(Prayer: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C., to call for the records relating to the judgment in C.C.No.389 of 2021 dated 30.03.2023 on the file of the learned I Additional Special Court for NDPS Act Cases, Madurai and to set aside the same against this appellant.

This Criminal Appeal is filed under Section 374 of Cr.P.C., to call for the records relating to the judgment of conviction and sentence passed in C.C.No.389 of 2021 dated 30.03.2023 on the file of the I Additional Special Court for NDPS Act Cases, Madurai and to set aside the same against the appellant/accused No.2 and acquit him for the charge leveled against this appellant.

This Criminal Appeal is filed under Section 374 (2) of Cr.P.C., to call for the records in C.C.No.389 of 2021 dated 30.03.2023 on the file of the learned I Additional Special Court for NDPS Act Cases, Madurai and set aside the same against this appellant.)

Common Judgment:

1. Since the appellants in all the three appeals were arrayed as accused in the same crime number, these appeals are taken up together for hearing and disposed by way of this common judgment.

2. The appellants are the accused in C.C.No. 389 of 2021 on the file of the First Additional Special Court for Exclusive Trial of NDPS Cases, Madurai. They have filed these appeals challenging the conviction and sentence imposed on them for the offence under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act, to undergo 10 years’ rigorous imprisonment each and to pay a fine of Rs. 1,00,000/- each, in default to undergo 12 months’ rigorous imprisonment each.

3. According to the prosecution, P.W.3 received secret information on 26.06.2021 at about 05.30 hours regarding the illegal possession and transportation of a large quantity of ganja in a Hyundai Creta car bearing Registration No. TN-58-BW-0155 and a Splendor motorcycle bearing Registration No. TN-58-AF-0322, near Veeramudian Koil, opposite Kanmaykarai Road, Muthupatti, Madurai. P.W.3 reduced the information into writing, made the corresponding entry in the General Diary, and forwarded it to his immediate superior, P.W.4, after complying with the mandate of Section 42 of the NDPS Act. Thereafter, proceeded to the place of occurrence along with the informer and P.Ws.1 and 2. Upon reaching the spot, the informer identified the vehicles. The police surrounded the accused, conducted a search after complying with the mandatory procedures under the Act, and allegedly recovered 40 kilograms of ganja from their possession. The accused were arrested; their confessions were recorded; and the contraband was seized. P.W.3 also prepared a report under Section 57 of the NDPS Act and submitted it to the Superior Officer. A case was registered in Crime No. 357 of 2021, and the accused were remanded to judicial custody. P.W.4 thereafter took up the investigation, examined the witnesses, collected the chemical analysis report, and filed the final report before the First Additional Special Court for NDPS Cases, Madurai, which was taken on file as C.C.No.389 of 2021.

4. After taking cognizance, the Trial Court issued summons to the accused, furnished copies under Section 207 Cr.P.C., framed charges, and questioned the accused. The accused pleaded not guilty and sought to face the trial.

5. To prove the case, the prosecution examined P.W.1 to P.W.4, marked Exhibits Ex.P1 to Ex.P16, and produced Material Objects M.O.1 to M.O.9. After completing the prosecution evidence, the Trial Court questioned the accused under Section 313 Cr.P.C., wherein they denied the entire occurrence. In particular, A2/Rajjiyaprabhu @ Karuvayan stated that he was never involved in the alleged crime; that he was picked up earlier and assaulted by the police; that his leg was fractured; and that he was admitted in the hospital, the remand was also made then. He further alleged that the police threatened him not to disclose about the assault, stating false cases would be framed against his family members. A3 also made detailed explanation and he was picked up from his car and police assaulted him and took his car and taken to his shop and further brought to police station and registered false case as if he found possession of Ganja. Similarly, A1 also explained that the police officer took him under the guise of enquiry from his house and registered false case. No defence witnesses or documents were produced.

6. The Trial Court, after considering the entire evidence, convicted the accused and imposed the impugned sentence. The appellants have now filed the present appeals before this Court.

