2020 (9) TMI 421 - HC - Customs

Smuggling - import of plant khat - Narcotics drugs or not - only ground raised by the petitioner is that the alleged package was booked prior to the notification i.e., on 24.02.2018. Therefore, no offence can be tried as on the date of booking of the package and the substance was not banned in India - HELD THAT - In the case on hand, the package was reached the shores of Mumbai on 03.03.2018 and thereafter it reached the Foreign Post Office, Meenambakkam, Chennai on 05.03.2018. Thereafter, on 12.03.2018, the parcel was examined and referred to Postal Appraisal Department. Thereafter only on 27.04.2018, in the presence of two independent witnesses, the officer in-charge taken the parcel for examination and found two pink polythene bags containing khat leaves weighing 7.9 kg, addressed to the petitioner herein. Therefore, the commission of the offence had taken place on 27.04.2018 as such, on the date of commission of offence, the contraband called khat leaves were included as psychotropic substances and the same was notified by the Government of India, Ministry of Finance vide notification No.S.O.821(E), dated 27.02.2018. Reliance was placed in the case of CHIRAG HASMUKHRAI BHOJANI 1 VERSUS STATE OF GUJARAT 1 2018 (5) TMI 2018 - GUJARAT HIGH COURT where it was held that on the date of commission of the offence, the contraband called khat leaves were not included as psychotropic substances. It is notified only on 27.02.2018 and the khat leaves came to be included under NDPS Act after the notification - the above judgement is not applicable to the case on hand and on the date of commission of offence the contraband called khat leaves were very much included in the list of psychotropic substances under the NDPS Act, 1985. Petition dismissed.

Summary

Issues:
1. Quashing of proceedings under NDPS Act and Customs Act based on the timing of the notification regarding psychotropic substances.
2. Application of the notification dated 27.02.2018 to the case involving the import of Khat Leaves.
3. Interpretation of the legality of the import parcel containing Khat Leaves and its classification as a psychotropic substance.

Analysis:
1. The petitioner, an Ethiopian national studying in Chennai, challenged the initiation of proceedings under the NDPS Act and Customs Act for the import of a package containing Khat Leaves. The petitioner argued that Khat Leaves were not classified as a narcotic drug or psychotropic substance at the time of booking the package on 24.02.2018, prior to the notification on 27.02.2018. Relying on a Gujarat High Court judgment, the petitioner sought to quash the proceedings based on the non-retrospective application of the notification.

2. The respondent, represented by the Special Public Prosecutor, contended that the package, booked from Kenya, was examined on 12.03.2018 and found to contain Khat Leaves, which were considered a psychotropic substance post the notification. The parcel reached Chennai on 05.03.2018, and the examination on 27.04.2018 confirmed the presence of the contraband. The respondent argued that the notification applied to the case as the substance was identified as a psychotropic substance at the time of the offence, justifying the continuation of the proceedings.

3. The court analyzed the timing of events, emphasizing that the package containing Khat Leaves was examined and confirmed to be a psychotropic substance after the notification date. Unlike the Gujarat High Court case, in this instance, the contraband was identified as a psychotropic substance at the time of the offence. Therefore, the court dismissed the petitioner's argument, ruling that the contraband was covered under the NDPS Act following the notification. Consequently, the court dismissed the petition, upholding the legality of the proceedings against the petitioner related to the import of Khat Leaves.

This detailed analysis of the judgment highlights the key arguments presented by both parties and the court's decision based on the application of the notification regarding psychotropic substances to the case involving the import of Khat Leaves.