NDPS Act – Sec.23 and 29 – trial court acquitted under sec. 29 but convicted under sec. 23 of NDPS Act – failure to prove transport from foreign land – High court set aside the conviction as the prosecution failed to prove that the alleged Ganja was imported from foreign country – interpretation of the words ” import and export inter state and import and export out of India or Transhipment of any narcotic drug or psychotropic substance ” – Apex court held that the High court rightly acquitted the accused and dismiss the appeal = Union of India …Appellant Versus Sheo Shambhu Giri …Respondent = 2014 (March.Part) judis.nic.in/supremecourt/filename=41332

    NDPS Act – Sec.23 and 29 – trial court acquitted under sec. 29 but convicted under sec. 23 of NDPS Act – failure to prove transport from foreign land –  High court set aside the conviction as the prosecution failed to prove that the alleged Ganja was imported from foreign country – interpretation of the words ” import and export inter state and import and export out of India or Transhipment  of  any narcotic  drug  or  psychotropic  substance ” – Apex court held that the High court rightly acquitted the accused and dismiss the appeal = 

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)” =

 

 

 “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.

 

2014 (March.Part) judis.nic.in/supremecourt/filename=41332

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 thereunder 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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