Karnataka High Court
Sri. Yash Kapoor vs Inspector Of Customs on 14 December, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2023:KHC:45943
WP No. 18698 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 18698 OF 2023 (GM-RES)
BETWEEN:
SRI YASH KAPOOR
S/O MR DALJIT SINGH KAPOOR
AGED ABOUT 36 YEARS, RESIDENT OF NO.204
SILVER OAKS GARDEN APARTMENT
VITTAL MALLYA ROAD, OPP TO SHELL PETROL BUNK
BENGALURU-560 083.
...PETITIONER
(BY SRI C V NAGESH, SENIOR COUNSEL FOR
SRI AJAY KADKOL J, ADVOCATE)
AND:
INSPECTOR OF CUSTOMS
BANGALORE CITY CUSTOMS
COMMISSIONERATE, BANGALORE-560 001
REPRESENTED BY STATE PUBLIC PROCECUTOR
HIGH COURT BUILDING
BANGALORE-560 001.
...RESPONDENT
Digitally signed by B (BY SMT PREETHA MAHADEVAN, ADVOCATE)
K
MAHENDRAKUMAR
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
Location: HIGH
COURT OF CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE
KARNATAKA
OF CRIMINAL PROCEDURE PRAYING TO ORDER AND JUDGEMENT
REVERSING AND SETTING ASIDE THE ORDER DATED 18/04/2023
PASSED BY THE XXXIII ADDL CITY CIVIL AND SESSIONS JUDGE,
NDPS SPECIAL COURT, BANGALORE CITY IN CASE IN SPL. CC NO.
816/2023 ON HIS FILE TAKING COGNIZANCE OF THE OFFENCES
ALLEGED IN THE COMPLAINT FILED BY THE RESPONDENT AND
ORDERING PROCESS AGAINST THE PETITIONER-ACCUSED FOR
OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 8(C) READ
WITH SECTIONS 22(C), 23(c), 27 AND 28 OF THE NARCOTICS AND
PSYCHOTROPIC SUBSTANCES ACT, WHICH IS PRODUCED AS
ANNEXURE-A AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
-2-
NC: 2023:KHC:45943
WP No. 18698 of 2023
ORDER
The petitioner is sought to be prosecuted for the offences punishable under Section 8(c) read with Section 22(c) 23(c), 27 and 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `NDPS Act').
2. The respondent filed a complaint under Section 36A for offences committed under Section 8(c) and punishable under Section 22(c), 23(c), 27 and 28 of the summary of the complaint reads thus:
3. A parcel declared to contain nine Microseal having total value declared at 72.75 Euros shipped from Netherlands to the petitioner was intercepted by the officers of Customs at Foreign Post Office, Chamarajpet, Bengaluru, suspecting that it may contain some narcotic drug or psychotropic substances. The parcel was opened and examined in the presence of independent witnesses. On inspection, it was found that the parcel contained six strips, each containing brown colored substances. The officer verified the description of the goods from the overseas supplier website and found that they appeared to be packets of Microdosing weighing 75 grams and Magic Truffles Psilocyte Atlantis weighing 50 grams.
4. In order to investigate further, a request was made to the Director General, Narcotic Control Bureau for the officer of Customs to undertake the Control Delivery Operation. The authorized officer handed over the dummy parcel to the Foreign Post Office and the same was dispatched for onward delivery to -3- NC: 2023:KHC:45943 WP No. 18698 of 2023 the consignee. Thereafter, the postman, the Authorized Officer along with the customs officer, and two independent witnesses reached the address mentioned on the parcel and one person appeared and he took delivery of the dummy parcel and when the said person collected the parcel, the Authorized Officer and his colleague by showing the identity cards and on requesting the person to identify himself, he identified himself as petitioner herein.
