Crl.O.P.(MD)No.12002 of 2025 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Reserved on : 16.09.2025 Pronounced on: 23.09.2025 PRESENT The HONOURABLE MRS.JUSTICE S.SRIMATHY CRL OP(MD)No.12002 of 2025 Murgan @ Selvakumar ... Petitioner Vs. State of Tamil Nadu, Represented by, The Inspector of Police, Madurai NIB -CID Police Station, Madurai District. (Crime No.197 of 2014) ... Respondent For Petitioner : Mr.M.C.Swamy for Mr.R.Rayan For Respondent : Mr.A.Thiruvadi Kumar Additional Public Prosecutor PETITION FOR BAIL Under Sec.483 of BNSS, 2023. PRAYER :- For Bail in Cr.No.197 of 2014 on the file of the respondent police. ORDER: The Court made the following order:- The petitioner/Accused No.4, who was arrested and remanded to judicial custody on 10.06.2025 for the offences punishable under Sections 8(c) r/w 1/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 20(b)(ii)(C), 25, 29(1), of NDPS Act, in Crime No.197 of 2014, on the file of the respondent police, seeks bail. 2. The case of the prosecution is that on 14.10.2014 at about 09.00 hours, based on the secret information the respondent police intercepted vehicle bearing Registration No.TN-11-B-5313 Force Motors Trump and found the co- accused to be in joint possession of 320 kgs of ganja. The said contraband was seized by the respondent police and sample has also been taken. Hence, this complaint. 3. The case of the accused / petitioner is that the petitioner was arrested on 10.05.2025 and remanded into judicial custody. The petitioner is arrayed as accused No.4 and totally there are five accused. Charge sheet has filed on 16.08.2017 and the same was taken on file in C.C.No.240/2017. The petitioner is an innocent person and he has not committed any offence as alleged by the prosecution. However, the petitioner is arrested and he is languishing in jail from 10.06.2025. Therefore, he prays for grant of bail. 4. The learned Additional Public Prosecutor appearing for the respondent police opposed for grant of bail on the ground that the accused was in 2/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 possession of 320 kgs of ganja which is commercial quantity, hence there is a bar under section 37 of NDPS Act. The petitioner is having fifteen previous cases and the petitioner was evading arrest, inspite of long pending NBW, the petitioner was arrested on 10.06.2025. If the petitioner is led out on bail the same would hamper the trial. 5. The primary contention of the petitioner is that the even as per the prosecution case the petitioner was not in possession of the contraband. The charge sheet states that the other accused were in possession of the contraband and they were carrying the same to give it to the petitioner. The relevant portion of the charge sheet is extracted hereunder: “Nkw;gb xg;Gjy; thf;F%yj;jpy; ehd; kw;Wk; uh[gpuG nguk;gYhh; thypfz;lhGuj;ij Nrh;e;j Mde;j NtY (jw;NghJ ,Ug;G <f;fhl;Lj;jhq;fy; fpz;b nrd;id) TN 11 B 5313 vd;w vz;Zs;s Force motors Trump ruf;F thfdj;jpd; milahsk; njhpe;j ngah; njhpahj thfd chpikahsh; MfpNahh; xd;W $b fQ;rh flj;jp ,uhkehjGuj;ij Nrh;e;j KUfd; vd;w nry;tFkhh; vd;gtUf;F nfhLf;f Ntz;Lk; vd;w Nehf;fj;jpw;fhf” 6. Even the section 161(3) statement also states that the accused were carrying the contraband to give it to the petitioner. The relevant portion is extracted hereunder: 3/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 “Nkw;gb xg;Gjy; thf;F%yj;jpy; rjP]; kw;Wk; uh[gpuG nguk;gYhh; thypfz;lhGuj;ij Nrh;e;j Mde;j NtY (jw;NghJ ,Ug;G <f;fhl;Lj;jhq;fy; fpz;b nrd;id) TN 11 B 5313 vd;w vz;Zs;s Force motors Trump ruf;F thfdj;jpd; milahsk; njhpe;j ngah; njhpahj thfd chpikahsh; MfpNahh; xd;W $b fQ;rh flj;jp ,uhkehjGuj;ij Nrh;e;j KUfd; vd;w nry;tFkhh; vd;gtUf;F nfhLf;f Ntz;Lk; vd;w Nehf;fj;jpw;fhf” 7. As per counter filed by the respondent the petitioner has been implicated in this case as he was present in Rameswaram about to get the contraband 320 kgs of ganja and planned to smuggle to srilanka by boat, based on the confession of A1 Satish and FIR, the petitioner was added as A4. 8. From the above it is evident that the petitioner was not in possession of the contraband and it is based on the confession statement of the co-accused the petitioner was added as accused. The Hon’ble Supreme Court in Karan Talwar vs. the State of Tamil Nadu in SLP (Crl.) No.10736 of 2022 has held that mere confession of the co-accused by itself cannot be the reason for his implicating in the crime and discharged the accused from the NDPS case. The relevant portion is extracted hereunder: “10. As is evident from the said Section, the alleged offence is consumption of narcotic drug or psychotropic substance other than 4/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 those specified in or under clause (a) of Section 27, NDPS Act, and therefore, the question is whether any material is available to charge the appellant thereunder. The contention of the appellant is that he has been arraigned as accused No.13 based on the confession statement of co- accused viz., accused No.1. Certainly, in the absence of any other material on record to connect the appellant with the crime, the confession statement of the co-accused by itself cannot be the reason for his implication in the crime. This view has been fortified by the law laid down in Suresh Budharmal Kalani Vs. State of Maharashtra, wherein it was stated that a co-accused’s confession containing incriminating matter against a person would not by itself suffice to frame charge against him. The materials on record would reveal that the investigating agency had (1998) 7 SCC 337; 1998 INSC 364 not subjected him to medical examination and instead, going by complaint Witness No.23, he smelt the accused. The less said the better and we do not think it necessary to comment upon adoption of such a course. We need only to say that even if he tendered such evidence, it would not help the prosecution in anyway. There is absolutely no case that any recovery of contraband was recovered from the appellant. As regards the confession statement of the appellant in view of Section 25 of the Indian Evidence Act, 1872 there can be no doubt with respect to the fact that it is inadmissible in evidence. In this context it is worthy to refer to the decision of this Court in Ram Singh v. Central Bureau of Narcotics4. In the said decision, this Court held that Section 25 of the Indian Evidence Act would make confessional statement of accused before police inadmissible in evidence and it could not be brought on record by prosecution to obtain conviction. Shortly stated, except the confessional 5/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 statement of co-accused No.1 there is absolutely no material available on record against the appellant.” 