Acrynova Industries Private Limited ... vs The State Of Maharashtra Thr Honorable ...
2025 Latest Caselaw 7632 Bom

Bombay High Court

Acrynova Industries Private Limited ... vs The State Of Maharashtra Thr Honorable ... on 18 November, 2025

2025:BHC-AS:49494 Prasad Rajput
                        (P.A.)

                                                                                   902-BA-3935-2025 .DOC




                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION
                                      BAIL APPLICATION NO. 3935 OF 2025

                     Mohan Babulal Jain                                         ...Applicant
                          Versus
                     Union of India                                             ...Respondent


                     Mr. Aabad Ponda, Senior Advocate a/w Mr. Prasanna
                           Namboodri, Mr. Ayaz Khan, Ms. Pratibha Namboodri,
                           Mr. Rishabh Sinha, Ms. Pallavi Dabak and Ms. Nakshatra
                           Mahadik, for the Applicant.
                     Mr. Jitendra B. Mishra a/w Ms. Sangeeta Yadav, Ms. Ashutosh
                           Mishra and Mr. Rupesh Dubey, for the Respondent No.1.
                     Ms. Megha S. Bajoria, APP for the Respondent - State.


                                           CORAM          DR. NEELA GOKHALE, J.
                                           RESERVED ON:   13TH NOVEMBER 2025
                                           PRONOUNCED ON: 18TH NOVEMBER 2025
                     JUDGMENT:

-

1. The Applicant seeks his release on bail in

connection with NDPS Case No.1543/2025, pending before

the Special Judge for NDPS, at Greater Mumbai, for the

offences punishable under Sections 8(c) r/w 23(c), 26, 28 and

29 of the Narcotic Drugs and Psychotropic Substances Act,

1985 ('NDPS') r/w Rule 53 and 58 of the NDPS Rules made

thereunder.

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2. The facts of the case, in brief are as under:-

i) On a specific intelligence received by the

Commissioner of Customs (Export), Air Cargo Complex,

Sahar, Mumbai, that an export consignment was carted

for export by M/s. Naprod Life Sciences Pvt. Ltd.,

comprising a psychotropic substance namely 'Ketamine',

without export authorisation / license / NOC of the

Central Bureau of Narcotics, the consignment was traced

and tracked in the Indian Customs Electronic Data

Interchange System (ICES) on 24th January, 2025. On

the directions of the Addl. Commissioner of Customs, an

alert was invoked against M/s. Naprod and as directed,

the said consignment was put on hold. The said

consignment was being sent to M/s. Macro Customs

Consultants LLP through the Customs Broker (CB).

ii) The officers of Special Intelligence and

Investigation Branch ('SIIB') (Export), ACC, Mumbai,

intercepted this consignment at the Mumbai

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International Airport. The same was examined under

Panchanama dated 28th January, 2025, and it was found

that the consignment consisted of 25 brown colour

packages. Upon examination of the goods, it was found

that there were about 5000 vials of Ketamine Injection

BP of 500 mg/10 ml in the packages. The same is of

commercial quantity.

iii) An Application dated 27th January, 2025,

was moved by an employee of the CB - M/s. Macro

Customs Consultants LLP to the SIIB officers seeking a

direction to cart the consignment Back to Town (BTT).

The Application was put on hold by the Custom

authorities on 28th January, 2025. The reason given in

the Application was that due to delay in flight schedule,

the booked flight was canceled and the next flight being

available only in the following week, it was not desirable

to keep the Cargo in the custody of the Custom officers

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and to avoid the demurrage charges, it was decided to

take the Cargo back to town to await the next flight.

iv) Ketamine being a psychotropic substance

under the NDPS Act, a no objection certificate / export

authorisation from the Narcotics Commissioner is

required to export the said substance. Admittedly, M/s.

Naprod did not have any export authorisation certificate

and hence, the goods were seized by the Custom

authorities. The statutory provisions of the NDPS Act

were complied. Summons were issued to M/s. Naprod.

