
 15

lacking on some aspect, it cannot be faulted with and will not affect the
prosecution case.

26.On the legal front, this court is inclined to refer the following Judgments on
this aspect.

(a) The Hon’ble Kerala High Court has examined this issue in Abdul Azeez
v. State of Kerala, 2001 (3) RCR (Cri) 740 and in Palayan v. State of
Kerala, 2002(2) RCR (Cri) 857, that under Section 43 of the Act, the
empowering Officer has power to seize the articles and arrest of the
person who is found to be in possession of narcotic drugs and
psychotropic substance in a public place where such possession appeared
to be unlawful. The High Court concluded in paras 10 and 16 of the
judgment which reads as under:- "10. The said decision, according to me,
contains clear and categoric declaration of law that the provisions of
Section 42(2) will apply only to the case of information relating to the
availability of the contraband in a 'building, conveyance or enclosed
place' and that the said provisions will not have any application in a case
of information relating to possession of contraband by any person as
available in a public place.”

(b) The distinction between Section 42 and 43 of the Act was elaborately
explained by the Punjab and Haryana High Court in Dharminder Kumar
v. State of Punjab, 2002 SCC OnLine P&H 762, in the following way:
"10. While Section 42 empowers the officers of the specified departments
to carry out search, seizure and arrest in any building, conveyance or
enclosed place, Section 43 deals with the similar power of seizure and
arrest in public places. Powers under both these sections can be exercised

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:00 +0530
 16

if the concerned officer has reason to believe that some offence relating
to narcotic drugs or psychotropic substances has been
committed………….. The words have been specifically mentioned to
show the demarcating line between the two otherwise, the legislature
could have used any place instead of narrating the words 'building,
conveyance of enclosed place'. Even a private open place does not fall
within the purview of Section 42 unless it is enclosed. So, this
demarcating line will have to be kept in mind. Under Section 43 of the
Act, the words used are 'any public place or in transit'. The requirement
of recording of information in writing and communicating it to superiors
is intended to protect the possible harassment to residents and to maintain
personal liberty and human dignity. The term conveyance used in
Section 42 is to be understood as ejusdem generis to the terms building
or enclosed place. It is not every conveyance whether in public or
private that would fall within the scope of Section 42 of the Act. A
conveyance in a public place would fall within Section 43 of the Act
and Section 49 gives powers to the empowered officer to stop such
conveyance for the purpose of search.”

(c) The Constitution Bench of the Hon’ble Supreme Court in State of

Punjab Vs Baldev Singh reported in (1999) 6 SCC 172, has held in the
following words:- "10. .....The material difference between the
provisions of Section 43 and Section 42 is that whereas Section 42
requires recording of reasons for belief and for taking down of
information received in writing with regard to the commission of an
offence before conducting search and seizure, Section 43 does not

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:06 +0530
 17

contain any such provision and as such while acting under Section 43 of
the Act, the empowered officer has the power of seizure of the article etc.
and arrest of a person who is found to be in possession of any narcotic
drug or psychotropic substance in a public place where such possession
appears to him to be unlawful."

(d) In SK Raju @ Abdul Haque @ Jagga Vs State Of West Bengal

rendered in the Criminal Appeal No. 459 OF 2017 reported in 2018 (4)
Crimes 147 (SC) it has been held that “In the instant case, according to
the documents on record and the evidence of the witnesses, the search
and seizure took place at the airport which is a public place. This being
so, it is the provisions of Section 43 of the NDPS Act which would be
applicable. Further, as Section 42 of the NDPS Act was not applicable in
the present case, the seizure having been effected in a public place, the
question of non-compliance, if any, of the provisions of Section 42 of the
NDPS Act is wholly irrelevant.” Therefore this Court holds that the
compliance of Section 42 is not relevant to this case

27.The next mandatory procedure that the prosecution has to prove is the
compliance of Section 50(1) of the NDPS Act. Section 50(1) reads as
“"When any officer duly authorized under section 42 is about to search any
person under the provisions of section 41, section 42 or section 43, he shall
if such person so requires, take such person without unnecessary delay to
the nearest Gazetted Officer of any of the departments mentioned in section
42 or to the nearest Magistrate". From the above provision it can be found
out that if the person to be searched requires, to be searched in the presence
of the Gazetted Officer or the Magistrate then the searching officer should

