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.
-----------------------
8
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.
-----------------------
8