One Mr. Anil Pal, Assistant Manager (EXIM) co-accused

appeared before the officials as a authorized

representative of M/s. Naprod and recorded his

voluntary statement under Section 67 of the NDPS Act

r/w Section 108 of the Customs Act, 1962 on 29 th

January, 2025. Summons were also issued to the

Applicant to appear before the authorities on 30 th

January, 2025. The Applicant appeared along with the

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co-accused and another business consultant Shri Ajit

Mehta. Mr. Pal in his statement recorded that he was

responsible for the export clearance work in customs

and that he did not take approval from his seniors but

filed shipping bills as per the order received from the

marketing team. From his other statements, it transpired

that Mr. Pal was aware that the Ketamine injection is a

psychotropic substance and requires export

authorisation to be exported. Mr. Pal was thus arrested

after providing him with grounds of arrest, the reasons

of arrest and the arrest memo. He was produced before

the Special Court and remanded to judicial custody from

time to time. His Bail Application stands rejected by the

Sessions Court and withdrawn from the High Court. His

second Bail Application is pending before this Court.

Other co-accused were also arrested.

v) Insofar as the present Applicant is

concerned, during the recording of his statement, he

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complained of chest pain and was taken to Lilavati

Hospital on his oral request. He was admitted and

discharged on being declared fit. He was again

hospitalized at Smt. S.R. Mehta and Sir K.P. Cardiac

Institute, Sion. He was again discharged on 2nd February,

2025, and referred to general physician. He was also

examined by doctors of Sir J.J. Group of Hospitals and

was discharged as all tests were found in normal

parameters. The recording of his statement continued.

Thereafter, the Applicant as a director, was found to be

responsible for the attempt to export Ketamine injection

without having export authorisation. He was provided

the grounds of arrest and reasons of arrest on 3 rd

February, 2025. Arrest memo was provided to him and

his wife was also informed in that regard. Thus, the

Applicant is in custody since 3rd February, 2025.

vi) The Applicant filed a Bail Application

No.369 of 2025 before the Special (NDPS) Court,

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Mumbai, which was rejected by the Court. He filed a

second bail application, which was also rejected. He

filed a Criminal Bail Application No.1936 of 2025 before

this Court, which was withdrawn with permission to file

a bail application before the Special Court. Applicant

filed Criminal Application No.433 of 2025 under Section

528 of BNSS which was also permitted to be withdrawn

by order dated 5th May, 2025 on the ground that Bail

Application No.1936 of 2025 was filed before this Court.

Another Bail Application No.522 of 2025 was filed by

the Applicant before the Special Court. By order dated

29th May, 2025, on a praecipe filed by the Applicant

before this Court, he was permitted to withdraw Bail

Application No.1936 of 2025 with liberty to file a bail

application before the Special Court. On 8 th July, 2025,

the Applicant filed Bail Application No.522 of 2025,

before the Special Judge. During the pendency of the

same, a Criminal Writ Petition No.3770 of 2025, was

filed before this Court seeking issuance of a writ of

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habeas corpus on the ground of illegal detention and

non production within 24 hours before the Magistrate.

The said Petition was rejected by order dated 7 th

October, 2025.

vii) On 29th July, 2025, the Respondent filed the

complaint under Section 8(c), 23(c), 26, 28, 29 and 54

of the NDPS Act r/w Rule 53, 58 and 66 of the NDPS

Rules 1985. Another Bail Application No. 2834 of 2025,

filed by the Applicant was permitted to be withdrawn by

order dated 7th August, 2025, with liberty to file a bail

application before the Special Court. The Bail

Application filed in Special Case No. 1543 of 2025 was

rejected by the Special Court by its order dated 28th

August, 2025. Hence, the Applicant is before this Court

for the relief as prayed.

3. Mr. Ponda, learned senior counsel appeared for the

Applicant and Mr. Mishra, learned SPP appeared for the

Respondent.