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:11 +0530
 18

take him there without any delay. Here under the statue option is given to
the person to be searched and it is for him to state what he requires. It is not
obligatory on the part of the searching officer to inform him about the right
to ask to be searched before the said officers. With the evolution of law the
Hon'ble Supreme Court has held that the searching officer should explain the
person to be searched about the right available to him under the 50(1) of the
NDPS act and only then he can exercise such right.
28.In the judgment reported in (1999 (6) SCC 172) in The State Of Punjab vs
Baldev Singh the Constitutional Bench of the Hon’ble Supreme Court has
held that “Conducting a search under Section 50, without intimating to the
suspect that he has a right to be searched before a Gazetted Officer or a
Magistrate, would be violative of the reasonable, fair and just procedure
and the safeguard contained in Section 50 would be rendered illusory, otiose
and meaningless. Procedure based on systematic and unconscionable
violation of law by the officials responsible for the enforcement of law,
cannot be considered to be fair, just or reasonable procedure. We are not
persuaded to agree that reading into Section 50, the existence of a duty on
the part of the empowered officer, to intimate to the suspect, about the
existence of his right to be searched in presence of a Gazetted Officer or a
Magistrate, if he so requires, would place any premium on ignorance of law.
The argument loses sight of a clear distinction between ignorance of the law
and ignorance of the right to a reasonable, fair and just procedure.” So the
explanation of the right to the accused was made mandatory. Now how and
it what form the right has to be explained is another question. There is no
format or procedure laid down as to how the right to be searched has to be

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:16 +0530
 19

intimated or how the Search Consent Letter should be and the format is also
not set out.
29.Before going into the evidence part, this court is inclined to hold that the
question of compliance of Section 50(1) would have a significant role only
when the accused is searched physically. When there is no physical search
done on the accused, then there is no necessity to comply with Section 50(1).
In the above backdrop it has to be seen if the provisions of Section 50(1) has
been complied or not.
30.Ex.P1 is search consent letter obtained from the accused herein. The
signature as well as the thumb impression of the accused is found on the
Ex.P1. It is found in two parts. One is that the explanation of the rights and
asking for the willingness of the accused and the second is the reply given
by the accused. In the first part it is stated that “ சந்தேகத்தின் பேரில்
உம்மையும், உன்னுடைய வாகனத்தையும் சோதனை

செய்யவேண்டுமாயின் அருகில் உள்ள நீதித்துறை நடுவர் முன்போ,

அல்லது அரசிதழ் பதிவு பெற்ற அதிகாரி முன்போ சென்று தான்

சோதனை செய்யவேண்டும் என்று கூறினேன் NDPS சட்டப்படி உமக்கு

உரிமை உள்ளது என்று கூறி உம் விருப்பத்தை கூறும்படி நாங்கள்

கூறினோம்" The reply is the second part it reads as “ தாங்கள் படித்து

காண்பித்தும், எடுத்துக்கூறியும் விபரம்தெரிந்து கொண்டேன் என்னை

யாரிடமும் அழைத்து சென்று சோதனையிடவேண்டாம் காவல்

ஆய்வாளராகிய தாங்களே என்னை சோதனை செய்யலாம்.” So, this

documents clearly shows that the rights was explained to him and accused
also understood the same and has replied accordingly. His reply would show

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:21 +0530
 20

as to what was his right that was explained by the police. So, the court holds
that this document is sufficient to show that the procedures contained in
sec.50(1) has been complied. The evidence of the PW1 in his chief
examination on this aspect was not denied in his cross-examination.
Therefore this evidence of PW1 as regards the explanation of the right under
section 50(1) is sufficient to prove the compliance of sec.50(1).
31. During the cross-examination of the PW2 it was brought out that
“சோதனை சம்மத கடிதம் உட்பட ஆவணங்களை யார் எழுதினார்கள்

என்றால் சந்திரன் எழுதினார்.” Other than nothing was put to PW2 to

challenge or dispute Ex.P1. This also proves the execution of the Search
consent letter. Hence this court holds that the prosecution has proved the
compliance of the sec.50(1) of NDPS Act.
32.The next mandatory procedure is the compliance of Section 57 of the NDPS
Act. PW2, in her chief examination has deposed that “ அந்த முதல்
தகவல்அறிக்கை அ.சா.ஆ-7 ஆகும். பின்பு கைது மற்றும் கைது செய்த

விபரத்தினை தனி அறிக்கையான பிரிவு 57 ன் கீழான விரிவான

அறிக்கையினை காவல் துணை கண்காணிப்பாளர் அவர்களுக்கு

சமர்பித்தேன். அந்த விரிவான அறிக்கை அ.சா.ஆ-8 ஆகும். அதில்

அவர் மேற்குறிப்பு செய்துள்ளார்.” During the cross-examination of PW2

this evidence was not specifically challenged or denied. PW3 who is the
immediate official superior of PW2 has in his chief examination deposed
that “ பின்னர் வழக்கு பற்றிய 57ன் கீழான விரிவான அறிக்கை தயார்
செய்து என்னிடம் சமர்பித்தார் அதை நான் பெற்றுக்கொண்டு

