2001 (4) TMI 915 - HC - Customs

Summary

Issues Involved:
1. Possession of Psychotropic Substance
2. Attempt to Export Psychotropic Substance
3. Financing Illicit Trafficking
4. Abetment of Illicit Trafficking
5. Compliance with Mandatory Provisions of NDPS Act
6. Safe Custody of Seized Samples
7. Admissibility of Statements under Section 67 of NDPS Act

Detailed Analysis:

1. Possession of Psychotropic Substance:
The accused A-3 to A-5 were charged under Section 22 of the NDPS Act for possession of Methaqualone Tablets. The court found that the chemical composition provided by the expert witness did not match the composition listed in the NDPS Act schedule. The discrepancy in the chemical formula led to the conclusion that the substance seized was not Methaqualone as defined under the Act. Consequently, the prosecution failed on this ground alone.

2. Attempt to Export Psychotropic Substance:
A-2 to A-5 were charged under Section 23 read with Section 28 of the NDPS Act for attempting to export Methaqualone to Nairobi. The court noted that the evidence presented did not establish that the substance was Methaqualone, thus negating the charge of attempting to export a psychotropic substance.

3. Financing Illicit Trafficking:
A-1 was charged under Section 27-A of the NDPS Act for financing the illicit trafficking of Methaqualone. Given the court's finding that the substance was not Methaqualone, the charge of financing its trafficking could not stand.

4. Abetment of Illicit Trafficking:
A-1, A-2, and A-6 were charged with abetting A-3 to A-5 under Sections 22 and 29 of the NDPS Act. The court found that the prosecution failed to prove that the substance involved was a psychotropic substance, thus the charge of abetment was not substantiated.

5. Compliance with Mandatory Provisions of NDPS Act:
The defense argued non-compliance with Section 42(2) of the NDPS Act, which mandates that any information received must be communicated to the superior officer in writing. The court found that P.W.1 admitted to not informing his superior in writing, which is a mandatory requirement. This non-compliance rendered the prosecution's actions suspect and prejudiced the accused.

6. Safe Custody of Seized Samples:
The defense raised doubts about the safe custody of the samples, noting discrepancies in the weight of the samples sent for testing. The court found that the samples were not properly weighed and sealed, and there was a possibility of tampering. This raised doubts about whether the samples tested were indeed the ones seized from the accused.

7. Admissibility of Statements under Section 67 of NDPS Act:
The defense contended that statements recorded under Section 67 of the NDPS Act are not admissible as evidence. The court agreed, noting that Section 67 is part of the investigation process and does not confer quasi-judicial powers like Section 108 of the Customs Act. Therefore, statements made under Section 67 cannot be used as evidence for prosecution.

Conclusion:
The court concluded that the prosecution failed to prove the charges beyond a reasonable doubt. The accused-appellants were acquitted of all charges, and the order of conviction and sentence by the Metropolitan Sessions Judge, Hyderabad was set aside. The accused were ordered to be released immediately if not required in any other case, and any fine paid was to be refunded.