5. The petitioner opted to be searched in the presence of a gazetted officer by giving consent in writing. Thereafter, a personal search was conducted and articles were seized. The petitioner in his voluntary statement is alleged to have confessed that in August, 2022, he had ordered 30 grams of Truffles from the website through bitcoin for personal consumption and not for trade purpose. The arrest memo was issued on 14.10.2022. The petitioner was produced before the Special Court for NDPS cases and he was remanded to judicial custody on 14.10.2022. The learned Magistrate after perusing the complaint and the documents holding that prima facie case is made out against the petitioner took cognizance of the offences punishable under Section 8(3) read with Section 22(c), 23(c) 27 and 28 of NDPS Act. Being aggrieved, this petition is filed.
6. Sri C V Nagesh, learned Senior Counsel for the petitioner would make the following submissions:
a) The order passed by the Sessions Court taking cognizance of the offences is without application of mind.-4-
NC: 2023:KHC:45943 WP No. 18698 of 2023
b) The psychotropic substance seized from the petitioner is less than the commercial quantity. Therefore the allegation that the petitioner had possessed the psychotropic substance in commercial quantity as defined under Section 2(viia) is imaginary and unsustainable.
c) The complaint filed by the Inspector of Customs is without authority of law in the absence of notification issued by the Central Government under Clause (d) of sub-Section 1 of Section 36A of the NDPS Act authorizing the Inspector of Customs to file complaint relating to an offence under the Act before the Special Court.
d) The parcel containing psychotropic substance was lying in the Foreign Post Office, Chamarajpet, Bengaluru and though, there was no exigency for conducting search and seizure, the Inspector of Customs conducted search on 11.10.2022 from 6.00 p.m. onwards and concluded the proceedings of mahazar at 8.30 p.m. The respondent has not sent the copy of the information in writing under sub-Section (1) to the official superior within 72 hours as mandated in sub-Section (2) of Section 42 of NDPS Act. Therefore, the search and seizure is contrary to the mandatory provision contained in second proviso to Section 42(1) of the NDPS Act, and the entire proceedings from the stage of search and seizure culminating in taking cognizance stands vitiated for noncompliance of second proviso to Section 41(1) of -5- NC: 2023:KHC:45943 WP No. 18698 of 2023 NDPS Act and Section 42(2) of the Act. In support, reliance is placed on the following decisions of the Hon'ble Supreme Court:
i) State of Punjab -vs- Balbir Singh - (1994)3 SCC
299.
ii) Fariza Banu @ Janarthany @ Janani and another -
vs- State through Inspector of Police - (2004) 12 SCC 266:
7. Per contra, the learned counsel for the respondent would submit as follows:
a) The Inspector of Customs is empowered to exercise the power and perform the duties specified in Section 42 of the NDPS Act by virtue of the notification dated 14.11.1985 issued by the Central Government in exercise of the power conferred under Section 42(1) and Section 67 of the NDPS Act.
b) The Inspector of Customs is authorized to file complaint in relation to offences under the NDPS Act before the Special Court by virtue of the notification dated 27.9.1989 issued by the Central Government in exercise of the power conferred under Clause-(d) of sub-Section (1) of Section 36A of the Act.
c) Even accepting but not conceding that the search and seizure conducted after sunset is without obtaining the warrant or without recording the grounds of his belief, -6- NC: 2023:KHC:45943 WP No. 18698 of 2023 the search and seizure culminating in taking cognizance does not stand vitiated, since it can only be said to be an irregularity in the absence of any prejudice caused to the petitioner.
d) The seizure mahazar dated 11.1.2022 indicated that the weight of the seized psilocin is 125 grams. The notification dated 19.10.2001 issued under sub-Clause- (viia) and (xxiiia) of Section 2 of the NDPS Act specifies the small and commercial quantity of psilocin and the possession of 2 grams is classified as small quantity and 50 grams as commercial quantity. Therefore, the psilocin seized is more than the commercial quantity.
e) The materials on record establish that the procedure contemplated under Section 52A has been complied with and there is no illegality or procedure irregularity in disposal of seized psychotropic substances.
8. Before delving into the matter at hand, it is pertinent to cite the relevant provisions of the NDPS Act and the ratio enunciated by the Hon'ble Supreme Court of India with reference to the said provisions.
