Nilu Kumar Barik vs The State Rep by, Inspector of Police,

CRL A.No.671 of 2026
IN THE HIGH COURT OF JUDICATURE OF MADRAS
Reserved on : 28.09.2026
Pronounced on : 16.10.2026
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.A.No.671 of 2026
and
CRL MP No.9090 of 2026
CNR: {HCMA010721622026}
Nilu Kumar Barik ... Appellant / Sole Accused

Vs.
The State Rep.by
Inspector of Police,
Kamanaickenpalayam Police Station,
Tiruppur District,
(Crime No.38/2022) ... Respondent / Complainant

PRAYER: Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure r/w. Section 415 of BNSS, to set aside the
Judgment passed in C.C.No.52/2022, dated 31.07.2025, on the file of
the Additional District Judge / Special Court under EC Act / NDPS Act
Cases, Coimbatore.

For Appellant : Mr.T.Balaji

For Respondent : Ms.Sharada Vivek
Addl.Public Prosecutor
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CRL A.No.671 of 2026
JUDGMENT

The Appellant, sole accused in C.C.No.52 of 2022, was
convicted by Judgment, dated 31.07.2025, by the learned Additional
District Judge / Special Court under EC Act / NDPS Act Cases,
Coimbatore. He was sentenced to undergo Rigorous Imprisonment
for 14 years and to pay a fine of Rs.1,50,000/-, in default, to undergo
Rigorous Imprisonment for one year, for the offence under Section
8(c) r/w 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as 'the NDPS Act').
Aggrieved by the same, the appellant has preferred this appeal.
2. The case of the prosecution, in brief, is that on
05.02.2022, at about 1.30 p.m., while P.W.5, the then Inspector of
Police, Kamanaickenpalayam Police Station, was on station duty, he
received secret information that a person was in illegal possession of
ganja for the purpose of sale near Sengodampalayam Pirivu. The
information was reduced into writing, entered in the General Diary
and forwarded to the Deputy Superintendent of Police. Thereafter,
P.W.5, along with P.W.4, Sub-Inspector of Police, P.W.3, Grade-I Police
Constable, other police personnel and the independent witnesses,
namely, P.W.1, Gurusamy and P.W.2, Balasubramanian, proceeded to
the place of occurrence and kept surveillance.
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CRL A.No.671 of 2026
3. According to the prosecution, at about 2.15 p.m., the
appellant was found walking along the said place carrying a white
coloured gunny bag. He was intercepted and questioned. The police
informed him of his right regarding search and obtained his consent.
On searching the gunny bag, 21 kilograms of ganja was recovered.
Two representative samples, each weighing 100 grams, were drawn
and sealed with the seal of the Station House Officer, and the
remaining contraband was also sealed. A seizure mahazar was
prepared in the presence of the witnesses and a confession statement
of the appellant was recorded. The appellant disclosed that he
purchased the contraband from Odisha at a lower price and intended
to sell the same in Tamil Nadu for a higher profit. He was arrested,
taken to the Kamanaickenpalayam Police Station along with the
contraband and the connected records, and a case in Crime No.38 of
2022 was registered for the offence punishable under Section 8(c)
r/w 20(b)(ii)(C) of the NDPS Act.
4. The appellant was produced before the learned Judicial
Magistrate, Palladam, and remanded to judicial custody on
05.02.2022. The seized contraband was produced before the Special
Court under Property Register No.67 of 2022, on 10.02.2022. The
samples were forwarded for chemical examination to the Forensic
Science Laboratory, Coimbatore, under a requisition dated
