Section 23 NDPS Act Not Attracted Where Alleged 'Transshipment' Does Not Relate To Import Or Export Of Drugs: Calcutta High Court

The Circuit Bench of Calcutta High Court at Jalpaiguri on Tuesday quashed the proceedings under Section 23 of NDPS Act against an accused on the ground that the FIR did not disclose any accusation of any import, export or transshipment of any contraband.

While quashing the proceedings pending before the trial court, Justice Rai Chattopadhyay held:

“The FIR indeed does not disclose allegation of any import or export or transshipment of the contraband. According to the FIR, circumstances of this case is different altogether, to which section 23 of the NDPS Act should have no manner of application.”

It was contended by the petitioner that there was no accusation made of import, export or transshipment of any narcotic drugs or psychotropic substances by him and therefore, initiation of a prosecution against him under section 23(c) of the NDPS Act, was inappropriate and illegal.

The State defended the prosecution on the ground that the same should not be vitiated on the ground of imputation being made under the alleged wrong provision of law as it is the power and prerogative of the Trial Court to assess the applicable provision of law under which the trial would be conducted, at the time of framing of charge under section 228 of the Code of Criminal Procedure 1973.

It was further submitted by the State that the word “or” used in section 23 of the NDPS act is a disjunctive word and therefore implying illegal import, export or transhipment of the contraband article, individually and in exclusion of each other to be punishable under the said provision of the statute.

While relying upon the judgement of Supreme Court in Union of India v. Sheo Shambhu Giri (2014) 12 SCC 692, the court held:

“The arguments advanced on behalf of the State on this point is refuted only to find the expression “transships” occurring under Section 23 must necessarily be understood in the context of the scheme of the section and the preceding expressions “imports into India” and “exports from India” to mean only transshipment for the purpose of either import into India or export out of India. In case the circumstances of a particular case does not fall within the four corners of the interpretation of section 23 of the NDPS Act as above, section 23 would not be attracted therein.”

The court observed that FIR indeed does not disclose allegation of any import or export or transshipment of the contraband. It further stated that according to the FIR, circumstances of this case is different altogether, to which section 23 of the NDPS Act should have no manner of application.

“Considering the ingredients of the said provision of law it is only unconceivable regarding application of the same, in the circumstances of this case as explicit from the FIR. Hence this Court is constrained to hold that the prosecution initiated against the petitioner is not only illegal but perverse and liable to be vitiated,” the court ruled.

On the argument that "misquoted" provision should not vitiate the trial, the court relied upon the ratio of Supreme Court judgement in Ashok Chaturvedi and Ors. v. Shimul H. Chanchani and Anr. (1998) 7 SCC 698 and held that an accused is not debarred from approaching the Court at the earliest, just for the reason that he would have a right to plead at the time of framing of charges about insufficiency of material for such framing of charges.

On the argument made by the State that wide power is vested on the court to determine appropriate provision of law under which charges would be framed in a trial, the bench held that the power does not in any way bestow liberty upon the authorities to initiate prosecution, in whatever manner it finds convenient. 

"This would definitely lead to anarchy and arbitrariness and render the statutes and legislations of a State as nugatory. This must not be the justification of the prosecuting agency to book a person under a particular section of law unless there are materials to satisfy the ingredients of the said provision of law against that particular person. In a case under the NDPS act, the responsibility of the prosecuting agency is much more serious, considering the stringent nature of the statute itself," it added.

The court also observed that casually entangling a person under this specific statute may result into serious infringement of his valuable personal rights of life and liberty, enshrined under the Constitution of the country.

"Besides that such a reckless start of prosecution against any person shall definitely mislead the investigation, jeopardising fair trial in a case,” it added.

While exercising its power under section 482 Cr.P.C., the court quashed the proceedings against the accused under Section 23 of NDPS Act and relying upon the ratio and guidelines framed by the Supreme Court in State Of Haryana And Ors v. Ch. Bhajan Lal 1992 AIR 604, held that proceeding further against the petitioner in the matter would amount to gross abuse of the process of court and the law as well.