9. In Surinder Kumar Khanna Vs. Intelligence Officer, the Directorate of Revenue Intelligence reported in 2018 8 SCC 271 it has been held as under: “12. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar11 wherein it was observed: “As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to “lend assurance to other evidence against a co-accused”. In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this: “where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described 6/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 in Section 30 may be thrown into the scale as an additional reason for believing that evidence”. In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that “a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence”. It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start 7/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval.” 13. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused.” In the present case as stated supra the petitioner was not in possession of the contraband and it is based on the confession by the co-accused the petitioner was implicated. 10. The prosecution submitted that the petitioner was evading arrest for the past several years, NBW was issued and the petitioner was recently arrested on 10.06.2025. However, the petitioner submitted that he was attending other criminal cases especially C.C.No.6 of 2013 and hence the allegation that the petitioner was absconding is incorrect. The said C.C. is for the offence under 8/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 NDPS. On perusal of the C.C.No.6 of 2013 it is seen that the petitioner was A1 and the trial was started on 04.11.2015 and completed on 30.10.2023 and the petitioner was acquitted. When the petitioner was very much available for the said trial, then it cannot be stated that the petitioner evaded bail. Therefore, this Court is of the considered opinion that if bail is granted, it will not hamper trial. 11. Further it is seen in the present case A1 and A2 was granted bail by Trial Court. Pending trial the A2 died. The High Court had granted bail to A3. A5 is absconding. Now the spilt up charge sheet is filed in C.C.No.232 / 2025. Now the trial in C.C.No.240/2017 is for A1, A3 and A4, wherein A1 and A3 were already granted bail. Hence denying bail for the petitioner / A4 alone is affecting the rights of the petitioner. Further the case is posted for hearing on 22.09.2025. The trial would take some years. In such circumstances, the Article 21 protection ought to be granted to the petitioner as held by the Hon’ble Supreme Court in Manish Sisodia Vs. Enforcement Directorate reported in 2024 SCC OnLine SC 1920. This Court in Crl.O.P.No.3508 of 2025 in the case of Jaffer Sadiq vs. Assistant Director Enforcement Directorate has followed the Manish Sisodia and held the speedy trial and Article 21 ought to be protected even in NDPS case. 9/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 12. This Court is conscious of the legal proposition that in a case wherein the accused is charged for possession of commercial quantity of narcotic drugs, a bar under Section 37(1)(b) has to be overcome. Section 37(1)(b) is extracted here under: "Section 37(1)(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- (i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail." 13.The Honorable Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu has held that the confession of accused or co-accused cannot be used as a substantive piece of evidence. In the present case, as narrated in the charge sheet, the only material evidence connecting the accused with the crime is the confession of the co-accused. Prima facie, this Court is satisfied that there is a reasonable ground to believe that the petitioner is not guilty. In view of the materials available in the charge sheet, only the confession of the 10/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 accused and the co-accused is available against the petitioner. Further, the learned Additional Public Prosecutor submitted that the petitioner has a second embargo. This Court is satisfied that the petitioner had been regularly appearing in other cases and he had obtained acquittal. The non bailable warrant was pending for a quite long time and the respondent agency took no effort to secure him while the warrant was in force. 14.Considering the facts and circumstances and the reasons stated above, this Court is of the considered opinion that even it is commercial quantity, the bar under Section 37 is not applicable to the present case. Hence, this Court is inclined to grant bail to the petitioner on certain conditions. 15. Accordingly, the petitioner is ordered to be released on bail, on executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties each for a like sum to the satisfaction of the Principal Special Judge for Trial of Narcotic Drugs and Psychotropic Substance Act Cases, Madurai, and on further conditions that, 11/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 a)the sureties shall affix their photographs and left thumb impression in the surety bond and the Magistrate/concerned court may obtain a copy of their Aadhar card or Bank Pass Book to ensure their identity; b)the petitioner shall report before the Rameswaram Town Police Station daily at 10.30 a.m., for two weeks and thereafter, before the Trial Court for every hearing until further orders; c)the petitioner shall not tamper with evidence or witness; d)the petitioner shall not abscond during trial; e)On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560]. 12/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 f) If the accused thereafter absconds, a fresh FIR can be registered under Section 269 of BNS. 16. Accordingly, this Criminal Original Petition is allowed. 23.09.2025 TMG TO 1.The Principal Special Judge for Trial of Narcotic Drugs and Psychotropic Substance Act Cases, Madurai. 2. The Central Prison, Madurai. 3.The Inspector of Police, Madurai NIB -CID Police Station, Madurai District. 4.The Additional Public Prosecutor, Madurai Bench Of Madras High Court, Madurai. 13/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.12002 of 2025 S.SRIMATHY,J TMG ORDER IN CRL OP(MD) No.12002 of 2025 Date : 23.09.2025 14/14 https://www.mhc.tn.gov.in/judis