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4. At the very outset, Mr. Ponda submitted that since

the Company namely M/s. Naprod Life Sciences Pvt. Ltd.,

Mumbai, was not made an accused, the Director i.e., the

Applicant cannot be prosecuted. Mr. Ponda placed reliance on

the decision of the Supreme Court in the case of Aneeta Hada

v. Godfather Travels and Tours (Pvt. Ltd)1, to canvass his

argument that the actual offence should have been committed

by the Company and then alone the other categories of person

can be held liable for the offence. Drawing strength from the

said decision, Mr. Ponda submitted that if the Company is not

arraigned as an accused, prosecution cannot be maintained

against its director, employee etc. Mr. Ponda also drew my

attention to the complaint filed by the Respondent against the

Applicant to say that there is no averment in the entire

complaint that the Applicant was responsible for the day to

day affairs of the Company. He submitted that in absence of

such an averment the complaint is not maintainable against

the Applicant. He relied on several decisions of the Supreme

Court to buttress his above argument including the decision in 1 (2012) 5 SCC 661

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the matter of SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla and

Ors.2,

5. Mr. Ponda then argued that there was no mis-

declaration in respect of the consignment. He submitted that

the Applicant's arrest is only on the ground of procedural

violation and there was no trafficking alleged against him. He

also pointed to a violation of Section 42 of the NDPS Act. On

facts, Mr. Ponda submitted that there was no attempt to

export without an authorisation. Most importantly, he submits

that there is no role of the Applicant in commission of the said

offence inasmuch as the Applicant had no knowledge

regarding the consignment being sent for export. Hence, there

is a total absence of mens rea. Moreover, he submitted that

the Customs House Agent ('CHA') itself failed in its statutory

duty to intimate the Applicant or M/s. Naprod regarding the

requirement of export authorisation. Furthermore, he

submitted that the embargo under Section 37 of the NDPS Act

2 (2005) 8 SCC 89

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is totally inapplicable. Lastly, Mr. Ponda stated that in any

case, M/s. Naprod has now received an export authorisation

on 7th May, 2025 from the CBN and hence the Applicant is

unlikely to commit such offence again. On the basis of the

aforesaid grounds Mr. Ponda prayed that the Applicant be

released on bail.

6. Per contra, Mr. Mishra, learned SPP took me

through the Affidavit-in-Reply dated 13th October, 2025,

affirmed by one Mr. Mahesh Vhatkar, Assistant Commissioner

of Customs, SIIB (Export). Mr. Mishra pointed to the anlysis of

forensic data extracted from Mr. Pal's mobile phone from

which were recovered screenshots of a WhatsApp

conversation between Mr. Pal and one Ms. Geetanjali (NPD).

There is conversation also between Mr. Pal and one Mr. Rahul

Chavan, that 'Mohan sir approve to process the shipment....

please confirm....' Mr. Mishra submitted that although this

conversation was relating to a different consignment and

different shipment, it demonstrates that the Applicant as a

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Director, played a crucial role in approving shipments.

Another WhatsApp conversation was referred to by Mr.

Mishra. Mr. Mishra submitted that the NOC / export

authorisation is mandatory. Admittedly, the same was not

available with M/s. Naprod and an endevour was made to

export dehors the authorisation. This itself is an offence under

the provisions of NDPS Act. The Applicant being a Director of

the Company, played an active role in the shipment of

consignments from the Company to the exporters. There is

material to indicate approvals ordinarily given by the

Applicant, while consignments and shipments of other

products were exported to the customers of M/s. Naprod.

Even the Applicant's own brother in his statement stated that,

his elder brother namely the Applicant was overall in-charge

of the Company. Mr. Mishra pointed to paragraph 15 of the

complaint where the Applicant's role is detailed. Mr. Mishra

placed reliance on a judgment of this Court in the matter of

Gudipati Subramanian v. Union of India 3 to contend that the

3 2024 (389) E.L.T. 317 (Bom)

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statements recorded under Section 67 of the Act cannot be

used against the Accused. Mr. Mishra thus, prayed that the

Application be rejected.

