The prosecution initiated against the petitioner was held to be illegal and liable to be vitiated due to the absence of allegations of import, export, or transshipment of contraband in the FIR.

JUDGMENT

For the State.

Petitioner, in this revision has challenged the very initiation and continuance of the proceedings against him vide NDPS Case No. 17 of 2021, now pending in the court of Sessions Judge Special Court under the Narcotic Drugs and Psychotropic Substance Act, 1985 at Jalpaiguri (henceforth Spl. Court). The said case has been initiated against the petitioner under section 23(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (henceforth the NDPS Act), pursuant to the FIR lodged on April 29, 2021.

At the very outset the relevant provision of law may be extracted, which is as follows :

23. Punishment for illegal import into India, export from India or transhipment of narcotic drugs and psychotropic substances.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or permit granted or certificate or authorisation issued thereunder, imports into India or exports from India or tranships any narcotic drug or psychotropic substance shall be punishable,—

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c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

The petitioner who is owner of a travel agency, was arrested on April 29, 2021, on the allegation for committing an offence under the afore mentioned provision of law. His principal ground of challenge is that the prosecution initiated against him suffers from inherent and palpable illegality which cannot be maintained and proceeded with. On his behalf the FIR has firstly been relied on to show that there is no accusation made of import, export or transshipment of any narcotic drugs or psychotropic substances by him. Such being the facts, initiation of a prosecution against him under section 23(c) of the NDPS Act, would only be inappropriate and illegal, more so when there is no recovery of any contraband article from the petitioner’s possession. It is urged that the same may be set aside.

The other major and relevant point of challenge by the petitioner is the glaring discrepancy as regards the nature and category of the contraband in this case. It is pointed out that though the contraband has been mentioned to be “heroin” in the FIR, the chargesheet has mentioned the same to be “morphin, codeine and thebaine (covered under the NDPS Act) and papaverine (covered under the NDPS Act)”, on the basis of the chemical examination report of the contraband alleged to have been seized in this case. It is emphasised that the very foundation of the case is shaken and the entire prosecution should go for the said reasons.

Judgments of the Hon’ble Supreme Court have been relied on, which are as follows :

(I) Union of India. Vs Sheo Shambhu Giri reported in (2014) 12 SCC 692;

(II)

(III) Umar Abdul Sakoor Sorathia vs Intelligence Officer, Narcotic Control Bureau. reported in (2000) 1 SCC 138;

(IV) (1994) SCC Online Pat 258

(V) Ashok Chaturvedi and Others vs Shimul H. Chanchani and Another reported in (1998) 7 SCC 698; And

(VI) An unreported judgment dated November 4, 1997, in M/S Pepsi Foods Limited and Another vs Special Judicial Magistrate and Others.

The State has defended its action of initiation of 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 in so far 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. Ld. Counsel for the State, particularly on the basis of the available materials has submitted that when in this ca