ORDER

This Criminal Original petition has been filed to quash the proceedings in C.C. No.56 of 2016 on the file of the Special Court under E.C. & N.D.P.S. Act, Chennai.

2. Heard Mr. Pranav Charan (for M/s. India Law LLP), learned counsel appearing for the petitioner and Mr. P. Vishnu, learned Special Public Prosecutor (Customs) appearing for the respondent.

3. The case of the prosecution is that, based on information, on

01.07.2011, a team of officers from Air Cargo Intelligence Unit examined a courier parcel in Fedex Dedicated Courier Terminal. The said courier, consigned from Hyderabad to Maldives declared as books under Courier Shipping Bill No.2200 dated 01.07.2011. On examination of the parcel, it was found that it was regular cover of Fedex and inside the cover, it was found an another brown cardboard cover with sender's address as “from Naresh”, 1st accused and the recipient's address was also the same. The said box contained two books and on scrutinizing the books, it was found that cavities were made inside the books by removing the inner portion of the pages, leaving the pages, wherein four packets wrapped in carbon paper. It was found to be heroin and the same has been attempted to be smuggled out of India by concealing the same inside the books in contravention of the Customs Act, 1962 and N.D.P.S. Act, 1985. After investigation and after accorded sanction, the respondent has filed complaint for the offences U/s.8(c) of NDPS ACT and sections 21, 23, 28 and 29 of NDPS Act, 1985 r/w Sections 132 and 135 of the Customs Act, 1962 .

4. The learned counsel appearing for the petitioner would submit that the petitioner is arrayed as A2, who was employed as Operation Manager to M/s.Federal Express Service (India) Pvt. Ltd., He, on receipt of summons, on behalf of M/s. Federal Express Service (India) Pvt. Ltd., as Operation Manager, he represented on behalf of the Company and appeared before the authority, for enquiry. Therefore no summons were served in his individual capacity. The petitioner neither indulged in any offence of smuggling of contraband subsidies nor he aided the commission of the offence. There is no provision U/s.8(c) of NDPS Act. In fact, the sanction was accorded from the Principal Commissioner of Customs, Chennai-I Commissionerate only to prosecute the accused persons under Clause 3 of the NDPS (Regulation of Controlled Substances) Order 1993 r/w Section 8(c) of the N.D.P.S. ACT 1985 (as amended) and punishable under Sections 21, 23, 28 and 29 of the N.D.P.S. Act, 1985 read with Section 135 of the Customs Act, 1962. Whereas the respondent lodged the complaint for the offence punishable under Section 8(c) of the N.D.P.S. Act read with Section 132 and 135 of the Customs Act. No sanction was accorded to prosecute the accused under Section 132 of the Customs Act. The said offence is no way connected to the petitioner. Though there were 4 boxes of contraband, the respondent had taken the sample from one box only and it is evident from the Mahazar. The samples were sent for analysis. The respondent stated that on a reasonable belief that the brown substance might be some narcotic, a test was conducted using Field Test Kit, and it tested positive for Heroin. The contraband was seized on 01.07.2011, whereas it was sent for analysis only on 07.07.2011. As per the provision, it has to be sent within a period of 72 hours. The Analysist namely The Assistant Chemical Engineer has reported that “the sample is in the form of brown coloured powder and it answers the tests for the presence of Diacetyl Morphine (Heroin) and is covered under NDPS Act, 1985. Weight of remnant sample along with plastic cover returned is 4.7 grams. However, the quantitative analysis of the sample could not be carried out as the instrument is not in working condition. Therefore, admittedly, the quantitative analysis of the sample was not done even as per the report dated 09.08.2011.

4.1. In support of his contention, the learned counsel for the pe