S.94 BNSS Permits Furnishing Existing Records, Not Collating Info: Kerala HC Directs Customs To Provide Duty Register In Drug Smuggling Probe

The Kerala High Court recently passed an order whereby it directed the Deputy Commissioner of Customs to furnish the duty register of customs officers on duty at the Thiruvananthapuram International Airport to the Deputy Superintendent of Police (DySP) to facilitate investigation into a crime relating to smuggling of methamphetamine from Muscat to India.Justice C.S. Dias observed that in heinous offences under the NDPS Act, cooperation of State and its instrumentalities was necessary:“this Court considers it apposite to observe that, in matters involving heinous offences under the NDPS Act, which are offences that strike at the core of national interest and imperil the welfare of society at large, the State and all its instrumentalities bear a solemn obligation to extend their fullest cooperation to the investigating agencies. Investigations into such grave crimes demand institutional coordination and prompt assistance, unimpeded by avoidable technicalities, bureaucratic indifference, or misplaced institutional sensitivities.”The Court was considering a plea by the Deputy Commissioner of Customs seeking to set aside an order passed by the Sessions Court under Section 94(1) BNSS asking him to furnish the details of customs officers on duty on a particular day at the Thiruvananthapuram International Airport, including their designation, official addresses and mobile numbers.The Commissioner/petitioner argued that as per Section 94, a witness can be directed to furnish a document that is in his possession or control and he cannot be obliged to collect, collate and provide information. He also pointed out that though an application was filed before the Sessions Court to review the impugned order, the same was dismissed holding that a criminal court cannot review its own order. Aggrieved, he had come before the High Court.The prosecution opposed the plea and informed the Court that a crime was registered against certain accused persons for the offences punishable under Section 22(C), 23(C), 27 (A) and 8 read with Section 27(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). As per the prosecution allegation, 6 accused conspired to procure, smuggle and commercially sell methamphetamine and the same was transported from Muscat to Thiruvananthapuram via an Air India flight. The prosecutor submitted that for the purpose of investigating the afore crime, though the DySP has issued letters to the petitioner, but there was no response. This was the reason compelling the DySP to approach the Sessions Court.The prosecutor also pointed out that the CCTV footage retrieved from the Airport proves that the baggage containing the contraband was picked up from the conveyor belt and therefore, further investigation is being conducted to ascertain how the contraband went undetected in the conveyor belt.It was further submitted a request is being made under the Mutual Legal Assistance Treaty (MLAT) for collecting evidence from Muscat and Oman for establishing the narcotic trafficking nexus and drug trade relationships of the accused. Therefore, it was contended that the impugned orders may not be interfered with.The Court looked into the scope of Section 94 BNSS (Summons to produce document or other thing) and Section 67 NDPS Act (Power to call for information) by referring to the provisions and certain decisions of the High Court and the Apex Court. It was opined:“On a careful analysis of the scope and scheme of Section 94 BNSS, read with Section 67 of the NDPS Act, and its interpretations in the above decisions, it is trite that only a document or a thing, which is in the possession of a person from whom it is sought to be summoned, can be directed to be produced. The person cannot be expected to create a document or thing to be furnished to the Investigating Agency.”It also remarked that the petitioner ought to have at least shown the courtesy of responding to the letters issued to it by the DySP/2nd respondent:“In the case at hand, the petitioner ought to have, at the very least, exhibited the basic administrative courtesy of responding to the letters issued by the 2nd respondent— either by furnishing the details sought, by seeking clarification, or by expressing any genuine difficulty in supplying the information. Instead, the petitioner chose a course of silence, thereby driving the 2nd respondent to invoke the jurisdiction of the above Court. It must be borne in mind that the 2nd respondent is investigating a serious case of international drug trafficking, a menace that has assumed alarming proportions and continues to inflict grave harm on the society. It was incumbent upon the petitioner to extend full cooperation to the investigation rather than maintaining an attitude of detachment or evasion. Any reluctance in this regard may legitimately give rise to an inference that there is an attempt, whether deliberate or otherwise, to shield certain individuals from the reach of the...

S.94 BNSS Permits Furnishing Existing Records, Not Collating Info: Kerala HC Directs Customs To Provide Duty Register In Drug Smuggling Probe

K. Salma Jennath

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