Case: Umesh Badrinarayan Bangur Vs. Sanjay A. Poojary, Narcotics Control Bureau &amp; Others

2. Only two contentions have been raised during the course of hearing. The first ground, on which the petitioner prayed for quashing of proceedings against him, is that, he has been named as accused No.2 only in his capacity as Professional Director of the Company, which, in turn, was found to have indulged in offence punishable under Section 29 read with Sections 8(c) and 21 of the N.D.P.S. Act, 1985, Section 21(c) read with Sections 8(c) and 29 of the N.D.P.S. Act and Section 23 read with Sections 8(c), 21 and 29 of the NDPS Act. The second argument is that, the vessel, in which the goods in question were transported, was intercepted by officers of Narcotics Control Bureau on high seas, which is outside the area of operation of the officers of NCB, and for that reason, the entire action by the officers of NCB under the provisions of the NDPS Act is vitiated. At best, it is the Customs officials who could have proceeded in the matter, being a case of importing of illegal goods or smuggling of goods.3. So far as the first argument is concerned, indeed, the description of the petitioner in some of the documents has been mentioned as Professional Director of the Company. If it were to be held that the prosecution case against the petitioner about his involvement in the offence is limited to, in his capacity, as Professional Director, the petitioner may be justified in contending that he cannot be prosecuted for the offence committed by the Company, in which he, incidentally, happens to be only a Professional Director, without any thing more or knowledge about the commission of offence by the Company.4. As the present petition is for quashing of prosecution against the petitioner, which is pending for trial, we would examine the grievance of the petitioner only in the context of the position emerging from the documents now presented by the prosecution. We would, therefore, straightaway refer to the allegations in the complaint, more particularly about the role of the petitioner before us.

Reasoning:
5. It is alleged that, on the basis of information, officers of Narcotics Control Bureau, Mumbai Zonal Unit, Mumbai, Customs, Nhava Sheva and Police, along with two independent panch witnesses and Omprakash Nogaja (accused No.1), Umesh B. Bangur (petitioneraccused No.2) and Vijay O. Nogaja, Directors of OPM International Pvt. Ltd., Mumbai, and Vijay Anant Thorve (accused No.3) Managing Director of Mayur Clearing Agency (Custom House Agent) presented themselves at Berth No.1, Gateway Terminal India, Nhava Sheva, Navi Mumbai. The search of the container of Maersk Line bearing No.MSKU 636761, which was shipped on board vessel "Maersk Rotterdam" on 18th April, 2006 at Port Guayaquil, Ecuador, South America, and was bound for JNPT, India, was suspected to contain 200 Kgs. of Cocaine, a narcotic drug, in the name of consignee OPM International Pvt. Ltd. The said container was searched by the panchas, and it was revealed that it contained bags weighing about 2.870 Kgs., 6.662 Kgs., 6.554 Kgs., 6.396 Kgs. and 6.420 Kgs., respectively. The total gross weight of the bags marked 1(a) to 1(e) was 28.902 Kgs. On emptying contents of scotch taped packets recovered from packets marked 1(a) to 1(e) into a larger polythene bag, the same was weighed on a weighing machine and it was found to be about 24.800 Kgs. of Cocaine, which was placed into a carton and tied. The entire search and seizure process was done in the presence of accused Nos.1 and 2, who were the Directors of OPM International Pvt. Ltd. They put their signatures on the label affixed on carton marked I. Be that as it may, accused No.1, on being enquired, disclosed that five more containers were to arrive, besides eight containers. It is alleged that the officers then proceeded to carry out further search, and during the said search, recovered additional quantity of Cocaine, which also was seized in the presence of the accused, including the petitioner.6. Indeed, mere presence of the petitioner at the time of search and seizure or his putting his signature on the label affixed on carton in his capacity as Professional Director of the Company by itself may not be enough to proceed against him.7. Reverting to the allegations in the complaint specific to the role played by the concerned accused in the import or, especially, that each of them had knowledge about the import of contraband drugs, in paragraph 28 of the complaint, on the basis of the statement of accused No.1, it is stated that the consignor of the said eight containers, including Container No.MSKU 8636761, was Megha International Pte. Ltd.,giving details regarding the consignment, he has stated that earlier, the business of import was being done by Royal Global Pte. Ltd., but