மேற்குறிப்பு செய்தேன்" Even during the cross-examination of the PW3,

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:27 +0530
 21

this portion of the evidence was not challenged. Both the documents, the
FIR and the 57 report were simultaneously prepared and Ex.P8 the 57 report
which contains the signatures of both PW2 and 3 is not challenge by the
accused. Therefore the court holds that the prosecuting has complied with
sec.57 of the NDPS Act.
33.The next aspect that was agitated is the compliance of Section 52A of the
NDPS act. The prosecution has produced Ex.P6 which is the order passed by
this court in Crl.M.P.No.1513 of 2018 dated 26.04.2018, on an application
filed under sec.52A(2) of the NDPS Act. Under the said application pre trail
sample was taken and an order to destroy the contraband was also passed by
the Principle Special Court. PW2 in her chief examination has deposed that
“ மீதம் உள்ள கஞ்சாவை சட்டபிரிவு 52A NDPS Act-ன் படி அழித்திட

அனுமதிக்கேட்டு CRL.M.P.No.1513/2018 Dated 26.04.2018 மனு தாக்கல்

செய்தேன் அந்த மனுவில் பிறப்பிக்கப்பட்ட உத்தரவு அ.சா.ஆ.6 ஆகும்.

மீதம் உள்ள கஞ்சாவை அழிப்பதற்கு முன்பு நீதித்துறை நடுவர்

முன்னிலையில் ஆஜர் படுத்தப்பட்டு ஒவ்வொரு மூட்டையில் இருந்து

50 கிராம் வீதம் கஞ்சா மாதிரிக்காக என 6 மாதிரிகள் எடுக்கப்பட்டு

அதற்கு P1S3 முதல் P6S3 என குறியீடு செய்யப்பட்டது. அவை சா.பொ.

13 முதல் 18 வரை ஆகும். மாதிரிக்கு எடுக்கப்பட்டது போக மீதம் உள்ள

கஞ்சா உத்தரவின் படி அழிக்கப்பட்டது,” During the cross-examination of

PW2, on the aspect of complying with sec.52A it was brought out that “
பிரிவு 52ஏ-யின் கீழான மனுவை யார் தாக்கல் செய்தது என்றால் நான்

தான் தாக்கல் செய்தேன். மீதம் உள்ள கஞ்சாவை அழிப்பதற்கு

நீதிமன்றம் உத்தரவு பிறப்பித்தது என்றால் சரிதான். நீதிபதி முன்பு

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:36 +0530
 22

எடுக்கப்பட்ட மாதிரிகளை ரசாயன பகுப்பாய்விற்கு அனுப்பவில்லை

என்று சொன்னால் சரிதான். நாங்கள் பகுப்பாய்விற்கு அனுப்பியது நான்

சம்பவயிடத்தில் எடுத்த மாதிரிகள் ஆகும்.” So, the above evidence brought

out by the learned counsel for the accused would show that the samples were
also taken in the presence of Magistrate and the samples that were sent to the
FSL were the samples that were taken by PW2 at the place of occurrence.
Through the above evidence the seizure by the PW2 and taking of samples at
the place of occurrence and sending it to the FSL through court are all
admitted. After the samples were taken in the presence of Magistrate the
counsel for the accused has not sought to send them again to the FSL.

34. During the cross-examination of the PW1 it was brought out that the crime
number was written on the MO’s at the place of occurrence itself. To the
court question PW1 has replied that when they left the police station they
saw the crime number and also saw as to what was the next crime number.
So, even if it is to be taken that the crime numbers were written, as desired
by the defence counsel and as deposed by the PW1, at the place of
occurrence itself with different pen it could not make any difference as it
was explained by PW1. This was not challenged. Therefore the process of
seizure and sampling is also proved by the prosecution.

