TMI Blog2019 (3) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... ested while he was standing near Mahalakshmi Tower Lodge at Kovilpatti by the DRI officers. The shipping bill was not filed by the appellant. The appellant is neither the owner nor the exporter of the goods also. There is no direct evidence that the appellant had handled or had rendered any positive act for the smuggling of goods out of India. The entire evidence for imposing penalty upon the appellant is based on statements. The penalty imposed cannot sustain - appeal allowed - decided in favor of appellant. - C/104/2011 - Final Order No. 40594/2019 - Dated:- 25-3-2019 - Ms. Sulekha Beevi C.S., Member (Judicial) and Shri Madhu Mohan Damodhar, Member (Technical) Shri P.V. Sanjeev, Advocate for the Appellant Ms. T. Usha Devi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of impugned order dated 22.12.2010 by the adjudicating authority inter alia confirming proposals in the SCN and also imposing following penalties:- under Section 114 (i) of the Act, inter alia on (i) Shri A.P.T. Mahadevan Rs.25,00,000/- under Section 117 of the Act, inter alia on (i) Shri M.K.M. Manthiram Rs.1,00,000/- (ii) Shri C. Gunasekaran Rs.10,000/- (iii) M/s.Smile Shipping Services Rs.1,00,000/- (iv) Shri B. Jawahar Rs.50,000/ 2. The ld. counsel Shri P. V. Sanjeev appeared and argued the matter on behalf of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne and Ketamine Hydrochloride are different and distinct goods. He relied upon the decision of the jurisdictional High Court in the case of M. Buhari Vs. Statement of Tamilnadu reported in 2010 (2) MWN (Crl.) 414 (DB) to argue that the Hon'ble High Court in the said case had held that Ketamine Hydrochloride is different from Ketamine. Notification 67/2007 states that no objection certificate is required for export of Ketamine. That there is no such requirement in the case of Ketamine Hydrochloride. He thus argued that the penalty imposed upon the appellant is without any legal basis. 4. The ld. Ms. T. Usha Devi supported the findings in the impugned order. She referred to the statements recorded from various witnesses and argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he submitted that there is sufficient evidence to show that the appellant attempted to smuggle the prohibited goods out of India. The appellant in his statement dated 25.12.2009 admitted that 200 Kgs. of Ketamine Hydrochloride belonged to Shri Yasin of Maravamangalam near Madurai who is also an associate of Shri Ambalavanan. Shri N. Kandasamy in his statement dated 25.12.2009 confessed that Ambalavanan introduced Yasin and Yasin gave him salary of ₹ 10,000/- per month. Further, the appellant has admitted that he had received 240 Kgs. of Ketamine Hydrochloride at Chennai from one Subhu Khan @ Bansilal, a Malaysian national who sent Ambalavanan of Mudukku Meendan Patti, Nallatinputhur to receive at Tuticorin and was included in the seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ketamine Hydrochloride. He has relied upon the decision of the jurisdictional High Court in the case of M. Buhari (supra) to argue that Ketamine Hydrochloride is different from Ketamine. In para 6 to 8, the said issue is discussed in detail, which is as under:- 6. In this context, it is relevant to mention that we have already held in our order in HCP Nos. 1303 and 1306 of 2009 dated 18.6.2010 that pure Ketamine is available in powder formand Ketamine Hydrochloride, which is also in powder form, is an organic compound of Ketamine, different from pure Ketamine . In view of the same and in the light of the view expressed by the earlier Division Benches of this Court in (1) N.K.Jawahar Ali and Others Vs. The State of Tamilnadu, rep. by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said repot and the explanatory note 1 and 2, it is quite obvious that Ketamine Hydrochloride is different from Ketamine. It is also obvious that Ketamine Hydrochloride is not covered under the NDPS Act, 1985. A reading of the said notice in conjunction with the Notification referred to supra, will make it obvious that for exporting Ketamine alone, a no objection certificate from the Narcotics Commissioner is needed and for exporting Ketamine Hydrochloride no such No Objection Certificate‟ is needed. Therefore, we are convinced with the tenability of the contention raised on behalf of the petitioner that the observation of the Detaining Authority that the petitioner / detenu was indulging in smuggling of Ketamine through carriers muc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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