UNION OF INDIA Vs SHEO SHAMBHU GIRI
Bench: B.S. CHAUHAN,J. CHELAMESWAR
Case number: Crl.A. No.-001027-001027 / 2008
Diary number: 7511 / 2008
Advocates: B. V. BALARAM DAS Vs
ARDHENDUMAULI KUMAR PRASAD
Page 1
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
1
Page 2
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.
2
Page 3
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
3
Page 4
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
4
Page 5
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
5
Page 6
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-
6
Page 7
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