Gujarat High Court
Chirag Hasmukhrai Bhojani vs State Of Gujarat on 9 May, 2018
Author: J.B. Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/28230/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 28230 of 2017
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CHIRAG HASMUKHRAI BHOJANI & 1... Petitioners
Versus
STATE OF GUJARAT & 1... Respondents
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Appearance:
MR MEHTA, SR ADVOCATE WITH MS ASHLESHA M PATEL(6127) for the
PETITIONER(s) No. 1,2
MR NIRZAR S DESAI(2117) for the RESPONDENT(s) No. 2
MR HK PATEL, APP(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/05/2018
ORAL ORDER
1 Rule returnable forthwith. Mr. H.K. Patel, the learned Additional Public Prosecutor waives service of notice of Rule for and on behalf of the respondent No.1 - State of Gujarat and Mr. Nirzar Desai, the learned counsel waives service of notice of Rule for and on behalf of the respondent No.2 - Directorate of Revenue Intelligence.
2 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants - original accused Nos.2 and 3 seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Sessions Case No.4 of 2017 pending in the Court of the Principal Sessions Judge, Ahmedabad arising from a complaint under Sections 22, 23, 25, 28, 29 and 30 read with 8(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 120B of the Indian Penal Code.
3 As a neat question of law falls for my consideration, I need not
Page 1 of 3
R/CR.MA/28230/2017 ORDER
discuss the facts in details. The prosecution against the applicants herein and other coaccused is for being in possession, export and illegal import of "Khat Leaves" (Catha Edulis) containing Cathinone and Cathine - a banned psychotropic substance under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act').
4 The principal argument of Mr. Mehta, the learned senior counsel appearing with Ms. Patel, the learned counsel for the applicants is that when the prosecution came to be instituted against the applicants, the plant "Khat" was neither a narcotic drug nor psychotropic substance. It is submitted that Catha Edulis came to be included in the list of psychotropic substances under the Act, 1985 by virtue of a Notification No.S.0.821(E) dated 27th February 2018. It appears that an application was filed in this regard under the Right to Information Act. The applicant No.1 was informed by the Government of India, Ministry of Finance, Department of Revenue, vide letter dated 1st March 2018 as regards the inclusion of "Khat Leaves" as a psychotropic substance. The communication is extracted hereunder:
"Subject: Information sought under RTI Act, 2005.
Sir, Please refer to your RTI application dated, received in this Department on 31.01.2018 from National Academy of Customs Excises & Narcotics.
2 In this regard, it is informed that Government of India, Ministry of Finance vide notification No.S.O.821(E), dated 27th February, 2018 has notified Catha Edfulis (Dry Chatt or Mira Leaves Dry Chat Edulis) as a psychotropic substance under Narcotic Drugs and Psychotropic Substances, 1985."
5 Thus, for the first time, "Khat Leaves" came to be included in the list of psychotropic substances under the Act, 1985 only from 27 th February 2018.
Page 2 of 3R/CR.MA/28230/2017 ORDER 6 Mr. Desai, the learned standing counsel appearing for the
respondent No.2 fairly conceded that the applicants cannot be prosecuted for the alleged offence as on the date of commission of the offence, "Khat Leaves" were not included as a psychotropic substance.
7 Having regard to the stance of the respondent No.2, there should not be any difficulty in allowing this application and quashing the prosecution against the applicants.
8 In the result, this application is allowed. The proceedings of the Sessions Case No.4 of 2017 pending in the Court of the Principal Sessions Judge, Ahmedabad are hereby quashed. All consequential proceedings pursuant thereto stand terminated. Rule is made absolute. Direct service is permitted.
9 In view of the order passed in the main matter, the connected criminal miscellaneous application, if any, is hereby disposed of accordingly.
(J.B. PARDIWALA, J.) CHANDRESH Page 3 of 3