Negligence Of Person To Update Himself Regarding Applicable Law To His Business Activity Is Not An Excuse For Non-Compliance: Bombay HC

The Bombay High Court observed that the negligence of a person in updating himself regarding the applicable law to his business activity is not an excuse for non-compliance.

The Court observed thus in a criminal application filed by a businessman seeking quashing of FIR registered against him with the Anti-Drug Department for offences punishable under Sections 9(A), 25(A), 29, and 59 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

A Division Bench of Justice A.S. Gadkari and Justice Neela Gokhale remarked, “Admittedly, Section 1(3) of the NDPS Act specifies that the Act shall come into force on such date as the Central Government may, by Notification in the Official Gazette appoint and different dates may be appointed for different provisions of this Act. Amendment to the NDPS Order was brought about by Notification dated 27th February 2018 and was published in Government Gazette on 6th March 2018 by the Ministry of Finance. Thus, the parent statute, i.e., the NDPS Act itself prescribed the manner in which provisions will take effect. The manner as specified is followed and the Notification is published in the Official Gazette. 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.”

Senior Advocate Rajiv Patil appeared on behalf of the applicant while APP Ashish Satpute appeared on behalf of the respondent.

Factual Background -

The applicant was the director of a company called Vivalavita Pharmaceuticals Pvt. Ltd. An FIR was registered based on a complaint by the Assistant Police Inspector of the Anti-Narcotics Cell, revealing that one Sam Fine O Chem Ltd., a company engaged in the manufacture of chemicals, had exported a controlled substance having name of N-Phenethyl-4 Piperidone to one Italian company namely, Camberex Profarnacomilano S.R.L. As per the respondent’s case, the said chemical was a contraband substance falling under Schedule (B) at Serial 19 of the NDPS (Regulation of Controlled Substances) Order, 2013, the export of which required ‘no objection certificate’ from the Narcotics Commissioner.

It was stated that by a government notification in 2018, the said chemical was added in Schedule B of the NDPS Order. According to the respondent, Sam Fine manufactured 1,000 kgs of the said chemical and delivered the same to Vivalavita through a transport company and stored it in Punjab State Containers and Warehousing, JNTP, Maharashtra. None of the Customs Officials objected to this export without the NOC and they failed to verify adherence to the said compliance under the NDPS Act. The exporting companies as well as the officers concerned of the Customs Department allegedly committed the said offences under the NDPS Act and accordingly, the FIR was registered.

The High Court in the above context of the case said, “The only question that arises for our consideration is whether ignorance of notification published in the Government Gazette be a defence sufficient enough to justify quashing of F.I.R. by holding that no cognizable offence is prima facie made out from a plain reading of the FIR. … Section 79 of the Indian Penal Code (‘IPC’) 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 reason of a mistake of law in good faith, believes himself to be justified by law in doing it. It is settled legal position that ignorance of law is no defence to a criminal charge.”

The Court noted that ‘ignorance of law is no excuse for breaking it’ is one of the essential principles of jurisprudence and 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”, it added.

Furthermore, the Court elucidated that the NDPS Act itself is publicised widely and notwithstanding the fact that the Notification is a delegated legislation and not publicised as much as a statute enacted in the Parliament, 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 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 23rd February 2012 and the Applicant is a director from its inception. 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 thereof must obviously be regular activity of the company and its officials”, it emphasised.

The Court also said that the Applicant cannot justify the omission to comply with the requirements of exports on the pretext that the RMCC or the Export Promotion Council of India - (Pharmexcil) failed to update the Notification on its own website.

“The defence of the Applicant pertaining to failure of the RMCC to update the Notification on its website, a deliberate omission of the Customs Officials in failing to verify compliance by exporters and/or a genuine lapse of officials to update the Notification on the RMCC website, etc., can be tested before the trial Court. 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”, it concluded.

Accordingly, the High Court dismissed the criminal application.

Cause Title- Ajay Melwani v. The State of Maharashtra (Neutral Citation: 2024:BHC-AS:28748-DB)

Appearance:

Applicant: Senior Advocate Rajiv Patil, Advocates Sameer Singh, and Kisan Choudhary.

Respondent: APP Ashish Satpute

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