10.02.2022, and were received there on 15.02.2022. The Chemical
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CRL A.No.671 of 2026
Analyst's Report dated 22.02.2022 confirms that the samples
answered the tests for ganja. On completion of investigation, final
report filed before the Special Court, which took it on file as
C.C.No.52 of 2022 on 13.07.2022.
5. Copies of the relied-upon documents were furnished to the
appellant under Section 207 Cr.P.C. A charge under Section 8(c) r/w
20(b)(ii)(C) of the NDPS Act was framed. The appellant denied the
charge and claimed to be tried.
6. To prove its case, the prosecution examined P.W.1 to P.W.5,
marked Exs.P1 to P7 and produced M.O.1 and M.O.2. Of the exhibits,
Ex.P1 is the Secret Information Report and permission letter dated
05.02.2022; Ex.P2, the Consent Letter for search dated 05.02.2022;
Ex.P3, the Seizure Mahazar dated 05.02.2022; Ex.P4, Form-91 dated
05.02.2022; Ex.P5, the requisition letter for chemical analysis dated
10.02.2022; and Ex.P6, the Chemical Analysis Report dated
22.02.2022. M.O.1 is the remaining quantity of ganja and M.O.2 is
the representative sample.
7. P.W.1, Gurusamy and P.W.2, Balasubramanian were examined
as independent witnesses. P.W.1 deposed that the police apprehended
the appellant, who was carrying a white coloured gunny bag, in
which ganja was found and weighed 21 kg, that two samples of 100
grams each were drawn, and that the police prepared a document
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CRL A.No.671 of 2026
and obtained his signature before seizing the ganja. P.W.2 deposed
that he witnessed the search of the bag, in which some dry leaves
were found, which were stated to be ganja, that the Sub-Inspector of
Police weighed it and found it to be 21 kg, and that two samples were
taken in two packets. P.W.3 and P.W.4, members of police party, spoke
about the interception and search of the appellant, the recovery and
seizure of 21 kg of ganja, drawing and sealing of samples,
preparation of the seizure mahazar, recording of the confession
statement, arrest of the appellant and registration of the FIR; P.W.4
additionally spoke about the preparation of the consent letter. P.W.5,
the then Inspector of Police, deposed about the receipt and recording
of the secret information, forwarding it to the Deputy Superintendent
of Police, obtaining permission, proceeding to the spot, informing the
appellant of his right regarding search, preparation of the consent
letter, search and recovery, drawing and sealing of samples, seizure,
recording of the confession statement, arrest, registration of the FIR,
forwarding of the samples for chemical analysis, completion of the
investigation and filing of the final report.
8. When the appellant was questioned under Section 313(1)
(b) Cr.P.C. about the incriminating circumstances appearing in the
evidence of the prosecution witnesses, he denied the entire case as
false. No oral or documentary evidence was adduced on the side of
the defence.
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CRL A.No.671 of 2026
9. The trial Judge held that the requirement under Section 42
of the NDPS Act stood complied with, the procedure under Section
50 of the NDPS Act was followed, the contraband recovered from
the gunny bag carried by him, and recorded in paragraph 14 of the
judgment that the appellant understood Tamil and answered the
questions put to him under Section 313 Cr.P.C. Invoking the
presumptions under Sections 35 and 54 of the NDPS Act, the trial
Court convicted and sentenced the appellant, as stated above.

