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Friday, April 17, 2015

On 17.01.2014 the goods were seized at the instance of the Narcotics Commissioner apparently on the ground that the same have been imported without proper NoC and a FIR was also lodged. It is in these circumstances that the petitioners had instituted the writ proceeding (Writ Petition No. 900 of 2014) before the Bombay High Court out of which the present special leave petition has arisen. While the writ petition remained pending a letter dated 14.03.2014 from the Central Bureau of Narcotics was received by the petitioner communicating the following decision: "2. In this context, it is to inform you that you have imported 79.20 MT Methyl Ethyl Ketone into India without a No Objection Certificate from the Narcotics Commissioner. This is in violation of Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 2013. 3. Hence No Objection Certificate for import of 79.20 MT Methyl Ethyl Ketone from Taiwan against your letter dated 18/10/2013, received in this office on 30/10/2013 cannot be issued as the said material was already imported into India by your firm on 12/08/2013."

                               NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                SPECIAL LEAVE PETITION (C) NO. 15814 OF 2014


CONTROL PRINT LIMITED & ANR.            ...    PETITIONER(S)

                                   VERSUS

NARCOTICS CONTROL BUREAU & ORS.         ...  RESPONDENT (S)




                               J U D G M E N T


RANJAN GOGOI, J.

1.     The first petitioner is a  company  registered  under  the  Companies
Act, 1956.  It is, inter alia, engaged in the  business  of  manufacture  of
coding and marking machines and  consumables  like  inks  and  solvents  for
inkjet printing machines.  Amongst others, Methyl Ethyl Ketone (MEK) is  one
of the raw materials used by  the  first  petitioner  in  its  manufacturing
process.

2.     Under  the  provisions  of  the  Narcotic  Drugs   and   Psychotropic
Substances (Regulation of Controlled Substances)  Order,  2013  (hereinafter
referred  to  as  'the  Regulations')  the  petitioners  had  submitted   an
application in form 'K' for grant of  No  Objection  Certificate  (NoC)  for
import of 79.2 metric tonnes of MEK.  The said application  dated  27.7.2013
was submitted to the Narcotics Commissioner,  Gwalior  on  07.08.2013.   The
goods i.e. MEK in 480 drums were dispatched from  Taiwan  on  27.07.2013  by
vessel Zimdjibouti with the port of destination shown as  Nhava  Sheva  Port
India.  The ship  arrived  at  Nhava  Sheva  Port,  Thane,  Navi  Mumbai  on
12.08.2013. At the  request  of  the  petitioners  the  Customs  authorities
permitted lodgment of the goods in  the  customs  bonded  warehouse.   By  a
letter dated 23.8.2013 of the Central Bureau  of  Narcotics  issued  to  the
petitioners (dispatched on 26.9.2013 according to the  petitioners)  further
information/clarification from the petitioners was sought in the matter  for
grant of NoC.  According to the petitioners, it received the said letter  on
08.10.2013 and by reply  dated  18.10.2013  the  requisite  information  was
supplied alongwith the further information that the goods had  been  shipped
on 27.07.2013 and had landed at the   Jawaharlal  Nehru  Port  Trust  -Nhava
Sheva Port, Thane, Navi Mumbai on 12.08.2013 and were "awaiting for  customs
clearance purposes."   Thereafter,  on  29.11.2013  the  Central  Bureau  of
Narcotics informed the petitioners that "the matter has been taken  up  with
the Commissioner of Customs (Import), Nhava Sheva to  ascertain  the  status
of the material."  Eventually, on 11.12.2013  the  Commissioner  of  Customs
(Import) informed the office of the  Narcotics  Commissioner,  Gwalior  that
the  goods  have  been  lodged  in  the  customs  bonded  warehouse  pending
clearance from the Central Bureau of Narcotics.   On  17.01.2014  the  goods
were seized at the instance of the Narcotics Commissioner apparently on  the
ground that the same have been imported without proper NoC  and  a  FIR  was
also lodged.   It  is  in  these  circumstances  that  the  petitioners  had
instituted the writ proceeding (Writ Petition No. 900 of  2014)  before  the
Bombay High Court out of  which  the  present  special  leave  petition  has
arisen.  While the writ petition remained pending a letter dated  14.03.2014
from the  Central  Bureau  of  Narcotics  was  received  by  the  petitioner
communicating the following decision:

"2.   In this context, it is to inform you that you have imported  79.20  MT
Methyl Ethyl Ketone into India without a No Objection Certificate  from  the
Narcotics  Commissioner.   This  is  in  violation  of  Narcotic  Drugs  and
Psychotropic Substances (Regulation of Controlled Substances) Order, 2013.

3.    Hence No Objection Certificate for import of  79.20  MT  Methyl  Ethyl
Ketone from Taiwan against your letter dated 18/10/2013,  received  in  this
office on 30/10/2013 cannot be issued  as  the  said  material  was  already
imported into India by your firm on 12/08/2013."


 3.   The petitioner sought an amendment to the writ petition  to  challenge
the said decision contained in the letter dated  14.03.2014.  The  amendment
sought was allowed.   By the impugned order dated 30.04.2014 the High  Court
has dismissed the writ petition on the ground that  the  petitioner,  though
aware of the Notification dated 26.03.2013 promulgating the  Regulations  in
question, had imported the goods into India without the requisite NoC.   The
additional ground on which the High Court thought it proper  to  reject  the
writ petition was that a FIR has been filed and  under  Section  63  of  the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for  short
'the Act') it is the criminal court which should be  moved  for  release  of
the goods seized under the Act.

4.    We have heard Shri  F.S.  Nariman,  learned  senior  counsel  for  the
petitioners and Shri Ranjit Kumar, learned Solicitor General  appearing  for
the respondents.

