UNION OF INDIAversusSHEO SHAMBHU GIRI

                       [2014] 3 S.C.R. 803

                         UNION OF INDIA                                A
                                 v.
                     SHEO SHAMBHU GIRi
              (Criminal Appeal No. 1027 of 2008)
                        MARCH 25, 2014
                                                                       B
    [DR. B.S. CHAUHAN AND J. CHELAMESWAR, JJ.]

        Narcotic Drugs and Psychotropic Substances Act, 1985:
   s.23 - Applicability of - Held: s.23 creates three offences i.e.
   import into India, export out of India; and transhipment of any     C
   narcotic drug or psychotropic substance - Word
   "transhipment" occurring u/s. 23 must necessarily be
   understood in the context of the scheme of the section and
   the preceding expressions of ''import into India" and "export
   out of India" to mean only transhipment for the purpose of          D
   either import into India or export out of India - In the instant
   case, no evidence to prove that the respondent was carrying
   contraband either in the course of import into India or export
 . out of India - Therefore, High Court rightly set aside conviction
· uls.23. ·                                                            E
     The sole respondent along with twc other accused
 was tried for offences under Sections 23 and 29 of the
 NDPS Act. The trial court found the respondent guilty of
 an offence under Section 23 of the NDPS Act but found
 that the charge under Section 29 of the Act was not                   F
 proved against him. He was, therefore, convicted for an
 offence under Section 23 of the NDPS Act and sentenced
 to undergo RI for 10 years and also directed to pay a fine
 of Rs. 1 lakh for an offence under Section 23 of the NDPS
 ~                                                                     G
                                      .
     The High Court held that prosecution could not
 prove that the contraband was of foreign origin and set
 aside his conviction under Section 23 of the NDPS Act.
                          803                                          H
    804      SUPREME COURT REPORTS              [2014) 3 S.C.R.

A Hence the instant appeal.

          Dismissing the appeal, the Court

       HEl,.D: 1. Section 23 of the NDPS Act creates three
  offences and they are; (i) import into India, (ii) Expor~ out
B of India; and (iii) Transhipment of any narcotic drug or
  psychotropic substance. The word "tranships" occurring
  under Section 23 must necessarily be understood in the
  context of the scheme of the Section and the preceding
  expressions of "import into India" and "export out of
C India" to mean only transhipment for the purpose of
  either import into India or export out of India. [Para 7] [807-
  A-D]

       2. It can be seen from the language of the Section
0 9(1) of NDPS Act that the Central Government is
  authorized to make rules which may permit and regulate
  various activities such as cultivation, gathering,
  production, possession, sale, transport, inter state import
  or export of various substances like coca leaves, poppy
E straw, opium poppy and opium derivatives etc., while the
  Parliament used the expression transport in the context
  of inter-state import or export of such material in sub-
  section 1(a)(vil, in the context of importing to India and
  export out of India, Parliament employed the expression
  transhipment in Section 9(i)(a)(vii). Therefore, the High
F Court rightly concluded that the conviction of the
  respondent under Section 23 of the NDPS Act cannot be
  sustained. There is no reason to interfere with the same.
  [Paras 9 and 1O] [808-G-H; 809-A-B]
G       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1027 of 2008.
       From the Judgment and Order dated 19.05.2006 of the
  High Court of Judicature at Patna in Criminal Appeal No. 359
H of 2003.
      UNION OF INDIA v. SHEO SHAMBHU GIRi                   805


    Dr. Ashok Dhamija, Binu Tamta, Sonia Dhamija, B.K.              A .
Prasad, Shawna Singh Dev, B.V. Balaram Das for the
Appellant.

     Ardhendumauli Kumar Prasad, Nirmal Kumar Ambastha,
Aviral Shukla for the Respondent.                                   B
    The Judgment of the Court was delivered by

     J. CHELAMESWAR, J. 1. Aggrieved by the judgment in
Criminal Appeal No. 359 of 2003 of the High Court of Patna,
the instant appeal is preferred by the Union of India.              c
      2. By the judgment under appeal, three appeals came to
be preferred by the three different accused who were convicted
for different offences under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short "the NDPS Act")        D
by the Court of 5th Additional District and Sessions Judge,
Mothari of East Champaran District in Excise Case No. 31 of
2001 by its judgment dated 12th June, 2003. By the judgment
under appeal, the conviction of all the appellants was set aside.
It is not very clear whether any appeals are preferred against
the acquittal of the other two accused except the respondent        E
herein.