9. Section 2(viia) defines the term commercial quantity and small quantity of drugs that are considered as small or commercial quantities for the purposes of the Act.
10. Section 36A deals with offences triable by sessions court and sub-clause (d) states that the special court can take -7- NC: 2023:KHC:45943 WP No. 18698 of 2023 cognizance of the offence under the Act upon a police report or the fact constituting an offence or upon a complaint made by an officer of the Central Government authorized on this behalf.
11. Section 42 of the Act empowers designated officers to conduct searches and arrest without a warrant if they have reasonable grounds to believe that the contravention of the Act has taken place or is likely to occur. This provision enumerates the circumstances under which such searches and arrest can be carried out and the procedure that need to be followed during search operation.
12. The second proviso to Section 42(1) of the NDPS Act deals with the search to be conducted at any time between sunset and sunrise without obtaining an order of warrant, if the officer empowered apprehends the possibility of concealment of evidence or the offender is likely to escape by recording the grounds of his belief. To put it simply, the officer empowered between sunrise and sunset can conduct a search only by recording the grounds of his belief by dispensing with the warrant.
13. Section 52A deals with the disposal of seized narcotic drugs and psychotropic substances the procedure to be followed for such disposal.
14. The Hon'ble Supreme Court in the case of Sarija Banu @ Janarthani @ Janani (supra) at para-47 has held that the compliance of Section 42 is mandatory and that is a -8- NC: 2023:KHC:45943 WP No. 18698 of 2023 relevant fact which should have engaged the attention of the Court while considering the bail application. Therefore, the ratio enunciated in the aforesaid case is not applicable to the present case, since this petition is filed challenging the cognizance taken by the Special Court of the aforesaid offences.
15. The Hon'ble Supreme Court in the case of Sukhdev Singh (supra) with reference to Section 42 of the Act has held that the twin purposes of Section 42 are that (a) it is mandatory provision which ought to be constituted and complied with strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a short time thereafter and preferably post recovery. The compliance of the said provisions would minimize the purpose and effectiveness of Section 42 and to provide fairness in the process of recovery and investigation which is one of the basic features of criminal jurisprudence. It is a kind of prevention of false implication of innocent persons and the legislature in its wisdom had made the provisions of Section 42 of the Act mandatory and not optional as stated in the case of Karnail Singh.
16. The Hon'ble Supreme Court in the case of State of Punjab (supra) has held that under second proviso to Section 42(1) recording the grounds of his belief to dispense without obtaining warrant for conducting search between the sunrise and sunset is mandatory and so also, the provision contained in Section 42(2) of the Act which states that the officers empowered who takes down any information in writing or -9- NC: 2023:KHC:45943 WP No. 18698 of 2023 record the grounds under the proviso to Section 42(1) should send a copy thereof to his immediate official superior within 72 hours.
17. In the backdrop of the aforesaid provisions and the legal principles established by the Hon'ble Supreme Court, the following points raised for consideration require to be considered:
Point No.(i) Competency of the Inspector of Customs to conduct investigation and file a complaint as stated under sub-Clause (d) of Section 36A of the Act.
18. The investigation was conducted by the Inspector of Customs, and the cognizance of the aforesaid offences was taken on a complaint filed by the Inspector of Customs. In terms of Section 42 (1), Section 67 and Section 36A of the Act, the Central Government has issued notifications dated 14.11.1995, 27.9.1989 authorizing the officer of and the above rank of the Inspector in the department of Customs to conduct search and seizure without warrant and to file a complaint relating to an offence under the Act before the Special Court.
19. The words of and above the rank implies those in the rank of Inspector or officers above the rank of Inspector in the department of Customs are authorized to file a complaint. It signifies that other than the Inspector, the officers higher in rank are also authorized, and the Inspector is not excluded from the specified category. Therefore, the Inspector of
- 10 -
NC: 2023:KHC:45943 WP No. 18698 of 2023 Customs is authorized to conduct search and seizure and to file a complaint.
