Sandeep Sankar v. Superintendent of Customs

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 25[ TH ] DAY OF JULY 2023 / 3RD SRAVANA, 1945`** ``` CRL.MC NO. 3354 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 837/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM / IV ADDITIONAL MACT, ERNAKULAM ``` ## **`PETITIONER/S:`** ``` SANDEEP SANKAR AGED 31 YEARS S/O SIVASANKARA PILLAI SARANYA, KAMPALADI, PORUVAZHI.P.O, KOLLAM DISTRICT (NOW RESIDING AT C-3/155, SECTOR 31, NOIDA, U.P, PIN – 690520) BY ADVS. R.ANIL B.RAMAN PILLAI (SR.) SUJESH MENON V.B. THOMAS ABRAHAM (NILACKAPPILLIL) THOMAS SABU VADAKEKUT MAHESH BHANU S. RESSIL LONAN ``` ## **`RESPONDENT/S:`** ``` SUPERINTENDENT OF CUSTOMS CUSTOMS PREVENTIVE COMMISSIONERATE, COCHIN REPRESENTED BY THE STANDING COUNSEL TO CUSTOMS AND CENTRAL EXCISE, HIGH COURT OF KERALA, KOCHI, PIN – 682031 BY ADV KAVERY S THAMPI SRI. T R RANJITH, SR. PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.07.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 3354 OF 2023 ``` ``` 2 ``` ## **ORDER** The instant petition is filed under Section 482 of the Code of Criminal Procedure (“the Code”) for the sake of brevity. 2. The petitioner herein is the accused in S.C. No. 837/2017 on the file of the Additional Sessions Judge, VIII, Ernakulam. In the aforesaid case, he is facing prosecution for having committed offenses punishable under sections 22 and 23 r/w Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act (for brevity, “the NDPS Act''). 3. The prosecution allegation is that on the basis of information that 180 kgs of Khat Leaves despatched from Ethiopia had reached the Foreign Post Office, Kochi, the Customs Preventive Unit, Kochi rushed to the spot. They found that 8 cartons containing Khat Leaves were sent by Akasha Imports and Exports, Addis Ababa, Ethiopia, addressed to Sri. Girish Kumar, Poruvazhi, Kollam. Field detection tests were carried out, and the goods tested positive for amphetamine. Samples were taken, and the same was sent to the Kerala Forest Research Institute. The results disclosed that the samples contained two alkaloid ingredients, Cathine and Cathinone, which are included as Psychotropic Substances under the NDPS Act. The contraband was seized, and the crime was promptly registered. The ``` CRL.MC NO. 3354 OF 2023 ``` ``` 3 ``` petitioner filed a petition seeking discharge, which has been rejected by the learned Sessions Judge, holding that the charge against the petitioner cannot be said to be groundless. The said order is under challenge. 4. Sri. R. Anil, the learned counsel appearing for the petitioner, submitted that the petitioner is innocent. According to the learned counsel, Khat Leaves has not been categorized as a psychotropic substance on 7.2.2017. It was notified much later on 27.2.2018. It is further submitted that Khat leaves are consumed as herbal tea in the African continent and the fact that the leaves contained prohibited substances was revealed only after the tests were conducted at the Research Institute. It is further submitted that the petitioner is an innocent victim, and it would be a travesty of justice if he is tried for having committed an offence under the NDPS Act. 5. In response, it is submitted by Sri. Sreelal Warrier, the learned counsel appearing for the respondents that, raising identical contentions the petitioner had earlier approached this Court and preferred Crl. M.C. No. 4186/2017 challenging his implication in the case. A learned Single Judge of this Court, by order dated 06.12.2017, had dismissed the petition. According to the learned Standing Counsel, the said order has not been challenged by the petitioner herein as the same has become final. It is ``` CRL.MC NO. 3354 OF 2023 ``` ``` 4 ``` further submitted that at the stage of 227 of the Code, the Court has only to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 6. I have considered the submissions advanced and have gone through the records. 7. In **Kanchan Kumar v State of Bihar** [2022 (5) KLT Online 1114], the Apex Court had occasion to elucidate the principles governing Section 227 of the Code. It was observed as under in Paragraph Nos. 13 to 15 of the judgment. **13.