Head
Note: As
per the wording of the section there must be import of the contraband to
attract punishment under this section but the prosecution could not prove that
the Ganja was of foreign origin. Even prosecution could not prove whether the
substance so seized was actually Ganja or not because no chemical examination
report has been produced in the court in original form neither the chemical
examiner was examined to prove them. It has also been submitted that the
mandatory provision of, sections 42, 52 and 57 of the act has not been strictly
complied with. That apart it has also been submitted that there is no independent
witness to support the recovery of contraband and the prosecution failed to
examine them.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1027 OF 2008
Union of India …Appellant
Versus
Sheo Shambhu Giri …Respondent
J U D G M E N T :
Chelameswar, J.
1. Aggrieved by
the judgment in Criminal Appeal No. 359 of 2003 of the High Court of Patna, the
instant appeal is preferred by the Union of India.
2. By the judgment
under appeal, three appeals came to be preferred by the three different accused
who were convicted for different offences under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short “the NDPS Act”) by the Court of
5th Additional District and Sessions Judge, Mothari of East Champaran District
in Excise Case No. 31 of 2001 by its judgment dated 12th June, 2003.
By the judgment under appeal, the conviction of all the appellants was set
aside. It is not very clear whether any appeals are preferred against the
acquittal of the other two accused except the respondent herein.
3. The sole
respondent along with two other accused was tried for offences under Sections
23 and 29 of the NDPS Act. The trial court found the respondent herein guilty
of an offence under Section 23 of the NDPS Act but found that the charge under
Section 29 of the Act is not proved against him. He was, therefore, convicted
for an offence under Section 23 of the NDPS Act and sentenced to undergo RI for
10 years and also to pay a fine of Rs. 1 lakh for an offence under Section 23
of the NDPS Act.
4.
The High Court, allowed the appeal of the
respondent and set aside his conviction under Section 23 of the NDPS Act.
Relevant portion of the judgment reads as follows:-
“17. So far as appellant Sheo
Shambhu Giri of Cr. Appeal No. 359 of 2003 is concerned he has also assailed
his conviction on many grounds including that the Ganja was recovered from his
possession. His submission was also that though he was charged under sections
23 and 29 of the act but he was acquitted under Section 29 of the act and was
not considered to be a part of conspiracy and admittedly he was only a carrier
at the instance of other persons. As such his punishment under section 23 of
the Act is also not tenable in the eye of law. That apart it has been submitted
that the ingredients of section 23 of the Act is not attracted in this case
because there is no evidence to prove that the Ganja was imported from foreign
land. As per the wording of the section there must be import of the contraband
to attract punishment under this section but the prosecution could not prove
that the Ganja was of foreign origin. Even prosecution could not prove whether
the substance so seized was actually Ganja or not because no chemical
examination report has been produced in the court in original form neither the chemical
examiner was examined to prove them. It has also been submitted that the
mandatory provision of, sections 42, 52 and 57 of the act has not been strictly
complied with. That apart it has also been submitted that there is no independent
witness to support the recovery of contraband and the prosecution failed to
examine them. Only independent witness is a witness to Panchnama (Ext. 18)”
5. Dr. Ashok
Dhamija, learned counsel appearing for the appellant submitted that the High
Court grossly erred in coming to the conclusion that in the absence of proof
that the Ganja allegedly seized from the custody of the respondent is of
foreign origin, Section 23 of the NDPS Act is not attracted.
6. The learned
counsel further assailed the conclusion of the High Court that the prosecution
could not prove that the material seized from the respondent was ganja.
7. On the other
hand, the learned counsel for the respondent submitted that Section 23 of the
NDPS Act creates three offences and they are; (i) import into India, (ii) Export
out of India; and (iii) Transhipment of any narcotic drug or psychotropic
substance. If any one of the three activities is undertaken in contravention of
any one of the provisions of the Act or the Rules made there under or in contravention
of an order made or condition of licence or permit granted or certificate or
authorization issued either under the Act or the Rules. The explanation
“tranships” occurring under Section 23 must necessarily be understood in the
context of the scheme of the Section and the preceding expressions of “import
into India” and “export out of India” to mean only transhipment for the purpose
of either import into India or export out of India. The learned counsel further
submitted that the High Court rightly concluded in the absence of any proof
that the respondent was carrying contraband either in the course of import into
India or export out of India, section 23 is not attracted.
8. We agree with
the submission made by the respondent on the construction of Section 23 of the
NDPS Act, the expression “tranships” occurring therein must necessarily be understood
as suggested by the learned counsel for the respondent. There is yet another
reason apart from the construction of the language of Section 23 which compels
us to accept the submission made by the learned counsel for the respondent.
Section 9(1)(a)(vii) also employs the expression transhipment. Section 9(1)
reads as follows;
“9. Power of Central Government
to permit, control and regulate. -(1) Subject to the provisions of section 8, the Central
Government may, by rules-
(a) permit and regulate-
(i) the cultivation, or gathering of
any portion (such cultivation or gathering being only on account of the Central
Government) of coca plant, or the production, possession, sale, purchase,
transport, import inter-State, export inter-State, use or consumption of coca
leaves;
(ii) the cultivation (such
cultivation being only on account of Central Government) of the opium poppy;
(iii) the production and manufacture
of opium and production of poppy straw;
(iv) the sale of opium and opium
derivatives from the Central Government factories for export from India or sale
to State Government or to manufacturing chemists;
(v) the manufacture of manufactured
drugs (other, than prepared opium) but not including manufacture of medicinal
opium or any preparation containing any manufactured drug from materials which
the maker is lawfully entitled to possess;
(vi) the manufacture, possession, transport import inter- State, export
inter-State, sale, purchase, consumption or use of psychotropic substances;
(vii) the import into India and
export from India and transhipment
of narcotic
drugs and psychotropic substances;
(b) prescribe any other matter
requisite to render effective the control of the Central Government over any of
the matters specified in clause (a)”
9. It
can be seen from the language of the Section that the Central Government is
authorized to make rules which may permit and regulate various activities such
as cultivation, gathering, production, possession, sale, transport, inter state
import or export of various substances like coca leaves, poppy straw, opium
poppy and opium derivatives etc., while the Parliament used the expression
transport in the context of inter-state import or export of such material in
sub- Section 1(a)(vi), in the context of importing to India and export out of
India, Parliament employed the expression transhipment in Section 9(i)(a)(vii).
10. Therefore, the
High Court rightly concluded that the conviction of the respondent under
Section 23 of the NDPS Act cannot be sustained. We see no reason to interfere
with the same.
11. In view of such
conclusion, we do not deem it necessary to examine the correctness of other
conclusions recorded by the High Court for acquitting the respondents. The
appeal is, therefore, dismissed.
………………………………J.
( Dr. B.S.
Chauhan )
………………………………J.
( J.
Chelameswar )
New Delhi;
March 25, 2014
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