Page 1

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  

1

Page 2

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.  

2

Page 3

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  

3

Page 4

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  

4

Page 5

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-

5

Page 6

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  

6

Page 7

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;  

7

Page 8

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

Page 9

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  

9

Page 10

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.  

10

Page 11

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.

11