7. The learned counsel for the appellants submitted that there was total non-compliance with Section 42 of the NDPS Act, and that the alleged written report is a later creation. The non-production of the police diary and General Diary also indicates false implication. It was argued that the accused were arrested earlier without any recovery and that the entire case was built to their convenience subsequently. Several material contradictions in the prosecution evidence allegedly show that the documents were fabricated. It was specifically argued that A2 who had suffered a grievous leg fracture due to police assault, was admitted in the hospital, and was remanded during his hospitalisation. The Trial Court failed to consider how an accused admitted in the hospital with a fractured leg could have simultaneously been present at the place of occurrence leading to recovery. The prosecution’s explanation that A2 sustained the injury while trying to escape is unsupported and contrary to medical records. The learned counsel further submitted that the seizure mahazar (attachi/recovery mahazar) does not bear the signatures of A2 and A3, and there is no claim by the prosecution that they refused to sign. In the absence of the accused’s signatures, the very foundational document proving seizure from the accused becomes doubtful. The learned counsel therefore prayed that the appellants be acquitted.

8. On the other hand, the learned Additional Public Prosecutor submitted that the absence of the accuseds' signatures in the athachi is not fatal when the prosecution evidence of P.W.1 to P.W.3 is cogent and trustworthy. He contended that signatures are not mandatory and that the presence of the accused at the spot is well established by the oral and documentary evidence. The alleged injuries and subsequent hospitalization, according to the prosecution, do not discredit the recovery.

9. This Court considered the rival submissions made by the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the respondent and perused the materials available on record and the precedents relied upon by them.

10. The question that arise for consideration of this Court is as follows:

                   (i)Whether the learned trial Judge is correct in convicting the appellants under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act?

11. It is settled principle that in the case of offence of grave nature, the initial burden of the prosecution is heavy. It is the duty of the prosecution to prove the presence of the appellants and their conscious possession, to find them guilty under Secton 8(c) r/w 20(b)(ii)(C) of NDPS Act and to invoke the presumption under Section 54 of the NDPS Act.

12. In this case, recovery is made in the heart of the city and during peak hours. The prosecution came forward with theory that there is no necessity to examine independent withnesses even if the recovery is made in the heart of the city. Hence, it is the duty of the Court to assess the trustworthiness of the police witnesses with close scrutinity.

13.1. To prove the presence of the accused at the place of occurrence and their conscious possession of the contraband, the prosecution examined three witnesses. P.W.3 is the search officer, and P.W.1 and P.W.2 accompanied P.W.3 at the time of the alleged search. P.W.1, in his chief examination, stated that the informer identified three persons standing near a car and a two-wheeler. However, in clear contradiction, during his cross-examination, he stated that both the car and the two-wheeler had been proceeding towards the place of occurrence and were intercepted and stopped by the police party. P.W.2, in his chief examination, gave a different version altogether, stating that the informer identified the standing accused, whereupon the search party surrounded and apprehended them, and thereafter the accused disclosed the possession of ganja. He did not speak at all about the presence of any vehicle at the spot. P.W.3, the search officer, in his chief examination, deposed that the informer identified the accused standing near the vehicle. However, in his cross-examination, he admitted that when the police party reached the place of occurrence, neither the bike nor the car was present.

                  

He ascertained that the police stopped the vehicle and conducted a search. There is no clear evidence as to which accused drove the car to reach the place of occurrence, and who rode the two-wheeler to the spot. It is the specific case of the search officer (P.W.3) that all the accused jointly transported the ganja in the dicky of the car. However, P.W.2, who is the accompanying witness, specifically deposed that the accused were alone standing at the spot and that the police party apprehended them on the identification of the informer and he did not disclose anything about the persons in the car or the two-wheeler and there was no reexamination to clarify this aspect.

                   13.2. In view of these material contradictions relating to whether the contraband was recovered from the car or from the persons of the accused, there is no cogent evidence to support the prosecution version that the recovery was made from the car as alleged. When P.W.2 deposed that the contraband was recovered from the accused, he did not speak about the presence of the car or the two-wheeler, whereas P.W.1 and P.W.3 gave inconsistent versions regarding the recovery of ganja from the moving car or from the accused standing near car and bike.

                   13.3. This Court finds that these discrepancies, not only create serious doubt about the recovery was made from the car and also, go to the root of the case and considering the special circumstances of the case that the accused have taken a specific plea that they were already illegally detained at the police station much prior to the alleged occurrence. According to search officer PW3 he arrested all accused and brought to police station. But all the accused were not produced before learned judicial magistrate for remand. The second accused was admitted in the hospital and was remanded at hospital on next day only with grievous injuries on leg and small injuries in his hand. It is the specific case of the accused A2 and A3 that they were kept in illegal custody by the police from 25.06.2021 onwards and were detained for more than 30 hours before they were produced before the learned Judicial Magistrate for remand. A specific question was put to the police officer during cross-examination, and he categorically admitted that the accused had never attempted to escape from the scene of occurrence. In these circumstances, the grievous injuries sustained by the accused, namely fractures on the leg, assume considerable significance and must be examined in the light of the statements made by the accused under Section 313 of Cr.P.C., regarding illegal custody. It is the specific case of the second accused that he was not present at the place of occurrence, that he was assaulted by the police, and that his leg was fractured, necessitating hospitalization. To substantiate this plea, the Court finds several supporting materials from the prosecution documents itself. The search officer (P.W.3) specifically stated that, on seeing the police, the accused did not attempt to escape from the scene and that no injuries were caused at the place of occurrence. All contemporaneous documents prepared at the spot categorically state that there were no injuries on the accused. In these circumstances, there is no explanation from the investigating officer as to how the second accused came to be admitted to the hospital and why he was not produced for remand along with other accused. There is also no clear evidence regarding the timing of the injuries sustained by the accused—whether such injuries were sustained prior to or after the alleged occurrence. It is the consistent defence of the accused that they were assaulted in the police station prior to the alleged recovery. Significantly, the doctor who treated the second accused was not examined to clarify the nature, timing, and cause of the injuries. It was the bounden duty of the prosecution, in all fairness, to produce the medical records and examine the medical officer to establish that the accused was admitted to hospital only after the alleged recovery. P.W.4 has admitted that he did not examine the Doctor and collect medical record. The failure to do so is a serious lapse on the part of the prosecution and further weakens its case.

                   13.4. Only at a belated stage during examination did the investigating officer state that the second accused was trying to escape from the scene of occurrence. However, this explanation is belied by the prosecution’s own records. The arrest memo, Section 50 and Section 57 Cr.P.C. reports, and other contemporaneous documents do not disclose any attempt by the accused to escape from the scene of occurrence. Further, the evidence of P.W.4 clearly indicates that the police were present when the accused came out, and there was no untoward incident at the place of occurrence.

                  

                   13.5. Even according to the evidence of P.W.3, it is admitted that the accused had not sustained any injuries at the time of the Submission of report under Section 57 of the NDPS Act, nor is there any mention of injuries in the arrest memo or other contemporaneous records.

                  

                   The absence of any explanation for the grievous injuries sustained by the accused, coupled with the categorical admissions of the prosecution witnesses that the accused did not attempt to escape makes the prosecution case doubtful and seriously undermines the prosecution case and it lends credence to the defence version. Thus, the prosecution’s explanation is inconsistent with its own documentary evidence.

                   13.6. From the above circumstances, this Court is of the considered view that the defence version that the accused were illegally detained and assaulted in the police station prior to the alleged recoveries is more probable. This defence appears probable when the evidence is assessed in the light of the surrounding circumstances.

14. In the case of the recovery, atthachi (Seizure mahazar) is a vital document. In the present case, the prosecution agency, at the time of trial, produced two seizure mahazars allegedly bearing the signatures of some of the accused. However, the copies of the seizure documents served upon the accused under Section 207 Cr.P.C., did not contain the signatures of the accused, as seen in the documents produced before this Court. However, only the signature of one accused A1 is found in Exhibit P4, and similarly, only a signature of A1, 3 relating to the recovery of vehicle is found in the other document. In the said circumstances, the discrepancy relating to the presence and absence of signatures in the seizure mahazars, namely, the documents produced before the Court and the copies furnished to the accused under Section 207 Cr.P.C. assumes significance and is a relevant factor in deciding whether a reasonable doubt arises in the prosecution case. The duty of the prosecution is to serve documents under Section 207 of Cr.P.C., with accuracy and without any manipulation. The said served copies should be similar to the document marked before the Court at the time of trial. Here there is a material dis-similarity between copies served upon the accused and produced before the Court as admitted by the Investigating Officer in the following version:

                  

The said dis-similarity coincide with the case of falsity in preparation of document by keeping them under illegal custody and obtaining signature in blank paper by assaulting them. There is no explanation about the discrepancy. The defence case is that the accused were illegally detained and that the alleged recovery and seizure were fabricated by creating documents and no recovery was made from them and false case was registered on the basis of the illegal detention much prior to the occurrence and number of documents were manipulated. Therefore, this Court holds that this discrepancy casts serious doubt on the genuineness and reliability of the documents relied upon by the prosecution.

