IMPORTANT POINT
Section 23, NDPS Act is attracted only in case of import into or export out of India of contraband.

JUDGMENT :

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 “tranship