he wanted to maintain a distance with his brother, and, accordingly, as per the latters advice, he started importing through Megha International Pte. Ltd. He has stated that Madhu (wife of Manak Maheshwari, his brother) was having 25% shares in OPM International Pvt. Ltd., while Neelu (wife of S.P. Biyani) was having 49% shares in his company and the petitioner herein, Umesh Bangur, and Om Prakashs son, Vijay Nogaja, together held 1% shares in the said company. So far as the role played by the petitioner is concerned, it is alleged that accused No.1, in his statement, has mentioned that the petitioner (Umesh Bangur, accused No.2) handled the legal and company matters.Considering the allegations in the complaint and the contents of the statements of the accused, which are placed before us, we are afraid, it is not possible to accede to the argument of the petitioner so as to quash the complaint pending against the petitioner (accused No.2). In the first place, it is not a case where no allegation is made against the petitioner in the said complaint. Whereas, the prosecution case suggests that the petitioner herein was part of criminal conspiracy. As aforesaid, the offence alleged to have been committed by the accused is also under Section 29 of the NDPS Act for abatement and criminal conspiracy. In that view of the matter, the argument of the petitioner that the criminal action against the petitioner cannot be proceeded, as he has been roped in merely because he is a Professional Director of the company, who indulged in the offence of importing the contraband narcotic drug does not hold good. Going by the abovenoted allegations, it is the prosecution case that the role played by the petitioner (accused No.2) was not limited to that of Professional Director, but his involvement is something more than that and being party to criminal conspiracy. The correctness of these allegations will have to be examined during the trial keeping in mind the defences of the petitioner, if any. Suffice it to observe that the first argument of the petitioner to invite this Court to quash the criminal complaint against the petitioner is devoid of merits.23. Turning to the second contention, the same proceeds on the premise that the vessel was intercepted by the officials of NCB, on the high sea with the help of Coast Guard before it entered the Mumbai waters, it necessarily follows that the said action is without authority of law. As a result, the entire action initiated by the officials of NCB is vitiated. This argument proceeds on the basis that the area of operation of the officials of NCB is limited, and is not extended, to Mumbai waters, much less high sea. Once again this argument will have to be answered on the basis of the allegation made in the complaint.As regards Exhibit F, Panchnama dated 3rd June, 2006, that mentions that the panchas, along with others, were taken to Berth No.1 of Gateway Terminals India, Nhava Sheva, Navi Mumbai, at 14.00 hours on 3rd June, 2006, when the procedure of search and seizure was undertaken in the manner mentioned in the said panchnama.28. Taking the last document first, viz., panchnama, even on a fair reading of the said document. it does not, in any manner, even prima facie, substantiate the stand of the petitioner regarding the eight containers, in which the narcotic contraband was "seized" inor, for that matter, after entering the Indian waters. Even the document, Exhibit D, communication sent by A.P. Patil, Superintendent to Anirudha Lele of Maersk CFS, in our opinion, does not even prima facie, indicate that the search and seizure of narcotic contraband was done outside the area of operation of the officials of NCB. Indeed, it refers to the fact that the captain of Vessel S.L. VOYAGER was served with a Detention Order, detaining the eight containers, which were required to be examined under the NDPS Act, with instructions not to send those containers to Mulund CFS, but retain at Nhava Sheva CFS for detailed examination by the officials of NCB. The fact so stated does not take the matter any further for thedoubt, the action required to be taken in relation to the acts of commission and omission, inviting action under the provisions of the "Customs Act", can be taken only by the officials of the Customs Authority. However, we find force in the argument of the respondents that, having regard to the setting in which the provisions of the NDPS Act operate, the action to be taken in furtherance of the provisions of the NDPS Act is, essentially, that of the Central Government. It is the Central Government, by virtue of Section 4(3) of the NDPS Act, by order, published in the Official Gazette, constitutes an authority or "hierarchy of authorities" by such name or names as may be specified in the order for the purpose of exercising such of the