TMI Blog2023 (12) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... seals kept in the Court letter and in the memo. It is further reported that the samples are in the form of brown coloured powder. It answers the test for the presence of Diacetyl morphine (Heroin) and is covered under N.D.P.S. Act, 1985. In so far as the sanction is concerned, no sanction is required to prosecute the accused for the offences under NDPS Act. In so far as the Customs Act is concerned, the Principal Commissioner of Customs had accorded sanction to prosecute the accused for the offence under Section 135 of Customs Act. The petitioner is prosecuted for the offence under Section 135 of Customs Act and not for the offence under Section 132 of Customs Act. Further there is typographical error, instead of Section 9(c) of NDPS Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so the same. The said box contained two books and on scrutinizing the books, it was found that cavities were made inside the books by removing the inner portion of the pages, leaving the pages, wherein four packets wrapped in carbon paper. It was found to be heroin and the same has been attempted to be smuggled out of India by concealing the same inside the books in contravention of the Customs Act, 1962 and N.D.P.S. Act, 1985. After investigation and after accorded sanction, the respondent has filed complaint for the offences U/s.8(c) of NDPS ACT and sections 21, 23, 28 and 29 of NDPS Act, 1985 r/w Sections 132 and 135 of the Customs Act, 1962 . 4. The learned counsel appearing for the petitioner would submit that the petitioner is arra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st was conducted using Field Test Kit, and it tested positive for Heroin. The contraband was seized on 01.07.2011, whereas it was sent for analysis only on 07.07.2011. As per the provision, it has to be sent within a period of 72 hours. The Analysist namely The Assistant Chemical Engineer has reported that the sample is in the form of brown coloured powder and it answers the tests for the presence of Diacetyl Morphine (Heroin) and is covered under NDPS Act, 1985. Weight of remnant sample along with plastic cover returned is 4.7 grams. However, the quantitative analysis of the sample could not be carried out as the instrument is not in working condition. Therefore, admittedly, the quantitative analysis of the sample was not done even as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative . 6. In the case on hand, there were only four packets. All are contraband. The samples were drawn from one packet only. Therefore, it can be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rphine (Heroin) and is covered under N.D.P.S. Act, 1985. 10. In so far as the sanction is concerned, no sanction is required to prosecute the accused for the offences under NDPS Act. In so far as the Customs Act is concerned, the Principal Commissioner of Customs had accorded sanction to prosecute the accused for the offence under Section 135 of Customs Act. The petitioner is prosecuted for the offence under Section 135 of Customs Act and not for the offence under Section 132 of Customs Act. Further there is typographical error, instead of Section 9(c) of NDPS Act, it has been typed as Section 8(c) of NDPS Act in the complaint and it is nothing but a curable defect and it is not a ground for quashing the proceedings as against the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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