10. Mr.T.Balaji, learned counsel for the appellant, submitted
that the prosecution case is that the appellant was found carrying 21
kg of ganja in a gunny bag. P.W.5 said to have reduced the secret
information into writing in compliance with Section 42 of the NDPS
Act and forwarded it to the Deputy Superintendent of Police, but the
Deputy Superintendent of Police not examined to establish Ex.P1 was
in fact forwarded. Ex.P2, the consent letter relied upon to show
compliance with Section 50 of the NDPS Act, is in Tamil, and it is an
admitted position that the appellant native of State of Odisha and can
neither read nor write Tamil. The seizure mahazar is in Tamil. P.W.3
admitted that he did not know whether the appellant could read and
write Tamil, whereas P.W.4 stated that the appellant knew Tamil well,
which itself shows the infirmity in the prosecution case. Hence, there
was no valid compliance with the mandatory provisions. The
independent witness PW1 & PW.2 are silent with regard to appellant
knowing and understanding Tamil Language.
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CRL A.No.671 of 2026
11. Learned counsel further submitted that though the
seizure and recovery were effected on 05.02.2022, the contraband
was produced before the Court only on 10.02.2022, after a delay of
five days, and there was an unexplained delay in forwarding the
sample for chemical examination, the laboratory having received it
on 15.02.2022; the procedure under Section 52A of the NDPS Act for
drawing samples not followed; and, in support, reliance was placed
on the decision of the Hon'ble Supreme Court in State of Himachal
Pradesh v. Surat Singh reported in (2026 INSC 240) . P.W.1 and P.W.2,
projected as witnesses to the search and seizure, contradicted each
other: P.W.1 stated that the appellant was carrying a white gunny bag
and was intercepted by the police, whereas P.W.2 stated that the
appellant was standing along with two other persons with a gunny
bag, and no investigation conducted to ascertain the identity of other
two persons. P.W.5 registered the FIR and also investigated the case,
which has caused great prejudice, and there is non-compliance with
Section 57 of the NDPS Act. Learned counsel accordingly prayed for
allowing of the present appeal.
12. Ms.Sharada Vivek, learned Additional Public Prosecutor,
opposed the appeal and submitted that, on receipt of the secret
information, P.W.5 reduced it into writing, forwarded it to the Deputy
Superintendent of Police and obtained permission before proceeding
to the place of occurrence, which is evidenced by Ex.P1, and that the
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CRL A.No.671 of 2026
learned trial Judge has specifically found compliance with Section 42
of the NDPS Act. The appellant was informed of his right to be
searched before a Gazetted Officer or a Judicial Magistrate and he
expressed his willingness to be searched by P.W.5, pursuant to which
Ex.P2 was prepared in the presence of P.W.1 and P.W.2; in any event,
the contraband was recovered from the appellant, who was holding
gunny bag. The contraband weighed and found to be 21 kg, two
samples of 100 grams each were drawn, sealed with the seal of the
Station House Officer in the presence of the witnesses, remaining
contraband was separately sealed, proceedings were recorded under
Ex.P3 and forwarded to the Court through Ex.P4. The seized
contraband was produced before the Court at the time of remand and
was again produced after five days pursuant to the directions of the
trial Court, and thereafter remained in the safe custody of the Court;
therefore, there was no delay. The Chemical Analysis Report, Ex.P6,
confirms the nature of the contraband. The appellant, who had been
working as a JCB driver for about five years and residing in Palladam
Taluk, Tiruppur, is well conversant with the Tamil language, as
reflected in his confession statement, and he answered the questions
under Section 313 Cr.P.C. in Tamil. Once conscious possession was
established, the presumptions under Sections 35 and 54 of the NDPS
Act arose, and the appellant failed to rebut them. The learned trial
Judge has considered all the points raised on behalf of the appellant
and has rightly convicted him, and the appeal deserves to be
dismissed.
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CRL A.No.671 of 2026
13. This Court heard the submissions made by the learned
counsel on either side and perused the materials available on record,
including the evidence adduced before the trial Court.
14. This being a statutory appeal, it is the duty of this Court to
re-appreciate the evidence and to arrive at its own conclusion on
facts and law. The offence alleged is one under the NDPS Act, which
prescribes stringent punishment and reverses the burden of proof in
certain circumstances. It is therefore settled that the statutory
safeguards must be strictly observed and that the presumptions
under Sections 35 and 54 of the NDPS Act arise only after the
prosecution has first established, beyond reasonable doubt, the
foundational facts, namely, the recovery of the contraband from the
conscious possession of the accused and the integrity of the seizure,