powers and functions of the Central Government under that Act and for taking measures with respect to such matters referred to in(2) of Section 4 and subject to the provisions and control of the Central Government. By virtue of Section 4(1) of the NDPS Act, it is the bounden duty of the Central Government to take all such measures as it deems necessary for the purpose of preventing obtaining and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein.On conjoint reading of the aforesaid provisions, there is no manner of doubt that the officials of NCB are competent to enter upon in the area which is primarily under the control of the Customs Authority, but which area would also fall within the area of operation of the officials of NCB within the meaning of NDPS Act, so as to conduct search and seizure at such place. If so, the argument of the petitioner that the action of the officials of NCB is vitiated, being without authority of law, is devoid of merits.Considering those Notifications and the provisions of the NDPS Act of 1985, coupled with the fact that, going by the material presently on record, prima facie, it is not possible to take the view that the power exercised by the officials of NCB, on the basis of which, the complaint has been filed, can be said to have been taken by them outside their territorial jurisdiction, as is sought to contended before us.In the present case, the argument, however, is limited to the fact that the detention of the goods was done on high seas by NCB for which reason the entire action is vitiated being without authority of law. We have already adverted to the contents of the complaint as well as the relevant documents, and have held that, as at present, it is not possible to hold, even prima facie, that the search and seizure of the goods in question was done on high seas. Whereas, it appears that the case for the prosecution is that the search and seizure was conducted after the goods had arrived in the dock. If so, NCB was competent to proceed in accordance withopinion was indicated during the course of hearing after going through the record. On that day, another question (Point No.2 dealt with in this judgment) was raised. Thereafter, when the matter appeared on 21st February, 2011, it was adjourned to 22nd February, 2011, with direction that the matter be taken up first on Board, as we wanted to conclude the hearing. We had clearly indicated that no request for adjournment on the ground ofof senior counsel will be entertained. After rejecting argument for adjournment, we called upon the instructing advocate to proceed with the argument, as the hearing of the matter was substantially over on the earlier occasion. He did commence the argument, and since the same remained inconclusive, we kept the matter on 22nd February, 2011. When the matter was taken up on that day, the petitioner informed us that as his advocate, who had commenced the argument, had to suddenly go to Delhi, even the said advocate was not available. We found this development to be somewhat unusual. Even then, we accommodated the petitioner, and made it clear that the matter would now proceed on 23rd February, 2011, when he should make necessary arrangement.On 23rd February, 2011, thehimself appeared, and stated that he may be given time till Monday, the 28th February, 2011, to prepare the matter himself. By way of indulgence, we adjourned the matter to 28th February, 2011, on which date, however, to our surprise, the petitioner appeared in person, and told us that he would like to discharge hisand would proceed with the argument himself. Accordingly, we recorded that statement and called upon the petitioner to address us. He, instead, requested the Court to give him time to file Written Submissions and Compilation of Judgments, on the basis of which, the Court may proceed to decide this matter. At his request, therefore, we deferred the hearing to 7th March, 2011. The matter, however, was eventually taken up on 11th March, 2011, when the petitioner unambiguously stated that arguments on behalf of the petitioner has already been completed, and the Court may decide the matter on the basis of his Written Submissions. Thereafter the arguments of the respondents were concluded. We, however, gave time to the respondents to file brief Written Submissions, if any, and also permitted the petitioner to file reply thereto. Accordingly, the respondents as well as the petitioner have filed Written Submissions and Additional Written Submissions respectively. After perusing the same, and as no further oral argument was required or insisted by any party, we have proceeded to pronounce the reserved verdict. We are informed that the petitioner has objected to taking the written submissions of respondent on record as it is not filed within time. However, we reject that objection.