20 years for 951 kg of ganja undone: Madras HC says co-accused confessions alone cannot convict
Justice S. Karthikeyan of the Madurai Bench set aside the NDPS convictions of two men who ran from a police raid on a lorry, finding no identification and no evidence beyond the statements of the two co-accused who were caught, and ordered their release at once.
Police found 951 kg of ganja in 24 sacks on a lorry in Madurai. Two of the four men in its cab jumped out and ran, and the two who stayed were convicted. In September 2024 the two who ran got 20-year sentences as well, and on 11 November 2026 the Madras High Court set them aside.
Justice S. Karthikeyan, sitting at the Madurai Bench, held that nothing connected the absconders to the contraband except the confessions of the co-accused. A co-accused confession, he said, cannot by itself be the basis of a conviction. Both appellants, held in the Central Prison at Madurai, were ordered to be set at liberty at once.
A raid, a lorry, two men gone
On 15 February 2023, at about 11.30 am, Boominathan (P.W. 6), the investigating officer, received secret information and recorded it as Ex. P-8. He told the Assistant Commissioner of Police, who endorsed permission for a raid.
The team stopped an Eicher lorry, TN-38-CU-1362, near Angala Eswari Nagar at about 12.15 pm. Four men sat in the cabin. Two jumped out and escaped, and the other two, Prabhakaran (A-1) and Senthil Prabhu (A-2), were held.
The police recorded that the two men they held named the absconders as Rajkumar (A-3) and Jayakumar (A-4). The raiding party told A-1 and A-2 they could be searched before a Gazetted Officer or Magistrate, and both signed letters consenting to a search by the police.
What was seized, and who was charged
The lorry carried 24 gunny bags holding 475 packets of ganja, weighing 951 kg in all. Two samples of 100 grams each were drawn and sealed, and a chemical examiner later reported that the samples were ganja.
A-3 was arrested in another NDPS case by the Keeraithurai Police on 9 May 2023, and A-4 on 12 June 2023. Mr Boominathan formally arrested them on 31 May and 19 June, took each into police custody for a day, and recorded statements as Ex. P-19 and Ex. P-20.
All four were tried by the I Additional Special Court for EC and NDPS Act Cases, Madurai, in C.C. No. 782 of 2023. The prosecution examined six witnesses, and the defence called none.
Twenty years and Rs 1 lakh each
On 5 September 2024 the trial court convicted all four under Section 8(c) read with Section 20(b)(ii)(C) of the NDPS Act. It sentenced each to 20 years’ rigorous imprisonment, a fine of Rs 1,00,000 and, in default, three more years’ simple imprisonment.
It acquitted all four of the charges under Sections 25 and 29(1). A-1 and A-2 did not appeal, and the State did not appeal against the acquittals. A-3 filed Crl.A(MD) No. 921 of 2024 and A-4 filed Crl.A(MD) No. 914 of 2025, both under Section 415 of the BNSS, and the court heard them together.
Arguments on each side
Mr V. Kathirvelu, Senior Advocate, appeared for A-3, and Mr M. Jagadeesh Pandian for A-4. Mr A. Robinson, Government Advocate (Criminal Side), appeared for the State.
The appellants said that since they had fled, the entire recovery was shown against A-1 and A-2, and only co-accused confessions implicated them. They pointed to the acquittal under Sections 25 and 29, a delay in registering the FIR and the absence of independent witnesses. They relied on Surinder Kumar Khanna v. Intelligence Officer and Mohammed Fasrin v. State.
The State said Ex. P-8 already carried the names of A-3 and A-4, and that P.W. 1, P.W. 2 and P.W. 3 spoke of four men in the lorry. It said the raid complied with Sections 42 and 50 of the NDPS Act.
It argued that a co-accused confession is relevant under Section 30 of the Evidence Act and was corroborated by other witnesses. It relied on Haricharan Kurmi v. State of Bihar.
The only material against them
The court framed one point for decision:
“Whether the conviction recorded by the trial Court as against the appellants/A-3 and A-4 is sustainable?” (para 16)
Justice Karthikeyan listed what the prosecution had against the appellants. It was the secret information, the confessions of A-1 and A-2 (Ex. P-5 and P-6), and the statements of A-3 and A-4 to the investigating officer (Ex. P-19 and P-20). The prosecution, he noted, relied only on these.
The court set out the decisions on a statement under Section 67 of the NDPS Act, including the 2021 Larger Bench answer in Tofan Singh v. State of Tamil Nadu.
It reproduced the Larger Bench answer that officers with powers under Section 53 are police officers, so a confession to them is barred by Section 25 of the Evidence Act.
From the authorities, the court drew a narrower rule for this case. Reading them with Haricharan Kurmi, it held that a confession is a weak piece of evidence that
“cannot be the sole basis for conviction without any corroborating material” (para 29)
It added that a co-accused’s confession is not evidence within the meaning of Section 3 of the Evidence Act. It is only something to be weighed along with other substantive evidence.
Police statements and a failed disclosure
The court rejected Ex. P-19 and Ex. P-20 as inadmissible. The involvement of the appellants had come to light before the co-accused confessed, it said, so the statements could not count as a disclosure leading to a discovery. They were also statements to a police officer after the investigation began and so were barred by Section 162 of the CrPC.
No identification of any kind
The State had argued that the raiding party saw the appellants flee. The court found that only P.W. 1 and P.W. 2 said so, and neither identified the appellants in the dock. P.W. 3, the independent witness, gave evidence that was hearsay.
The appellants were strangers to the raiding party, and no identification parade was held after they were arrested. The court recorded its conclusion on the evidence in these words:
“except the confession statement of the co-Accused, nothing is available on record to show” (para 31)
The court therefore held that the confession of a co-accused was not a substantive piece of evidence and could not alone support the conviction. It did not rule on the delay in the FIR or the other grounds the appellants had raised.
Order
Both appeals are allowed. The conviction and sentence passed on 5 September 2024 in C.C. No. 782 of 2023 by the I Additional Special Court for EC and NDPS Act Cases, Madurai, are set aside as against the appellants in both appeals.
The appellants, who were in custody, are to be set at liberty at once. Any fine paid is to be refunded, and the connected Crl.M.P.(MD) Nos. 20307 and 20346 of 2026 are closed.