SYED ALAM Vs. STATE OF ASSAM

JUDGEMENT

(1.) A sub-Inspector of police, Criminal Investigation Department (for short, 'CID'), Assam, lodged, on 01.12 .2009, a First Information Report with the Officer-in-Charge, CID Police Station, Assam, alleging, inter alia, thus: Acting on a secret information, the informant, along with his team of officials, on 30.11 .2009, at 2.40 p.m., conducted search of a night super bus parked at Lalong Gaon, Lokhra, near National Highway 37, in presence of its driver, Lairenlakpam Thoiba Singh, its handyman, Azmeer Hussain, and some witnesses. On the search, so conducted, 31,298 (thirty-one thousand two hundred and ninety-eight) numbers of Spasmo Proxyvon capsules were found kept concealed in two secret chambers specially made inside the bus. The said capsules were accordingly seized and, on a query made by the informant, the driver and handyman failed to produce any document authorizing them to carry the said capsules.

(2.) Based on the information, so lodged, CID Police Station Case No. 31/2009 under Sections 380/411 IPC read with Section 22(c)/29 of the Narcotic Drugs and Psychotropic substances Act (in short, 'the NDPS Act') was registered. The samples were sent to Forensic Science Laboratory (for short, 'the FSL'), which reported that the chemical examination of the samples gave positive test for pro-poxyphene and the amount of pro-poxyphene was found to be 497.50 m.g. and 479.91 m.g . respectively. On completion of investigation, charge-sheet was laid and the case has come to be registered as Sessions (Special) Case No. 375/2009. By order, dated 05.05.2010, learned Additional Sessions Judge, Kamrup, has fixed the case for consideration of charge.

(3.) Challenging the legality and maintainability of the registration of the case under the provisions of the NDPS Act by the prosecution, the present application, under Section 482 Code of Criminal Procedure, has been made for quashing of the penal provisions of the NDPS Act, whereunder the case has been registered, on the ground that possession of spasmo proxyvon capsule or transportation thereof can, at best, be an offence under the Drugs and Cosmetics Act, 1940, but cannot be an offence under the NDPS Act.