Madras High Court
T.V.Venkatachalam vs Senior Intelligence Officer on 23 September, 2014
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.09.2014 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.R.C.No.283 of 2009 T.V.Venkatachalam Petitioner vs Senior Intelligence Officer Directorate of Revenue Intelligence Chennai Zonal Unit 25,Gopalakrishna Iyer Road T.Nagar, Chennai-600 017 Respondent Criminal Revision filed under Section 397 r/w 401 Cr.P.C. praying to set aside the order in Cr.M.P.No.1588/2008 in C.C.No.55/2006 dated 04.03.2009 passed by the Special Judge Additional Speical Court under NDPS Act, Chennai. For Petitioner : Mr.B.Kumar, Senior Counsel for Mr.S.Ramachandran For Respondent : Mr.N.P.Kumar, Special Public Prosecutor ***** O R D E R
This revision challenges the order of learned Special Judge, Additional Special Court under NDPS Act, Chennai, passed in Cr.M.P.No.1588 of 2008 in C.C.No.55 of 2006 on 04.03.2009.
2. The prosecution case is that the petitioner, who is the proprietor of M/s.Sarnaya Food Exporters, attempted to export 57.300 kgs. of twigs/stems concealed in carton boxes to Canada by falsely representing that they were vegetables. Suspecting that the goods which were sought to be exported were not vegetables, the respondent seized the goods and sent the same for chemical analysis. The chemical analyst identified the goods as 'Khat' containing Cathine, also known as (+)Pseudunorephedrine. A case was registered in F.No.VIII/48/1/ 2006/DRI on the file of the respondent for offences under sections 8(c) r/w 22, 23, 25, 28 and 29 of NDPS Act and 135(1)(c) r/w Sections 11 and 113 of the Customs Act against the petitioner herein. The same was taken on file in C.C.No.55 of 2006 on the file of learned Special Judge, Additional Special Court under NDPS Act, Chennai. In such case, petitioner has filed Cr.M.P.No.1588 of 2008 seeking discharge and the same was dismissed. Hence, this revision.
3. Heard learned senior counsel for petitioner and learned Special Public Prosecutor for respondent.
4. The simple contention of learned senior counsel for petitioner is that the plant 'khat' is neither a narcotic drug or a psychotropic substance. When so, no prosecution under the NDPS Act would lie. It is his further contention that the offences under the Customs Act which alleged against the petitioner also are not attracted.
5. Learned Special Public Prosecutor submits that 'Khat' is a controlled substance in some countries such as Canada, Germany, U.K and U.S., while its production and sales are legal in some countries. Quoting from Wikipedia learned counsel submits that 'khat' contains monoamine alkaloid called cathinone, an amphetamine-like stimulant, which is said to cause excitement, loss of appetite and euphoria. In 1980, the World Health Organization (WHO) classified it as a drug of abuse that can produce mild-to-moderate psychological dependence (less than tobacco or alcohol) although WHO does not consider 'khat' to be seriously addictive. He also referred to the deleterious effect of health that 'khat' could have. He referred to the analysis report of Forensic Sciences Department (Govt. of Tamil Nadu) Narcotics Division Analysis Report to the Assistant Director, Directorate of Revenue Intelligence, Chennai Zonal Unit, which inter alia informs thus:
"In the context of the reference cited 2nd above, and in continuation of this laboratory report cited 1st above, the following clarifications are issued.
1.There are more than one system of nomenclature for naming organic compunds. What this laboratory has followed has followed in naming Cathine is IUPAC system of nomenclature [International Unios of Pure and Applied Chemists]
2.It is clarified that the names +2-amino-1-phenyl-propan-1-ol, (+) pseudonorephedrine and (+)-(R)-2-[(R)-aminoethyl] benzyl alcohol refer one and the same compount gathine'
3. Also enclosed xerox copy of Matindale-the Complete Drug Reference where in names are given for the compound Cathine."
6. It is the submission of learned Special Public Prosecutor that cathine is listed as a psychotropic substance under item No.171 in the table prepared pursuant to Sub clause vii(a) and xxiii(a) of Section 2 of the NDPS Act. Cathine could be derived from the khat plant and hence offence under the NDPS Act would stand attracted.
7. Section 2(xiv) of the NDPS Act, 1985, defines narcotic drug thus:
Narcotic drug means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs. Therefore, 'khat' by itself is not a narcotic drug. Section 2(xxiii) of the NDPS Act, 1985, defines psychotropic substance thus:
Psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule
8. 'Khat' admittedly is a plant not falling within the description of narcotic drug. Neither by itself is it a psychotropic substance. The prosecution cannot seek to extend the Act by informing that a psychotropic substance may be obtained through a plant not answering to the definition of Narcotic Drug under Section 2(xiv) of the NDPS Act.
9. The charge u/s.135(1)(c) r/w 11 and 113 of the Customs Act, is made only as an incidental one. There is nothing in the Customs Act to indicate that there is any prohibition on export of 'khat'. It is not the prosecution case that 'khat' sought to be exported otherwise escaped any levy. In circumstances where the prime charge of commission of offence under NDPS Act does not stand and no specific offence under the Customs Act is shown to have been committed, this Court would allow the present revision.
This Criminal Revision shall stand allowed. The order of Special Judge, Additional Special Court under NDPS Act, Chennai, passed in Cr.M.P.No.1588 of 2008 in C.C.No.55 of 2006, on 04.03.2009 is set aside. The petitioner is discharged of the charges levelled against him.
23.09.2014 Note to office:
Issue order copy by 14.11.2014 Index:yes/no Internet:yes/no kpr/gm To
1.The Special Judge, Additional Special Court under NDPS Act, Chennai.
2.The Senior Intelligence Officer, Directorate of Revenue Intelligence, Chennai Zonal Unit 25, Gopalakrishna Iyer Road, T.Nagar, Chennai-600 017.
3.The Special Public Prosecutor, High Court, Chennai.
C.T.SELVAM, J.
kpr/gm Crl.R.C.No.283 of 2009 23.09.2014