Bombay HC refuses to quash FIR against Director of International Pharma Trader Co. for non-compliance with NDPS provisions

Bombay High Court: The applicant sought the quashing of FIR registered against him for the offences punishable under Sections 9(A), 25(A), 29, and 59 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”). The applicant was a director of a pharmaceutical import-export company (“Company”), who was implicated for having exported controlled substances in violation of the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 2013 (“NDPS Order”). It was contended by the applicant that he was not informed of the NDPS Order since the respective agencies had failed to publish the same on their websites. The Division Bench of A.S. Gadkari and Dr. Neela Gokhale*, JJ., was faced with a question, whether the ignorance of a Notification published in the Gazette can be a defence to justify quashing of FIR, holding that no cognizable offence is prima facie made out from a plain reading of the FIR? The Court held that the allegations contained in the FIR against the applicant, if taken on their face value, did prima facie disclose the commission of a cognizable offence. The Court viewed that the factual matrix of the case could be adjudged by the Trial Court as it was not within the instant Court’s purview, while examining an application for quashing of FIR, to conduct a mini trial to ascertain the facts of the case.

Background

The complaint revealed that another company called Sam Fine O Chem Ltd., a chemical manufacturer, had exported a controlled substance to one Italian company. The respondent submitted that Sam Fine O Chem Ltd. manufactured 1000 kgs of the controlled substance and delivered the same to the applicant’s company, who in-turn exported the same to an Italian Company.

The respondent’s case was that the controlled substance was a Serial 19 under Schedule B of the NDPS Order, the export of which required a ‘No-Objection Certificate’ (“NOC”) from the Narcotics Commissioner. The controlled substance was added to the NDPS Order through Government Notification GSR 186(E) (“Notification”), dated 27-02-2018, published in the Gazette of India (“Gazette”) on 06-03-2018. The respondent further submitted that none of the Customs officials had objected to this export without NOC and failed to verify adherence with the NDPS Act.

Issue

Whether the ignorance of a Notification published in the Gazette can be a defence to justify quashing of FIR, holding that no cognizable offence is prima facie made out from a plain reading of the FIR?

Court’s analysis and judgment

The Court perused Section 79¹ of the Penal Code, 1860 (“IPC”), that provides, that nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by a mistake of law, in good faith, believes himself to be justified by law in doing it.

The Court referred to State of Maharashtra v. Mayer Hans George, 1964 SCC OnLine SC 53, wherein it was held by the Supreme Court, “it is obvious for an Indian law to operate and be effective in the territory of India; it is not necessary that it should either be published or be made known outside the country…In most Indian statutes, there is a provision for the publishing in the Official Gazette.”

The Court reiterated an essential principle of jurisprudence-’ignorance of law is no excuse for breaking it’; the law enforcement machinery would come to a grinding halt, if ignorance was accepted as a defence.

The Court, while referring to the Supreme Court decision of State of W.B. v. Administrator, Howrah Municipality, (1972) 1 SCC 366, stated that a company engaged in the business of export-import of pharmaceutical products and allied substances, could not be believed to be ignorant of the rules and regulations governing their business. The applicant is a regular purchaser of chemicals from manufacturers, such as Sam Fine O Chem Ltd. The Court noted that the Company was incorporated in 2012, and the applicant had been a director since its inception. Therefore, he must be aware of the dynamics of the business since 2012, and the apprising and updating with the continuous developments in the export-import legislations must be a regular activity of the Company. Hence, the applicant could not justify the omission to comply with the requirements of exports.

The Court rejected the applicant’s contention that he was unaware of the Notification, since the Risk Management Centre for Customs (“RMCC”), or the Export Promotion Council of India (“EPCI”) had failed to update the same on their website. The Court noted that EPCI is merely a facilitator in promoting exports of pharmaceutical products, and the RMCC is a facilitator for the Customs officials in the enhancement of security; the non-provision of the Notification by EPCI or RMCC was not a justification for the applicant’s failure of compliance.

The Court referred to Pankaj Jain Agencies v. Union of India, (1994) 5 SCC 198, wherein the Supreme Court rejected the contention of the petitioner that, notwithstanding the publication in the Gazette, there was yet a failure to make the law known, and therefore it was not operable or enforceable. The Court in that case reiterated the views adopted in an earlier decision of B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658, “where a law demands compliance, those that are governed by it must be notified directly and reliably of the law and all changes and additions made to it by various processes”. The Court further stated in that case, “subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitaries. Therefore, it is necessary that subordinate legislation must be published and promulgated in some suitable manner. It will then take effect from the date of such publication and promulgation.”

The instant Court highlighted that the NDPS Act specified the provisions of the Act shall come into force on such date as the Central Government may by Notification in the Gazette appoint. Accordingly, the Amendment to the NDPS Order was brought by a Notification which was published in the Gazette. Therefore, the manner of taking effect as prescribed by the NDPS Act was followed. Hence, the negligence or omission of the applicant to update himself about the applicable law to his business activity was not an excuse for non-compliance.

The Court also referred to State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, wherein the parameters of quashing an FIR were well-settled by the Supreme Court. After perusing the same, the Court held that the allegations contained in the FIR against the applicant, if taken on their face value, did prima facie disclose the commission of a cognizable offence.

The Court lastly referred to Priyanka Jaiswal v. State of Jharkhand, 2024 SCC OnLine SC 685, wherein the Supreme Court observed that at the time of examining the prayer for quashing of criminal proceedings, the Court can neither conduct a mini trial nor appreciate the evidence of a particular case. Therefore, considering Priyanka Jaiswal (supra), the Court viewed that the applicant’s defence of failure in updating of the Notification by the facilitators on their websites, a deliberate omission by the Customs officials in failing to verify compliance by the exports, and a genuine lapse to update the Notification on the websites, etc., could be tested before the Trial Court. Therefore, the Court was not inclined to quash the FIR against the applicant.

At the stage of pronouncement, the applicant submitted his intention to challenge the instant judgment before the Supreme Court and requested the continuation of the ad interim order of non-filing of a chargesheet against him, granted in his favour on 13-03-2023, for a period of four weeks from the date of the pronouncement of the judgment. The Court, considering the important question of law involved, deemed it appropriate to continue the ad interim relief as requested by the applicant.

[Ajay Melwani v. State of Maharashtra, 2024 SCC OnLine Bom 2311, decided on 22-07-2024]

*Judgment authored by: Dr. Justice Neela Gokhale

Advocates who appeared in this case :

For the applicant: Rajiv Patil, Senior Advocate; Sameer Singh, Advocate i/b Kisan Choudhary

For the respondent: Ashish I. Satpute, APP

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