35.The next aspect is the safety of the contraband and the delay in handing
over the properties to the FSL. PW2, in her cross-examination has deposed
that “ மாதிரிகளையும், கஞ்சாவையும் எங்கு வைத்திருந்தோம் என்றால்
பாதுகாப்பு அறையில் வைத்திருந்தோம். அந்த அறையில் வைப்பதற்கு

சம்பந்தமாக ஒரு பதிவேடு உள்ளது என்றால் சரிதான்.” So, PW2 has

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:41 +0530
 23

explained that the property that was seized was kept under the safe custody
at the police station. Mere non production of the records for the said purpose
would not affect the prosecution case as it is not a material document that
should be produced along with the Final report. If the properties were kept
separately in a Malkhana or a Godown then the requirements of the
production of records or receipts may be held relevant or necessary and the
judgement relied on by the Counsel may also be required to be discussed. It
is not case herein and therefore the non production of registers or records for
the safe custody for this period of 3 days is not material enough to affect the
prosecution case. Still it is to be noted that the Defense Counsel has not
sought for the production of those records. Mere delay in itself cannot be
said to be fatal. The Accused must show that he has been prejudiced by such
delay, which is not the case herein.
36.The Principle Special court has addressed letter to the FSL which is dated
08.12.2017. The chemical examination report states that it was received at
their lab on 11.12.2017. Therefore it was claimed that there has been an
illegal custody of the properties for these days. PW2 and 3 also admitted that
the properties were taken from court on 08.12.2017 and was handed over to
the FSL on 11.12.2017. The evidence of PW2 and 3 on this aspect does not
appear to the valid, even though it was explained that 09.12.2017 and
10.12.2017 were holidays.
37.It is to be seen that there is no record placed before this court where from it
can be concluded that the properties were taken from the court on
08.12.2017. In none of the records including the form 91 it has been stated
that the properties were taken back on 08.12.2017. Therefore this court holds
that it cannot be accepted that the properties were taken on 08.12.2017 and
Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:46 +0530
 24

were handed over to the FSL on 11.12.2017, with a delay of two days.
Therefore the evidence of PW2 and 3 are without any records and are
deemed to be made on presumptions. Further the chemical examiners report
clearly shows that there was no tampering of any seals found on the sample
packets received at the FSL. Therefore when there is no sign of any
tampering then this court holds that it cannot be concluded that the samples
that were taken from the court were not handed over to the FSL and hence
the judgement cited by the learned counsel for the accused reported in
Kumaresan and other Vs State and the one in State of Rajasthan Vs Gurmai
singh case are not applicable to the facts of this case.
38.On the question whether it is necessary to examine an independent witness
and as to whether a case can be seen with doubt where all the witnesses are
from the police department this court is inclined to refer to the following
judgements:

(a) Guru Dutt Pathak vs The State Of Uttar Pradesh AIR 2021 SUPREME
COURT 2257, AIRONLINE 2021 SC 234 it was held that “One another
ground given by the learned trial Court while acquitting the accused was
that no independent witness has been examined. The High Court has
rightly observed that where there are clinching evidence of eyewit-
nesses, mere non-examination of some of the witnesses/independent wit-
nesses and/or in absence of examination of any independent witnesses
would not be fatal to the case of the prosecution.
(b) In the case of Manjit Singh v. State of Punjab (2019) 8 SCC 529, it is
observed and held by this Court that reliable evidence of injured eyewit-

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:51 +0530
 25

nesses cannot be discarded merely for reason that no independent wit-

ness was examined.
(c) In the recent decision in the case of Surinder Kumar v. State of Pun-
jab (2020) 2 SCC 563, it is observed and held by this Court that merely
because prosecution did not examine any independent witness, would
not necessarily lead to conclusion that accused was falsely implicated.
(d) In the case of Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627,
after referring to the decision of this Court in the case of State of H.P. v.
Pardeep Kumar (2018) 13 SCC 808, it is observed and held by this
Court that the examination of independent witnesses is not an indispens-
able requirement and such non-examination is not necessarily fatal to the
prosecution case.
39.In the case in hand this court is inclined to hold that the evidence of the
witnesses have stood the test of scrutiny and sufficient and acceptable
reasoning has been given by the Witness and therefore this court holds that
the non-examination of independent witness cannot be said to be fatal.
Therefore this court holds that failure to examine any independent witnesses
cannot be said to be fatal under the facts of this case unless the Accused
shows as to how it has caused prejudice to them or that the police has some
motive against them or has acted with a malafide intent, which is not the
case herein.
40.Through the above evidence, the prosecution has proved the compliance of
all mandatory procedures. Therefore, once the mandatory procedures and its
compliance are proved, the possession of contraband with the accused also
stands proved and therefore the duty is on the accused to dispel with the
prosecution case in accordance with law. He has not done so. The learned

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:52:56 +0530
 26

Special Public Prosecutor submitted that only during the cross examination
of PW1 attempts were made to gain over him and with respect to the
answers given by him in the cross-examination, he was sought to be treated
as hostile. Later it was given a go-by because the answers has not made any
dent on the prosecution case. Since few supporting answers were obtained
from PW1, there was no serious cross-examination of the PWs in general.
Therefore, the court holds that the accused are guilty of the offence charged
with and therefore they are guilty of the offence punishable u/s. 8(c) r/w
20(b)(ii)(C) of NDPS Act.
41.In view of the foregoing discussions and the propositions of law cited above,
this Court holds that the accused is guilty of the offence under section 8(c)
read with 20(b)(ii)(C) of NDPS Act. After finding the guilty of the charges,
the accused was questioned under section 248(2) of Cr.P.C. regarding the
quantum of sentence to be awarded to them.
The accused has pleaded that “நான் குற்றம் எதுவும் செய்யவில்லை.