15. In murder cases and theft cases normally the recovery is proved through the examination of the Village Administrative Officer on the basis of the disclosure statement made under Section 27 of the Indian Evidence Act. In the said type of cases, absence of the signature of the accused has no significance for the reason that conviction need not be passed on the basis of the recovery alone. But, under the NDPS Act, possession of the contraband itself is offence and hence recovery is to be proved and the Act casts reverse burden on the accused under Section 54 and 35 of the NDPS Act and hence, recovery mahazar is basic document to prove the recovery from the accused when their signature and the same is necessary to prove their presence with contraband unless prosecution established that the accused refused to sign the recovery mahazar. The presence of the accused at the scene of the occurrence in the absence of the signature in the recovery mahazar is not believable one. If the case of the prosecution is that all the accused had conscious possession of the contraband and the same was recovered, in all fairness, the police officers should have obtained signature of all accused in the recovery mahazar. It is not the case of the search officer, accused refused to sign the recovery mahazar and even the said theory goes against their record. They have obtained the signature of the accused in the other documents and therefore, in such circumstances, two legal inferences are available namely, either the presence of the accused in the place of occurrence is doubtful and false case was registered or search officer failed to obtain signature in the athachi with intention to aid the accused to get acquittal from the case. In these type of cases, to assess the trustworthyness of the police witness it is desirable to see whether there is basic compliance of the procedure under NDPS Act.

                   15.1. In Exhibit P4 [Recovery mahazar relating to the contraband], the signatures of the accused no 2,3 are conspicuously absent. Likewise, in Exhibit P5 [Recovery mahazar relating to the vehicle], the signature of the accused no2 is also conspicuously absent. There is no evidence on record to establish that all the accused were travelling together or were jointly involved in the alleged illegal transportation and possession of contraband. It is not the case of prosecution that all the accused conspired together and charge under 29 of the NDPS Act had been framed and adequate material had been produced. This Court finds no material circumstances to infer any unholy union between three accused. Even as per contradictory version whether car is present or not, the contraband was stated to have been found in a Hyundai car. In both versions of the prosecution case, there is no consistent or reliable evidence regarding recovery. The case of the prosecution witness is that the contraband was seized from all the accused. If that version were true, the signatures of all the accused ought to have been obtained in the seizure documents. To prove the presence of the appellant at the scene of occurrence, the officer should have obtained the signature of the accused Nos.2 and 3 in the athachi/recovery mahazar, Ex.P.4. The absence of signature of accused in the athachi/recovery mahazar, creates a doubt in the mind of this Court with respect to the version of P.W.1, P.W.2 and P.W.3 as regards the presence of the accused and recovery of the contraband. To prove the involvement, search officer has to obtain the signature of the accused in the recovery mahazar. If the case of the prosecution is that the accused refused to sign in the atthachi, it should be proved through other means. This Court finds the defence version of illegal detention much prior to occurrence is plausible and worthy of consideration for several reasons. Once such a probability is established, the prosecution case that the recovery was effected on 26.06.2021 at the place of occurrence becomes doubtful. Consequently, the alleged recovery becomes suspicious.Hence, the alleged recovery of contraband from the accused is unbelievable.

16. Above conclusion is further strengthened by the following inconsistencies and infirmities in the prosecution evidence:

                   16.1. According to P.W.3, the recovery mahazar was prepared at the place of occurrence and was printed using a portable printer brought by P.W.2 connecting the printer inside a motor room. However, the Investigating Officer admitted that he did not enquire about the availability of an electricity connection in the motor room. The specific defence case is that the motor room was non-functional and not in use. In such circumstances, preparation and printing of documents in the said motor room using the electricity is highly doubtful.

                   16.2. Further, the signatures of the accused are not found on the dispatch or forwarding documents. The manner in which samples were allegedly drawn from as many as 20 parcels also assumes significance. According to the prosecution, two gunny bags contained 10 packets each, each packet weighed 2 kilograms, totalling 40 kilograms of ganja were seized. However, there is no clear and consistent evidence to explain how samples were drawn from all the packets in a transparent and tamper-proof manner.