     3. The sole respondent along with two other accused was
tried for offences under Sections 23 and 29 of the NDPS Act.
The trial court found the respondent herein guilty of an offence    F
under Section 23 of the NpPS Act but found that the charge
under Section 29 of the Act is not proved against him. He was,
therefore, convicted for an offence under Section 23 of the
NDPS Act and sentenced to undergo RI for 10 years and also
to pay a fine of Rs. 1 lakh for an offence under Section 23 of      G
the NDPS Act.
    4. The High Court, allowed the appeal of the respondent
and set aside his conviction under Section 23 of the NDPS Act.
Relevant portion of the judgment reads as follows:-
                                                                    H
    806       SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A         "17. So far as appellant Sheo Shambhu Giri of Cr. Appeal
          No. 359 of 2003 is concerned he has also assailed his
          conviction on many grounds including that the Ganja was
          recovered from his possession. His submission was also
          that though he was charged under sections 23 and 29 of
B         the act but he was acquitted under Section 29 of the act
          and was not considered to be a part of conspiracy and
          admittedly he was only a carrier at the instance of other
          persons. As such his punishment under section 23 of the
          Act is also not tenable in the eye of law. That apart it has
          been submitted that the ingredients of section 23 of the
c         Act is not attracted in this case because there is no
          evidence to prove that the Ganja was imported from
          foreign land. As per the wording of the section there must
          be import of the contraband to attract punishment under
          this section but the prosecution could not prove that the
D
          Ganja was of foreign origin. Even prosecution could not
          prove whether the substance so seized was actually Ganja
          or not because no chemical examination report has been
          produced in the court in original form neither the chemical
          examiner was examined to prove them. It has also been
E         submitted that the mandatory provision of, sections 42, 52
          and 57 of the act has not been strictly complied with. That
          apart it has also been submitted that there is no
          independent witness to support the recovery of contraband
          and the prosecution failed to examine them. Only
F         independent witness is a witness to Panchnama (Ext. 18)"

       5. Dr. Ashok Dhamija, learned counsel appearing for the
  appellant submitted that the High Court grossly erred in coming
  to the conclusion that in the absence of proof that the Ganja
G allegedly seized from the custody of the respondent is of foreign
  origin, Section 23 of the NDPS Act is not attracted.
        6. The learned counsel further assailed the conclusion of
    the High Court that the prosecution could not prove that the
    material seized from the respondent was ganja.
H
      UNION OF INDIA v. SHEO SHAMBHU GIRi                    807
             [J. CHELAMESWAR, J.]
      7. On the other hand, the learned counsel for the A
respondent submitted that Section 23 of the NDPS Act creates
three offences and they are; (i) import into India, (ii) Export out
of India; and (iii) Transhipment of any narcotic drug or
psychotropic substance. If any one of the three activities is
undertaken in contravention of any one of the provisions of the B
Act or the Rules made thereunder or in contravention of an order
made or condition of licence or permit granted or certificate or
authorization issued either under the Act or the Rules. The
expression "tranships" occurring under Section 23 must
necessarily be understood in the context of the scheme of the c
Section and the preceding expressions of "import into India"
and "export out of India" to mean only transhipment for the
                                     oz
 purpose of either import into India export out of India. The
 learned counsel further submitted that the High Court rightly
 concluded in the absence of any proof that the respondent was
                                                                    0
 carrying contraband either in the course of import into India or
 export out of India, section 23 is not attracted.

     8. We agree with the submission made by the respondent
on the construction of Section 23 of the NDPS Act, the
expression "tranships" occurring therein must necessarily be         E
understood as suggested by the learned counsel for the
respondent. There is yet another reason apart from the
construction of the language of Section 23 which compels us
to accept the submission made by the learned counsel for the
respondent. Section 9(1)(a)(vii) also employs the expression         F
transhipment. Section 9(1) reads as follows;

     "9. Power of Central Government to permit, control
     and regulate. -(1) Subject to the provisions of section 8,
     the Central Government may, by rules-
                                                                     G
     (a) permit and regulate-

     (i) the cultivation, or gathering of any portion (such
     cultivation or gathering being only on account of the Central
     Government) of coca plant, or the production, possession,       H
    808       SUPREME COURT REPORTS                  [2014} 3 S.C.R.

A         sale, purchase, transport, import inter-State, export inter-
          state, use or consumption of coca leaves;

          (ii) the cultivation (such cultivation being only on account
          of Central Government) of the opium poppy;
B         (iii) the production and manufacture of opium and
          production of poppy straw;

          (iv.) the sale of opium and opium derivatives from the
          Central Government factories for export from India or sale
c         to State Government or to manufacturing chemists;

          (v) the manufacture of manufactured drugs (other, than
          prepared opium) but not including manufacture of medicinal
          opium or any preparation containing any manufactured
          drug from materials which the maker is lawfully entitled to
D         possess;
          (vi) the manufacture, possession, transport import inter-
          state, export inter-State, sale, purchase, consumption or
          use of psychotropic substances;
E
          (vii) the import into India and export from India and
          transhipment of narcotic drugs and psychotropic
          substances;

          (b) prescribe any other matter requisite to render effective
F         the control of the Central Government over any of the
          matters specified in clause (a)"
       9. It can be seen from the language of the Section that the
  Central Government is authorized to make rules which may
G permit and regulate various activities such as cultivation,
  gathering, production, possession, sale, transport, inter state
  import or export of various substances like coca leaves, poppy
  straw, opium poppy and opium derivatives etc., while the
  Parliament used the expression transport in the context of inter-
H state import or export of such material in sub-Section 1(a)(vi),
       UNION OF INDIA v. SHEO SHAMBHU GIRi                809
              [J. CHELAMESWAR, J.]
in the context of importing to India and export out of India,    A
Parliament employed the expression transhipment in Section
9(i)(a)(vii).

    10. Therefore, the High Court rightly concluded that the
conviction of the respondent under Section 23 of the NDPS Act    8
cannot be sustained. We see no reason to interfere with the
same.

     11. In view of such conclusion, we do not deem it
necessary to examine the correctness of other conclusions
recorded by the High Court for acquitting the respondents. The   C
appeal is, therefore, dismissed.

D.G.                                      Appeal dismissed.