sampling and analysis. The question that falls for consideration is
whether the prosecution has discharged its initial burden.
15. The prosecution relied on P.W.1 and P.W.2 as independent
witnesses to the interception, search, weighing and sampling. The
very first fact to be proved, namely, how and in what circumstances
the appellant was found and the gunny bag came to be seized from
him, is not consistently and corroboratively spoken to by them. P.W.1
stated that the appellant was carrying a white coloured gunny bag
and was intercepted by the police. P.W.2, on the other hand, stated
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CRL A.No.671 of 2026
that the appellant was standing along with two other persons with a
gunny bag. The prosecution case, as put forth by P.W.5 and the police
witnesses, is that a single person was found walking with a bag
carrying on his head. The version of P.W.2 introduces two more
persons at the scene, and the prosecution is silent as to who they
were, why they were not questioned or arrested, and whether the
bag belonged to the appellant or to one of them. Admittedly, no
investigation was conducted to ascertain their identity. This is not a
minor discrepancy; it goes to the root of the prosecution case on
possession. Further, P.W.1 stated that the police prepared a
document and obtained his signature before seizing the ganja, which
indicates that the document was prepared and signed even before
the recovery was made, and cannot be said to record what the
witness seen. P.W.2 described the substance found in the bag as dry
leaves which, he was told, was ganja, and thus has no knowledge of
his own regarding its nature. The appellant has contended that they
are stock witnesses; whether or not they are so, the manner in which
they have deposed does not inspire confidence, and their evidence,
being contradictory on the basic facts of the interception and search,
cannot be accepted as the independent corroboration that the law
expects when the search is conducted by the police party alone.
16. It is not in dispute that the appellant hails from the State
of Odisha. Though the prosecution contends that he is conversant
with Tamil, the materials show that he is unable to read or write
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CRL A.No.671 of 2026
Tamil and possesses only a limited working knowledge of the
language. P.W.3 candidly admitted that he did not know whether the
appellant could read and write Tamil, while P.W.4 stated that the
appellant knew Tamil well; the police witnesses themselves are thus
at variance on a fact which is vital to the validity of the consent letter
and the mahazar. Ex.P2 and Ex.P3 are in Tamil. Neither the seizure
mahazar nor the confession statement indicates that its contents
were read over and explained to the appellant in a language known
and understood and that, after understanding them, he affixed his
signature. No evidence has been brought on record to show that
Ex.P2 or Ex.P3 was translated or explained to him in his native
language of Odia or Hindi.
17. The only basis on which the prosecution asserts that the
appellant is conversant with Tamil is that he was working as a JCB
driver and residing in Palladam Taluk for about five years, which,
according to the learned Additional Public Prosecutor, is reflected in
his confession statement, is concern, that statement is inadmissible
in evidence, confession is limited to the fact of recovery of
contraband and no independent evidence of such residence or
employment has been pointed out. Likewise, the observation of the
trial Judge that the appellant understood Tamil and answered the
questions under Section 313 Cr.P.C. in Tamil shows, at best, that he
can follow simple spoken Tamil in Court proceedings; it does not
establish that, on 05.02.2022, he could read and understand the
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CRL A.No.671 of 2026
written contents of a consent letter and a mahazar drawn up by the
police, or that he understood the nature of the right that is said to
have been explained to him. The learned counsel for the appellant
has raised this point as non-compliance with Section 50 of the NDPS
Act. The law on the point is that Section 50 is mandatory when a
person is searched, and the suspect must be made aware of his right
to be searched before a Gazetted Officer or a Magistrate; substantial
compliance is not enough. It is equally settled that Section 50
attaches to the search of the person of the suspect and does not
extend to a bag, briefcase or similar article carried by him (State of
Himachal Pradesh v. Pawan Kumar, (2005) 4 SCC 350) .
18. In the present case, the contraband said to have been
recovered from the gunny bag and the trial Judge himself noted that
nothing incriminating was recovered from the appellant. This Court
therefore does not rest its conclusion on a technical breach of
Section 50 of the NDPS Act. But the prosecution itself chose to
project Ex.P2 as proof that the appellant was informed of his rights
and voluntarily consented to the search, and Ex.P3 as the
contemporaneous record of the seizure. When the document on
which the prosecution relies for the fairness of the search was in a