Point No. (ii) Whether the psychotropic substance seized was less than the commercial quantity to prosecute the petitioner for the offences alleged?
20. The weight of the seized psilocin was 125 grams and as per the notification, the small quantity of psilocin is 2 grams and the commercial quantity is 50 grams. Therefore, the contention of the learned counsel for the petitioner that the psychotropic substance seized is not in its purest form and that it is a mixture containing 75 grams of microdosing truffles and 50 grams of magic truffles is without any substance, since the learned sub-Divisional Magistrate allowed the application filed under Section 52A of the NDPS Act and accordingly, the packet was marked as `P' containing six strips/packets of microdosing truffles weighing 74 grams and three packets of magic truffles psilocyte atlantis weighing 52 grams.
21. In the decision relied upon by the petitioner, the Hon'ble Supreme Court in the case of Hira Singh and another - vs- Union of India and another [(2020) SCC Online SC 382] has held that in case of a seizure of mixture of narcotic drug and psychotropic substance with one or more neutral material, the neutral material is not to be excluded and should be taken into consideration along with the weight of the offending drug while determining whether it amounted to small quantity or commercial quantity.
- 11 -
NC: 2023:KHC:45943 WP No. 18698 of 2023
22. Therefore, the contention of the petitioner that the psychotropic substance seized is of small quantity is without any substance.
Point No.(iii): Whether noncompliance of second provisions of Section 42(1) and Section 42(2) vitiate the investigation culminating in taking cognizance of the offence by the Special Court?
23. The parcel containing psychotropic substances was lying in the Foreign Post Office. The petitioner was not in possession of the psychotropic substances. There was no possibility of concealment of the evidence or the accused escaping. The search commenced at about 6.00 p.m. and ended at about 8.25 p.m. The situation did not warrant the officer empowered to dispense with the obtaining warrant. Even otherwise, the officer empowered was required to record the grounds of his belief to dispense with the warrant stating that there is possibility of concealment of evidence or the accused is likely to escape. The officer empowered without obtaining a warrant or without recording the grounds of his belief to dispense with the warrant has conducted the search and opened the parcel in presence of the witnesses and the same is contrary to second proviso to Section 42(1).
24. The complainant is not accompanied by any material that the officer empowered had sent a copy of the information recorded in writing under sub section (1) to the higher officer within seventy hours. The photocopy of the
- 12 -
NC: 2023:KHC:45943 WP No. 18698 of 2023 information produced during the course of arguments alleged to have been sent to the higher officer cannot be believed more so when the same is not part of the complainant and there is no whisper about the same in the complaint.
25. Therefore, the investigation of the offence culminating in taking cognizance of the offence stands vitiated for non compliance of mandatory provisions contained in Second proviso to Section 42(1) and provision contained in Section 42(2).
26. The petitioner is in custody since 14.10.2022 and it would be unfair if the criminal proceedings are allowed to be continued, since the probability of the conviction is remote and bleak for non-compliance of mandatory provision contained in Section 42 of the Act and the Hon'ble Supreme Court has held that if there is a contravention, that would affect the prosecution case and vitiates the trial. The petitioner has no criminal antecedent of his involvement in drug trafficking.
27. In view of the preceding analysis, the search and seizure conducted was in contravention of the mandatory provision contained in second proviso to Section 42(1) of the NDPS Act and also the Inspector of Customs having not informed his immediate superior officer, the information recorded in writing as contemplated in the mandatory provision contained in Section 42(2) of the NDPS Act, the prosecution of the petitioner will be unjust and arbitrary. Accordingly I pass the following:
- 13 -
NC: 2023:KHC:45943
WP No. 18698 of 2023
ORDER
i) The petition is allowed.
ii) The impugned proceedings in Spl.CC No.816/2023
on the file of the XXXIII Additional City Civil and Sessions Judge, NDPS Special Court, Bengaluru City, stands quashed and the petitioner is acquitted of the offences alleged against him.
iii) The petitioner to be released from judicial custody forthwith if he is not required in any other case.
Sd/-
JUDGE BKM