                   16.3. These material contradictions and procedural lapses strike at the very root of the prosecution case and seriously undermine the credibility of the alleged recovery. According to the prosecution witnesses, the contraband was allegedly taken from two gunny bags, but the evidence as to the manner in which the contents were handled is unclear. At one stage, it is stated that the contents of both bags were mixed together; and then it is stated that samples were taken separately from each bag; and elsewhere it is stated that samples were taken from all ten packets in each gunny bag. This inconsistency goes to the root of the prosecution case and renders the sampling procedure doubtful.

                   16.4. Further, none of the contemporaneous documents bear the seal of the Station House Officer (SHO). Even the sample packets do not bear proper labels, seal descriptions, or signatures of the accused or the attesting officers. There is also a clear conflict in the evidence regarding the use of the police station seal. One witness deposed that the seal was not taken at all, while another witness stated that he was unaware whether the seal was used. Such contradictory evidence creates serious doubt about the sanctity of the sealing process and the manner of arrest and recover.

                   16.5. Apart from the above, there are several material contradictions relating to the seizure of the vehicle and the preparation of documents at the place of occurrence. Taking all these aspects together, this Court is constrained to hold that the prosecution has miserably failed to prove its case beyond reasonable doubt.

17. Coming to the compliance of Section 42 of the NDPS Act, P.W.3, the search officer, deposed that he received secret information from an informant and made an entry in the General Diary. However, he further stated that the said information was reduced into writing by P.W.2. P.W.1 and P.W.2, on the other hand, have not spoken anything about reducing the information into writing or about taking any printout. This contradiction creates a serious doubt regarding compliance with Section 42 of the NDPS Act.

                   17.1. Further, the alleged document containing the information was produced belatedly at the time of remand. Even according to P.W.3 and other police witnesses, there is no reference to such written information either in the report under Section 57 of the NDPS Act or in any other contemporaneous document. Thus, there is total absence of proof to show that the information was reduced into writing and communicated to the superior officer prior to the search.

                   17.2. The learned trial Judge held that compliance with Section 42 of the NDPS Act is not mandatory. However, this finding cannot be sustained in the light of the law laid down by the Constitution Bench of the Hon’ble Supreme Court in the case of Karnail Singh vs State of Haryana reported in 2009 (8) SCC 539 which has categorically held that Section 42 is mandatory in nature. The search officer who receives prior information is bound to reduce the same into writing and forward it to the immediate superior officer.

                   17.3. In the present case, the General Diary was also not produced before the Court. The Investigating Officer curiously stated that the said document need not be produced. There is also no reference to the alleged written information in any document prepared prior to remand. Hence, this Court has no hesitation in holding that there is total non-compliance with mandate of Section 42 of the NDPS Act.

18. It is well settled principle that the burden on the accused is not to prove the defence beyond reasonable doubt but only to create a reasonable doubt in the prosecution case. In the present case, such doubt clearly arises.

19. In view of the above circumstances, this Court finds that the defence plea of illegal custody and fabricated recovery cannot be brushed aside and this makes a serious dent in the prosecution case.

20. In view of the above discussion, the prosecution case suffers from serious procedural lapses and contradictions. In the peculiar circumstances of the present case, without sufficient material to prove the appellant's presence and their conscious and joint possession of the said contraband, the conviction and sentence imposed against the appellants under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act by the trial court is not legally sustainable. There exists two plausible versions of the occurrence, and in such circumstances, the accused are entitled to benefit of doubt. Therefore, this Court is inclined to acquit the accused, as the alleged recovery itself is not proved in the manner known to law and the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and hence, this Court is inclined to extend the benefit of doubt to the accused.

21. In result, the Criminal Appeals are allowed on the following terms:

21.1. The judgment passed in C.C.No.389 of 2021 dated 30.03.2023 on the file of the learned I Additional Special Court for NDPS Act Cases, Madurai is hereby set aside.

21.2. The appellants are acquitted from all the charges in C.C.No.389 of 2021 dated 30.03.2023 on the file of the learned I Additional Special Court for NDPS Act Cases, Madurai and directed to be released forthwith, unless their confinement is necessary in other cases.

21.3. Fine amount paid by the appellants shall be refunded to the appellants forthwith.

21.4. Bail bond executed by the appellants shall stand cancelled.