2014 (10) TMI 833 - HC - Customs

Customs Superintendent's Appeal Dismissed in NDPS Case

SUPDT. OF CUS., BANGALORE Versus MOHAMMED ZULKAR ALI BIN ABDUL MAZJID

The appeal by a Superintendent of Customs against the acquittal of the respondent for offenses under the Narcotic Drugs and Psychotropic Substances Act ... Acquittal of the respondent for offences punishable under Section 8(c) read with Section 20(b)(ii)(c), 23(c) and 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Non recording of information - Held that:- on the primary ground that there has been non-compliance with the mandatory provision of law, the case sought to be made out by the appellant on the merits of the case, while it is apparent on the face of it that there was non-compliance with Sections 41 and 42 of the NDPS Act, which has also been found by the Trial Court, there is no warrant to address the case on any other aspect when there is failure of a mandatory compliance. Therefore, there is no merit in this appeal and the appeal is dismissed. It is also stated by the learned counsel for the respondent that though the respondent has been acquitted, he is a foreign national and without custody of his Passport and Identity Card which are produced and marked in the appeal as Exhibits P-8 and P-9, the respondent, has been unable to leave India for his country and his repeated attempts to secure the documents have been stone-walled and the respondent has been suffering great hardship, being unable to secure employment in India or to proceed to his country. He is under the mercy of the Singapore Embassy in India, till date. - Decided against the revenue. Issues:Acquittal under NDPS Act for possession and attempted export of hashish without compliance with Sections 41 and 42 - Appeal challenging the acquittal.Analysis:The appellant, a Superintendent of Customs, appealed against the acquittal of the respondent for offenses under the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution's case involved intercepting the accused at Bangalore International Airport, where a substance suspected to be hashish was found in his checked-in baggage. The Court below framed points regarding possession of hashish and attempted illegal export, but acquitted the accused, leading to the present appeal.The appellant argued that the lower court's judgment was erroneous, emphasizing non-compliance with Section 43 of the NDPS Act rather than Sections 41 and 42. The appellant contended that crucial evidence was overlooked, including the receipt of information from the Directorate of Revenue Intelligence, Bangalore, and the application of Section 43. The appellant cited cases to support the argument that only Section 43 was applicable.Furthermore, the appellant highlighted the court's failure to consider possession versus conscious possession of the substance, disregarding relevant legal precedents. The appellant challenged the acquittal, pointing out the acceptance of the prosecution's contention regarding non-compliance with Section 50 of the NDPS Act and the voluntariness of the accused's statement. The appellant argued that the acquittal was illegal based on the evidence presented.The primary ground for the accused's acquittal was the alleged non-compliance with Sections 41 and 42 of the NDPS Act. The court emphasized the mandatory nature of compliance with these sections, citing legal precedents where such non-compliance rendered the proceedings invalid. The court referred to the case law to support the position that failure to adhere to the prescribed procedures vitiated the case, leading to the dismissal of the appeal due to the lack of merit.Additionally, the respondent, a foreign national, faced difficulties due to the retention of his passport and identity card. The court directed the release of these documents to the respondent to alleviate his hardship. The appellant's oral plea for a stay of the judgment was rejected, as the court found no merit in the appeal, leaving the appellant to pursue further legal steps if desired.