language the appellant cannot read, and nothing shows that it was
explained to him, its evidentiary value is seriously diminished and the
claim that the search and seizure were conducted in a fair and
transparent manner stands weakened.
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CRL A.No.671 of 2026
19. It is the case of the prosecution that P.W.5 reduced the
secret information into writing and forwarded it to the Deputy
Superintendent of Police. The Deputy Superintendent of Police has
not been examined, and there is no evidence for despatch or receipt
of Ex.P1 other than the testimony of P.W.5. At the same time, the
place of occurrence is a public place, a road near Sengodampalayam
Pirivu, and the search was conducted at about 2.15 p.m. This Court,
therefore, does not hold that the alleged non-proof of forwarding of
Ex.P1, by itself, vitiates the trial. Likewise, the contention regarding
Section 57 of the NDPS Act, which is directory in nature, is not taken
as an independent ground. Yet, since the prosecution itself pleaded
and sought to prove compliance with these provisions, the failure to
establish it through reliable evidence is a circumstance that must be
weighed along with the other infirmities.
20. The next, and in the view of this Court the most serious,
infirmity relates to the drawing of samples and the custody of the
seized material. The samples are said to have been drawn by the
police at the spot and sealed with the seal of the Station House
Officer, who is also the investigating officer. It is not the case of the
prosecution that an inventory of the seized contraband was prepared
and certified, or that representative samples were drawn in the
presence of, and certified by, a Magistrate, in the manner
contemplated by Section 52A of the NDPS Act. The Supreme Court
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CRL A.No.671 of 2026
has directed sampling must be done before a Magistrate and the
Magistrate's certification obtained, so that the samples tested are
demonstrably representative of what was seized (nion of India v.
Mohanlal, (2016) 3 SCC 379) . The learned counsel for the
appellant has also relied on the decision of the Supreme Court in
State of Himachal Pradesh v. Surat Singh reported in (2026) 102
OCR (SC) 549 in this regard. This Court is conscious that non-
compliance with Section 52A does not, in every case, make the
conviction unsustainable if the prosecution otherwise proves, by clear
and cogent evidence, that the samples were properly drawn and that
the seized material and the samples remained intact till they reached
the laboratory. The question is whether the prosecution has done so
here.
21. The seizure was effected on 05.02.2022 and the appellant
was produced before the learned Judicial Magistrate, Palladam, and
remanded on the same day. However, the contraband was produced
before the Special Court only on 10.02.2022, under Property Register
No.67 of 2022, after five days, and the samples were forwarded for
chemical examination only under Ex.P5 dated 10.02.2022 and
reached the laboratory on 15.02.2022. Ex.P4, Form-91, is dated
05.02.2022, yet the articles reached the Court five days later. The
explanation offered by the learned Additional Public Prosecutor, that
the contraband was produced at the time of remand and again after
five days on the direction of the Court, finds no support in the
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CRL A.No.671 of 2026
evidence of any of the witnesses, and no evidence has been pointed
out regarding the place and the custody in which the sealed
contraband and the sealed samples were kept between 05.02.2022
and 10.02.2022, in whose custody they were, whether the seals
remained intact, and when and by whom they were taken to the
Court and the laboratory. The chain of custody of contraband not
produced to confirm the integrity of the seized material and the
samples for the intervening days is held without any intervention,
the link between what was allegedly seized from the appellant and
what was analysed in the laboratory is not established beyond
reasonable doubt. The delay in the prosecution has not been
explained, and the suspicion of the appellant that the case has been
foisted cannot be brushed aside.
22. According to the prosecution, the quantity recovered was
21 kg, which exceeds the commercial quantity of 20 kg in respect of
ganja by only 1 kg. The offence has been charged under Section
20(b)(ii)(C), which turns entirely on this quantity. From the records it
is seen that the ganja was contained in a gunny bag along with some
flowers, and those flowers were separated/spilled before the
weighing. In such circumstances, the prosecution was required to
clearly establish what exactly was weighed, whether the entire ganja
was retained for weighing, and whether the stated 21 kg represented
the actual net weight of ganja alone. In the absence of reliable
evidence regarding the weighing process and the exclusion or loss of
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any material before weighing, it cannot safely be concluded that the
net quantity of ganja exceeded the commercial-quantity threshold of
20 kg.