** The threshold of scrutiny required to adjudicate an application under Section 227 of the Cr.P.C., is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case. In Prafulla Kumar Samal (supra), it was noted that: “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. ``` CRL.MC NO. 3354 OF 2023 ``` ``` 5 ``` (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” (emphasis supplied) **14** . In Sajjan Kumar v. Central Bureau of Investigation (2010 (4) KLT OnLine 1006 (SC) = (2010) 9 SCC 368), the Court cautioned against accepting every document produced by the prosecution on face value, and noted that it was important to sift the evidence produced before the Court. It observed that: “21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: ... (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find ``` CRL.MC NO. 3354 OF 2023 ``` ``` 6 ``` out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case...” (emphasis supplied) **15** . Summarising the principles on discharge under Section 227 of the Cr.P.C, in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019 (2) KLT OnLine 3022 (SC) = (2019) 16 SCC 547) this Court recapitulated: “23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.” (emphasis supplied) 8. It would be apposite to note that the petitioner had earlier approached this Court earlier and had raised the very same contentions. The ``` CRL.MC NO. 3354 OF 2023 ``` ``` 7 ``` ## same was repelled by this Court. The relevant portion of the order reads as ## under. “3. I heard both sides in detail on the issue raised by the petitioner as to whether the substance seized from his possession is Psychotropic Substance. Admittedly, it is a quantity of 180 Kgs of khat leaves. The substance was subjected to analysis at the laboratory. On analysis, it was found containing “cathinone” and “cathine”. These two are Psychotropic Substances included in the schedule to the NDPS Act. Cathinone is listed as item No.125 in the schedule, and cathine is listed as item No.171 in the schedule. Of course, khat leaves, by that name is not seen listed in the schedule to the NDPS Act. The question for consideration is not how the substance is called, or what is its scientific name or botanical name, but what does it contain. The substance allegedly seized from the hands of the accused was found containing two prohibited Psychotropic Substances listed in the schedule to the NDPS Act. When the entire quantity of 180 Kgs is taken, no doubt, prima facie the Psychotropic content will constitute commercial quantity. Section 2(xxii) of the NDPS Act defines what Psychotropic Substance means. It means any substance, natural or synthetic, or any natural material or any preparation containing anything defined as Psychotropic Substance, and listed in the schedule to the NDPS Act. When cathinone and cathine are Psychotropic Substances listed in the schedule to the NDPS Act, any substance or preparation containing cathine or cathinone will come under the definition of Psychotropic Substance under Section 2(xxii) of the NDPS Act. If so, anybody found possessing any substance containing such Psychotropic Substances will be liable to prosecution under the NDPS Act. The Court cannot take things technically and mechanically quash the prosecution saying that the substance by name “khat leaves” is not included or listed in the schedule to the NDPS Act. I find no merit in the contentions raised by the petitioner, and I find no legal ground or factual ground to quash the prosecution.” ``` CRL.MC NO. 3354 OF 2023 ``` ``` 8 ``` In view of the findings above, which are unchallenged, the learned Sessions Judge was well justified in dismissing the petition for discharge. It cannot at this stage be said that the accusation is groundless. Having considered the facts and circumstances and having gone through the order passed by the learned Sessions Judge, I find no reason to interfere. This petition is dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` CRL.MC NO. 3354 OF 2023 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 3354/2023`** ## **`PETITIONER ANNEXURES`** ``` Annexure1 CERTIFIED COPY OF THE COMPLAINT PENDING AS S.C.NO.837/2017 IN THE COURT OF THE ADDL.SESSIONS JUDGE-VIII, ERNAKULAM. Annexure2 CERTIFIED COPY OF THE ORDER DATED 9-2-2023 OF THE ADDL. SESSIONS JUDGE-VIII, ERNAKULAM IN CRL.M.P. NO. 2292/2022 IN S.C.NO.837/2017. ```