The Single Bench of Justice Rai Chattopadhyay of the Calcutta High Court in the case of Roshan Chowdhury @ Roshan Chudhary Vs The State of West Bengal held that Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the “NDPS Act”) can’t be sustained if the FIR does not disclose allegation of any import or export or transhipment of the contraband. It was opined that under a stringent statute like NDPS, the responsibility of the prosecution agency is much more as this Act digresses from the general presumption of “innocent until proven guilty.” Under NDPS, the accused is presumed to be guilty and therefore he has the burden to mitigate the presumption.
Brief Facts:
The factual matrix of the case is that in pursuance of the FIR lodged, a case has been initiated against the Petitioner under section 23(c) of the NDPS Act. Hence, the Petitioner in the present revision has challenged the validity of the proceedings.
Contentions of the Petitioner:
It was contended that in the FIR there was no allegation made regarding the export, import, or transhipment of any narcotic drugs or psychotropic substances. Furthermore, there was no recovery of any contraband article from the possession of the Petitioner.
It was further argued that there was a discrepancy in the FIR and charge sheet regarding the nature and category of contraband. Hence, the base of the case was alleged to be shaken.
Contentions of the State:
It was contended that it would not be appropriate for the Court to interfere with the prosecution in this matter when contraband items have been seized and arrests have been made. It was further contended that the word "or" used in section 23 of the NDPS act is disjunctive, meaning that the illegal import, export, or transhipment of the contraband goods, individually and in exclusion from each other, is penalised under the aforementioned provision of the statute.
Observations of the Court:
Concerning the interpretation of Section 23, it was observed that “tranships” must be understood in the context of the scheme and further phrases “imports into India” and “exports from India” mean only transhipment for either import or export into India or out of India. If a circumstance does not fall under this, then Section 23 would not be attracted.
In the present case, it was noted that the FIR did not mention any allegations of the import, export, or transhipment of illegal substances. Therefore, Section 23 of the NDPS Act should not be applied in any way.
It was opined that under a stringent statute like NDPS, the responsibility of the prosecution agency is much more as this Act digresses from the general presumption of “innocent until proven guilty.” Under NDPS, the accused is presumed to be guilty and therefore he has the burden to mitigate the presumption.
The Decision of the Court:
The Hon’ble High Court quashed and set aside the pending case and accordingly, allowed the revision petition.
Case Title: Roshan Chowdhury @ Roshan Chudhary Vs The State of West Bengal
Coram: Hon’ble Mr. Justice Rai Chattopadhyay
Case No: C. R.R. 199 OF 2022
Advocates for the Petitioner: Advs. Ms. Ashima Mandla, Ms. M. Singh, Ms Anwasha Halder, Mr. Deborshi Dhar.
Advocates for the State: Advs. Mr. A.S. Chakraborty, Mr. Sourav Ganguly, Mr. Aniruddha Biswas, Mr. Kallol Nag
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