SUPRINTENDENT OF CUSTOMS Vs. MOHD YOUNIS ALIAS AHMED

JUDGEMENT

(1.) This is an appeal against acquittal of the accused/Respondent recorded by the Metropolitan Sessions Judge, Hyderabad in Sessions Case No. 511 of 2004 by judgment dated 23.08.2005 finding the accused/Respondent not guilty of the charges under Sections 21(c), 22(c) and 23(c)/28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). It is the prosecution case that on 27.06.2004, the prosecution agency viz., Customs Air Intelligence Unit intercepted the accused after he completed immigration, customs and security checks in Rajiv Gandhi International Air Port, Hyderabad while the accused was holding his passport boarding pass and air ticket for boarding into flight No. EK 525 to go to Dubai and that officers of Customs Air Intelligence Unit detached baggage slips from boarding pass of the accused and got the baggages unloaded from the air craft and those baggages were identified as his baggages and that baggage of the accused contained Bunogesic and Buprigesic injections numbering 9,850 and 11,975 respectively in vial form in them. The officers seized the baggage etc., including the above injection vials under the cover of mediators' report in the presence of witnesses and the accused. They also arrested the accused. During seizure, they prepared 24 samples of the contraband. During investigation, statement of the accused was also recorded under Section 67 of the Act. After getting contents of the seized contraband as containing prohibited substance as per the Act, the prosecution was launched against the accused.

(2.) The lower Court in its judgment framed the following five points for consideration:

(3.) In this appeal the Special Public Prosecutor placing reliance on Kanhaiyalal v. Union of India, 2008 AIR(SC) 1044 of the Supreme Court contended that Ex.P-131 statement of the accused recorded by the investigating officer is legal evidence under Section 67 of the Act and that the said statement itself is sufficient for the lower Court to record conviction against the accused for the above charges. No doubt, the Supreme Court held that conviction can be maintained solely on the basis of a confession statement made under Section 67 of the Act. But, before recording the said conviction on the basis of statement of the accused under Section 67 of the Act, it has to be seen whether the substance seized by the investigating agency was manufactured drug or contained any psychotropic substance. The lower Court came to the conclusion basing on evidence of the experts P.Ws 16, 18 and 19 that the substances seized from M.Os 1 to 4 baggage viz., the injections do not contain any psychotropic substance in the sence that they do not contain the compound with the chemical name described as item No. 92 of the schedule to the Act. The schedule to the Act gives list of psychotropic substances. Item 92 of the schedule reads as follows: