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2016 DIGILAW 699 (GAU)

Santosh Kumar Toshniwal v. Union of India

2016-07-29

A.K.GOSWAMI

body2016
JUDGMENT AND ORDER : A.K. Goswami, J. Heard Mr. M. Mukherji, learned Senior counsel, appearing for the petitioner. Also heard Mr. B. Sarma, learned Standing counsel, Customs, appearing for the respondents. 2. The challenge made in this writ petition is the issuance of two summonses to the petitioner, dated 13.07.2016 and 21.07.2016, under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), by the Assistant Commissioner, Customs, Guwahati, for investigation in connection with Seizure Case No. 04/CL/NDPS/CL/CUS/P7I/SLG/2014-15 dated 11.01.2015, and C.R. (NDPS) Case No. 2/2015, pending in the Court of Special Court (NDPS) Act, Siliguri. 3. Mr. Mukherji has submitted that after submission of complaint before the Court of the learned Special Judge, NDPS Act, Siliguri, and upon completion of enquiry/investigation, there is no authority on the part of the Assistant Commissioner, Customs, Guwahati, to issue summons again in connection with the same case in absence of any order passed by the learned NDPS Court, Siliguri, under Section 173(8) CrPC and, therefore, the two summonses issued by the Assistant Commissioner, Customs, Guwahati, are palpably illegal, arbitrary and without jurisdiction. 4. Mr. B. Sarma has submitted that no enquiry having been pending in connection with Seizure Case No. 04/CL/NDPS/CL/CUS/P7I/SLG/2014-15 dated 11.01.2015, and the complaint having already been filed and registered as C.R. (NDPS) Case No. 2/2015, the summonses issued may not be in accordance with law. 5. Section 67 of the NDPS Act authorizes any officer referred to in Section 42, who is empowered in that behalf by the Central Government or a State Government, (i) to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act or any Rule or Order made thereunder; (ii) to require any person to produce or deliver any document or thing useful or relevant to the enquiry, and (iii) to examine any person acquainted with the facts and circumstances of the case, during the course of enquiry in connection with contravention of any provision of the Act. Thus, the officer empowered in law can exercise powers under Section 67 of the NDPS Act only during the course of any enquiry in connection with the contravention of any provisions of the NDPS Act. Thus, the officer empowered in law can exercise powers under Section 67 of the NDPS Act only during the course of any enquiry in connection with the contravention of any provisions of the NDPS Act. In other words, the condition precedent for invocation of power under Section 67 of the NDPS Act is pendency of an enquiry in connection with contravention of any provision of the Act. 6. A complaint petition having already been filed and registered C.R. (NDPS) Case No. 2/2015 in connection with Seizure Case No. 04/CL/NDPS/CL/CUS/P7I/SLG/2014-15 dated 11.01.2015, and there being no enquiry pending, recourse could not have been taken, in the facts and circumstances of the case, to Section 67 of the NDPS Act to issue summons to the petitioner. 7. In that view of the matter, the two summonses dated 13.07.2016 and 21.07.2016, issued by the Assistant Commissioner, Customs, Guwahati, to the petitioner under Section 67 of the NDPS Act in connection with Seizure Case No. 04/CL/NDPS/CL/CUS/P7I/SLG/2014-15 dated 11.01.2015 are quashed. 8. Accordingly, the Writ petition stands allowed. No cost.