மாட்டுசாணத்தை வைத்து தான் இந்த பொய் வழக்கை

போட்டுள்ளார்கள். இந்த வழக்கிற்கும் எனக்கும் எந்த சம்பந்தமும்

இல்லை.”
42. In the result, this Court holds that the accused is guilty of the offence
punishable under section 8(c) read with 20(b)(ii)(C) of NDPS Act and
convicts him of the said offence and after hearing him on the quantum of
punishment to be imposed, as recorded above, sentences him under section
248(2) of Cr.P.C. to undergo Rigorous Imprisonment for 12 years, and to
pay a fine of Rs.1,00,000/- (Rupees One Lakh only), in default to undergo
Simple Imprisonment for a further period of 2 years. The accused are in

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:53:02 +0530
 27

judicial Custody in this case from 05.12.2017 to 25.05.2018 and from

18.06.2024 to till date. Therefore this period of incarceration already
undergone by the Accused is hereby ordered to be set off under section 428
of Cr.P.C.
43.The property namely ganja produced in R.P.R.No. 545/2017 is ordered to be
destroyed in accordance with the rules, either after the disposal of the
appeal, if any, preferred or after the expiry of the time prescribed for
preferring the appeal and the other property is Indica V2 white colour Car
bearing Registration No. AP 31 CC 2288 are ordered to be confiscated in
accordance with the rules, either after the disposal of the appeal, if any,
preferred or after the expiry of the time prescribed for preferring the appeal

Dictated to the Steno-typist, directly typed by her in computer and corrected

and pronounced by me in the open court, this the 17th day of April 2025.
Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:53:07 +0530

Additional District Judge

I Addl.Spl.Court for N.D.P.S. Act
Cases, Madurai.

List of witness examined by the Prosecution

PW1 - Tr. Kanchithalaivan
PW2 – Tr. Kausar Nisha
PW3 – Tr. Anand

List of Exhibits marked by the Prosecution

Ex.P.1 - Search Consent Letter
Ex.P.2 - Signature of P.W.1 in the confession statement
 28

Ex.P.3 - Seizure Mahazar

Ex.P.4 - Search Namuna
Ex.P.5 - Information Record
Ex.P.6 - Order copy of Crl.M.P.No.1513 of 2018, dated 26.04.2018.
Ex.P.7 - First Information Report
Ex.P.8 - Detailed Report filed u/s.57 of NDPS Act
Ex.P.9 - Form 91
Ex.P.10 - Requisition Letter to send the samples to the FSL
Ex.P.11 - Letter sent by the Court to FSL
Ex.P.12 - Chemical Analysis Report

List of Material Objects marked by the Prosecution

M.O. 1 - Standard Sample Ganja
M.O. 2 - Standard Sample Ganja
M.O. 3 - Standard Sample Ganja
M.O. 4 - Standard Sample Ganja
M.O. 5 - Standard Sample Ganja
M.O. 6 - Standard Sample Ganja
M.O. 7 - Standard Sample Ganja
M.O. 8 - Standard Sample Ganja
M.O. 9 - Standard Sample Ganja
M.O.10 - Standard Sample Ganja
M.O.11 - Standard Sample Ganja
M.O.12 - Standard Sample Ganja
M.O.13 - Ganja sample taken in the presence of the Judicial Magistrate
M.O.14 - Ganja sample taken in the presence of the Judicial Magistrate
Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:54:02 +0530
 29

M.O.15 - Ganja sample taken in the presence of the Judicial Magistrate

M.O.16 - Ganja sample taken in the presence of the Judicial Magistrate
M.O.17 - Ganja sample taken in the presence of the Judicial Magistrate
M.O.18 - Ganja sample taken in the presence of the Judicial Magistrate

List of Witness, Exhibits and M.O’s on the side of Accused: NIL

Digitally signed by
SHANMUGAMURTHI
SHANMUGAMURTHI HARIHARAKUMAR
HARIHARAKUMAR
Date: 2025.04.17
17:53:22 +0530

Additional District Judge

I Addl .Spl Court for N.D.P.S.
Act Cases, Madurai.