23. The prosecution has sought to rely on the confession
statement of the appellant for establishing his intention to sell and
his familiarity with Tamil. The statement was recorded by the
Inspector of Police, P.W.5, while the appellant was in the custody of
the police. A confession made to a police officer cannot be proved as
against a person accused of an offence, in view of Section 25 of the
Indian Evidence Act, 1872. Confession recorded by an officer vested
with the powers of investigation under the NDPS Act is likewise
inadmissible in the trial of an offence under the Act Pulukuri
Kotayya Vs. Kind Emperor AIR 1947 Privy Council 65 . The
confession statement is, therefore, wholly excluded from
consideration, and the assertion that the appellant intended to sell
the contraband, or that he had been residing in the Tiruppur area
and was conversant with Tamil, stands unsupported by any legal
evidence.

24. The learned trial Judge held that the requirements of
Sections 42 and 50 of the NDPS Act were satisfied and, relying on
the answers given under Section 313 Cr.P.C., held that the appellant
understood Tamil. The learned trial Judge, however, did not advert to
the contradictions between P.W.1 and P.W.2 on the very manner in
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which the appellant was found, the presence of two other persons at
the spot, the preparation of the document before the seizure, the
failure to follow the procedure under Section 52A of the NDPS Act,
and the unexplained retention of the seized material and the samples
for five days without proof of safe custody. The presumptions under
Sections 35 and 54 of the NDPS Act were invoked without first
examining whether the foundational facts had been proved beyond
reasonable doubt. The learned trial Judge also gave weight to the
confession statement and the appellant's stay in the Tiruppur area,
which could not have been looked into. This Court from the records
finds confession, search report, seizure report, 313 questioning all in
Tamil Language. In the penultimate page, the appellant written in
Hindi, on translation it is found writing is “ I was made to
understand from Tamil to Hindi and I am signing. But without any
supporting material. Thus, it is clear the appellant is conversed only
in Hindi and not in Tamil Language. The accused must know and
understand the material against him in the chargesheet. That in the
essence of Article 21 of the Constitution of India on the facts of the
present case it is found breached and violated.
25. For the reasons stated above, this Court is of the
considered view that the prosecution has not proved beyond
reasonable doubt the recovery of 21 kg of ganja from the conscious
possession of the appellant, nor the integrity of the seizure, sampling
and analysis. The benefit of doubt must, therefore, go to the
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CRL A.No.671 of 2026
appellant. The conviction and sentence recorded by the trial Court,
are unsustainable and liable to be set aside.
26. In the result, this Criminal Appeal is allowed and the
appellant is acquitted of all the charges. The conviction and sentence
passed in C.C.No.52 of 2022, by the learned Additional District
Judge / Special Court under EC Act / NDPS Act Cases, Coimbatore,
vide Judgment dated 31.07.2025, are set aside. The appellant is
directed to be released forthwith unless his presence is required in
connection with any other case. The Bail bond, if any, executed by
the appellant shall stand cancelled. The fine amount, if any, paid shall
be refunded to the appellant. Consequently, the connected Criminal
Miscellaneous Petition is closed.

16.10.2026
Index : Yes/No
Internet : Yes / No
mpk
Note : Issue order copy forthwith.

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CRL A.No.671 of 2026
To
1. The Additional District Judge / Special Court under EC Act /
NDPS Act Cases, Coimbatore.
2. The Superintendent, Central Prison, Coimbatore.
3. The Inspector of Police,Kamanaickenpalayam Police Station,
Tiruppur District,
4. The Public Prosecutor, High Court, Madras.

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CRL A.No.671 of 2026
M.NIRMAL KUMAR, J.
mpk
Pre-Delivery Judgment made in
CRL.A.No.671 of 2026
16.10.2026
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