Company, Its Officials Must Update Themselves With Ever-Changing Laws, Ignorance Not An Excuse For Breaking It: Bombay High Court

A division bench of Justices Ajay Gadkari and Dr Neela Gokhale refused to quash an FIR lodged against one Ajay Melwani, who was booked under relevant provisions of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, for exporting a banned chemical to a company based in Italy. The bench while dismissing his plea, even refused to accept his argument that he was unaware of the notification issued by the Indian Government mandating a 'no objection certificate' for permitting export or production of the said product.

Commenting on his defence the bench said that ignorance of law is no excuse for breaking it, is one of the essential principles of jurisprudence.

"The rationale behind this principle is that if ignorance was an excuse, every person who is charged for any offence or involved in a crime would merely claim that he was unaware of the law in question in order to avoid liability, even though he was well aware of the consequences of breaking the law. The law enforcement machinery shall come to a grinding halt if ignorance is accepted as a defence. It can also lead to mishandling of law on the part of law breakers and this can never be the intention of Legislature to protect the law breakers by providing a shield of ignorance," the bench said.

The bench pointed out that the notification in question was issued way back in February 27, 2018. It said that though the said notification was not uploaded by the Narcotics Control Bureau (NCB) on its official website yet the chemical being exported by the company of the accused, was banned as per provisions of the NDPS Act.

"....nevertheless a company engaged in the business of export-import of pharmaceutical products and allied substances cannot be believed to be ignorant of the rules and regulations governing the said business," the bench said.

Further, the bench noted that the Applicant is a regular purchaser of chemicals from manufacturing companies such as Sam Fine O Chem Ltd. The information available on the Ministry of Corporate Affairs Website clearly shows that the company is incorporated on February 23, 2012 and the Applicant is director from its inception, the court noted. .

"Thus, he is aware of the dynamics of the business since 2012. Apprising and updating himself with the ever-changing developments in the export import legislations and rules and regulations there of must obviously be regular activity of the company and its officials," the judges opined.

The Applicant, the judges held cannot justify the omission to comply with the requirements of exports on the pretext that the Export Promotion Council of India – (Pharmexcil) failed to update the Notification on its own website.

"The Export Promotion Council is merely a facilitator in promoting exports of the pharmaceutical products. Similarly, the RMCC is an IT driven system with the primary object to strike an optimal balance between facilitation and enforcement and to promote a culture of self compliance in custom clearance. It is in fact a facilitator for the custom officials to assist in enhancing security by focusing efforts on 'high risk imports and detecting dangerous, prohibited or restricting goods. This perhaps may be a defence that may shield the Customs Officials but does not justify the Applicant failure of non-compliance of the provisions of the NDPS Act," the bench observed.

The negligence or omission of the Applicant to update himself regarding applicable law for the time being in force, to his business activity is not an excuse for non-compliance, the bench added.

The bench, therefore, held that at the present stage, the defence taken by the applicant can't considered as the appropriate stage to deal with the contention would be the trial stage.

'We are of the view that the allegations in the FIR taken at their face value prima facie discloses commission of a cognizable offence. We are thus not inclined to exercise our inherent powers under Section 482 of the Code of Criminal Procedure, 1973 to quash the FIR," the judge concluded.

According to the petition, the Azad Maidan Unit of the Crime Branch of Mumbai Police lodged the impugned FIR stating that a company called Sam Fine K Chem Ltd. engaged in manufacture of chemicals had exported a controlled substance - Phenethyl – 4 Piperidone, to one Italian Company namely, Camberex Profarnacomilano SRL.

The prosecution stated that the said substance is a schedule B category contraband under the Narcotics Drugs & Psychotropic Substances (Regulation of Controlled Substances) Order, 2013 export of which requires the 'no objection certificate' of the Narcotics Commissioner.

The Petitioner before the bench had contended that he was unaware of the said rule of obtaining an NOC from the Narcotics Commissioner.

Appearance:

Senior Advocate Rajeev Patil along with Advocates Sameer Singh and Kisan Chaudhary appeared for the Petitioner.

Assistant Public Prosecutor Ashish Satpute represented the State.

Case Details: Ajay Melwani vs State of Maharashtra (Criminal Application 578 of 2021)

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