IMPORTANT POINT
Ignorance of law is not a defense against criminal charges, and individuals must comply with statutory requirements, particularly in regulated industries such as pharmaceuticals.

JUDGMENT :

Neela Gokhale, J.

1. The Applicant seeks quashing of F.I.R No. 48 of 2019 qua him dated 11th July 2019 registered with the Anti Drug Department, Azad Maidan Unit, Crime Branch, Mumbai for offences punishable under Sections 9(A), 25 (A),29 and 59 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act').

2. Record reveals that, an Order dated 13th March 2023 passed by this Court, notice was issued to the State of Maharashtra. The investigation was allowed to continue but the Investigating Agency was restrained from filing the charge sheet qua the Applicant. By an Order dated 11th September 2023, the Application was admitted.

3. Brief facts of the case:-

3.1 The Applicant is alleged to be a director in the company called Vivalavita Pharmaceuticals Pvt. Ltd. and the Respondent is the State of Maharashtra through its Anti Narcotics Cell.

3.2 FIR was registered on a complaint of Mr. Prashant Dilip More, Assistant Police Inspector of the Anti Narcotics Cell, Azad Maidan Unit, Crime Branch, CID, Mumbai. It reveals 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 ('said chemical') to one Italian Company namely, Camberex Profarnacomilano S.R.L. It is the case of the Respondent that N-Phenethyl-4 Piperidone is a contraband substance, which falls under Schedule (B) at Serial 19 of the Narcotics Drugs & Psychotropic Substances (Regulation of Controlled Substances) Order, 2013 (The NDPS Order) export of which requires the 'no objection' certificate of the Narcotics Commissioner.

3.3 It is stated that, by Government Notification GSR 186 (E) dated 27th February 2018, the said chemical was added in Schedule 'B' of the NDPS Order. According to the Respondent, Sam Fine O Chem Ltd. 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. The material was exported by the Applicant's company to ERRE GIERRE SPA, a company in Italy through Houston Shipping Company in its Ship No.1821 W. It is the case of the Respondent that, the said chemical was exported by Sam Fine O Chem, the Vivalavita Pharmaceuticals Pvt. Ltd. and other companies, without a 'No Objection' certificate from the Narcotics Commissioner as required under the NDPS Act. None of the Customs Officials had 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 thus committed the said offences under the NDPS Act and accordingly the FIR impugned herein was registered.

4. Mr. Rajiv Patil, learned Senior Advocate represents the Applicant and Mr. Ashish Satpute, learned APP appears for the State.

5. Mr. Rajiv Patil raised the following contentions:

5.1 The amendment of adding said chemical in Schedule B of the NDPS Order was not publicised by the Government nor were its own statutory Authorities aware about the same.

5.2 Sam Fine O Chem, the manufacturer had sought clarification from the Zonal Director, Narcotics Control Bureau, Home Ministry, Ahmedabad as to whether NOC was required for exporting the said Chemical. Mr. Patil points to a letter dated 14th May 2009 addressed by the Zonal Director, NCB, Home Ministry, Ahmedabad addressed to one Shri D.N.Mehta, Director of Sam Fine O Chem Ltd., clarifying that for export and production of said chemical, no permission is required from the Narcotics Control Bureau. According to Mr. Patil, the Zonal Director is the Nodal Agency for the enforcement of NDPS Act and the Applicant concluded from his clarification that NOC of the Narcotics Commissioner was not required.

5.3 The Export Promotion Council was not aware of the Government Notification amending NDPS Order to include the said chemical in the Schedule B.

5.4 The website of NCB had also not published