5.    Shri Nariman has urged that Clause 11 of the Regulations in  question,
particularly, sub-clauses (1) to (3) read  together  does  not  contain  any
express prohibition on import of a controlled  substance  pending  grant  of
NoC by the competent authority.  It is further urged that  under  sub-clause
(3) of Clause 11 of the Regulations if NoC is not  granted  within  21  days
from the date of application such grant may be deemed  to  have  been  made.
According to Shri Nariman, the application in  Form  K  is  required  to  be
accompanied by any document of the description mentioned  therein  in  order
to show that there is a prior commitment of availability of  the  controlled
substance for import into  India.  It  is  further  urged  that  though  the
respondents were made aware of the fact that the goods have  landed  in  the
port of destination within India on 12.08.2013 and at  that  point  of  time
the application for NoC was still under consideration, the  respondents  did
not  take  any  coercive  action  and  instead  continued  to  process   the
application filed by the petitioners for grant of  NoC.   Shri  Nariman  has
also urged that the respondents had seized the goods on 17.01.2014 at  which
point of time no decision on the grant or refusal of NoC had been made.  The
rejection/refusal came subsequently i.e. on 14.03.2014.   According to  Shri
Nariman, the goods having been seized on 17.01.2014  the  rejection  of  the
application for NoC was a fait accompli. There was no option but to  reject.
Hence the rejection is not a fair action on the part of the State.

6.    In reply Shri Ranjit Kumar, learned Solicitor General has  urged  that
under  the  Regulations  in  force  import  into  India  of  any  controlled
substance requires grant of prior NoC  by  the  competent  authority  which,
admittedly, was not granted in the  present  case.  In  such  circumstances,
violation of the Regulations and consequential infringement of the  relevant
provisions of the Act is ex facie apparent.   The order of the  High  Court,
therefore, according to the learned Solicitor General, would  not  call  for
any interference.

7.    Whether under Clause 11 of the Regulations no import of
a controlled substance is permissible without a NoC being granted;

Whether absence of refusal to grant the NoC would amount to a  deemed  grant
on the expiry of 21 days of the making of the application in Form K;

Whether the failure  of  the  respondents  to  take  timely  coercive  steps
(seizure etc.) despite knowledge of  the  landing  of  the  goods  in  India
though the NoC was yet to be granted  reflect  their  understanding  of  the
purport and effect of Clause 11 of the Regulations;

Whether the above should lead to grant of post import  NoC  in  the  present
case and whether grant of such NoC is consistent with the Regulations;

Whether the seizure of the goods made on 17.1.2014 when the application  for
grant of NoC was yet to be finalized is contrary to the  provisions  of  the
NDPS Act read with the Regulations in force;

Whether   the  rejection of the application for grant of  NOC     on    14th
March,  2014 was  a    fait   accompli     in view of  the seizure   already
made and therefore an unacceptable exercise  of  State power;

are the multi faceted issues that arise for  consideration  in  the  present
case.

8.     Should we answer the  questions  indicated  above.   Though  we  feel
tempted we must refrain. Legal issues need not, nay, should not be  answered
merely because they have arisen in a given case. The cognate facts must  not
be ignored. In the present case, as found  by  the  High  Court,  a  FIR  in
respect of the import made by the petitioners without grant of the  NOC  had
been lodged and was pending. What had really happened is that on  17.1.2014,
after the seizure was made,  the  officer  who  had  seized  the  controlled
substance in question  submitted  a  report  to  his  superior  officer,  as
required under Section 57 of the NDPS Act. On 18.1.2014,  after  receipt  of
the report of the seizing  officer,  the  Assistant  Narcotics  Commissioner
(Prevention) Gwalior appended on the said report a note to the  effect  that
Crime Case No.1/2014 is registered in the Headquarter  Office,  Gwalior  and
the Seizing Officer was authorized to investigate  the  matter  and  file  a
complaint before the Competent Court, after completion of investigation,  if
required. Thereafter it appears, an investigation was  carried  out  and  on
14.8.2014 a complaint under Section 36A(1)(d) of  the  NDPS  Act  was  filed
before the Special Judge  (NDPS  Act  cases),  Ali  Baug,  District  Raigad,
Maharashtra for alleged violation of Sections 25A and 38 of the NDPS Act  by
one Basant Kalra, Managing Director of  the  First  petitioner  Company  for
importing the controlled substance in question  without  obtaining  the  NOC
required under the Regulations  in  force.  By  order  dated  22.8.2014  the
learned Special Judge has taken cognizance of the offence  alleged  and  has
issued process. The said proceeding  must  be  understood  to  be  presently
pending before the trial court in the absence of any  contrary  material  or
submission on the part of the petitioners.

9.    The issues raised by the petitioners are not merely  related  but  are
directly in question in the criminal proceeding pending in  respect  of  the
same subject matter. If that is so, this Court must not answer  any  of  the
said questions, particularly,  in  the  absence  of  any  challenge  to  the
legality and validity of the criminal proceeding  before  this  Court  which
can arise only out of an order of the forum competent in  law  to  hear  and
consider such a challenge.  From the materials on record it does not  appear
that any such challenge has been made till date by the petitioners.

10.   In the above circumstances, we are  of  the  view  that  it  would  be
appropriate for us to refrain from addressing any of the  issues  raised  by
and on behalf of the rival parties and instead leave  the  petitioners  with
the remedy of taking such appropriate  steps  in  the  criminal  proceeding,
including release of the goods pending trial, as it may be advised.

11.   The special leave petition is consequently disposed of  in  the  above
terms.

                         .....................................J.
                                              [RANJAN GOGOI]



                                     .....................................J.
                                              [N.V. RAMANA]

NEW DELHI,
APRIL 16, 2015.

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