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
-----------------------
7
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)” =
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. =
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. =
“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
-----------------------
7