7. Before adverting to the rivals submissions

canvassed on either side, it would be apposite to look into the

provisions of Section 38 of the NDPS Act dealing with offences

by companies. Section 38 of the NDPS Act reads thus:-

38. Offences by companies.-(1) Where an offence under Chapter IV has Do been committed by a company, every person, who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-

section (1), where any offence under Chapter IV has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed

th 18 November 2025

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to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. For the purposes of this section-

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.

8. The first part of the provision places the liability

on every person, who was in-charge of and responsible for the

conduct of business by the Company at the time the offence

was alleged to be committed by the Company. However, the

proviso to Sub-section (1) provides immunity to such person

liable to punishment, if it is demonstrated that the particular

offence is committed without his knowledge or that he

exercised diligence to prevent commission of the alleged

offence.

9. In order to ascertain as to whether the Applicant

was demonstrably in knowledge of the acts of the co-accused

including Mr. Pal, the manager who personally carted the

consignment for export. The chronology of events is important

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to establish the culpability of the Applicant. At the time of

preparing and carting the consignment for export, the

Applicant was admittedly in Dubai. Admittedly, M/s. Naprod

has a valid and subsisting license issued by the Competent

Authority to manufacture Ketamine, although M/s. Naprod

did not have export authorisation at that time.

10. The sum and substratum of the material placed on

record by the Respondent to indicate knowledge of the

Applicant is essentially WhatsApp messages between the co-

accused inter se and another person and statements of several

witnesses including co-accused and the Applicant himself to

the effect that the Applicant was in-charge of the conduct of

the business at the time when the offence was committed. I

have perused the WhatsApp chats. The same relate to a

conversation between Mr. Pal and another person pertaining

to another authorised consignment, where the Applicant's

approval is being discussed. The other WhatsApp chat also

relates to a negotiation by the Applicant with a buyer of

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another product of M/s. Naprod. The same also relates to

export of some tablets and the price negotiations in that

regard. The Ketamine seized is admittedly not in a tablet form

but in injections. Hence, it is clear that the conversations and

the WhatsApp messages on record and relied upon by the

Respondent do not establish the Applicant's involvement nor

his knowledge regarding the subject export consignment.

11. A plain reading of the complaint itself has a

paragraph titled 'Role of the Mohan Babulal Jain'. In the entire

paragraph, there is no averment that the offence was

committed with the knowledge of the Applicant. Even a

generic statement is absent that the Applicant is responsible

for the day to day affairs of M/s. Naprod. Save and except for

the said paragraph, the entire complaint is bereft of the active

role of the Applicant, as being responsible for the said

consignment of Ketamine injections. The only basis of arriving

at the conclusion that the Applicant failed to implement

adequate compliance measures, exercised lack of oversight

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and failed to prevent the unauthorised attempt to export the

consignment is that the Applicant was an acting Director of

the Company and aware that the goods i.e. Ketamine

injections is a restricted substance under the NDPS Act, for

which authorisation is required. There is no averment in the

entire complaint that attributes an active role of the Applicant

in the attempt to export the Ketamine.

12. I have perused the statements of the Applicant

himself and other witnesses which are placed on record. The

Applicant in fact has admitted that M/s. Naprod has a

hierarchy structure for day to day work and the senior

management team reports to him. However, he has

specifically denied his alleged generalized responsibility of

due diligence being linked to the unintentional, non-

beneficial, non advantageous errors and omissions on the part

of his hierarchical team members. I have also gone through

the statement of Shri Brijesh Radheshyam Pandey, the

designated partner, CB - M/s. Macro Customs Consultant LLP.

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There is nothing in his statement to indicate the active

involvement of the Applicant in the alleged offence. In fact, he

has named one Mr. Ketan Kore, who handled the shipment at

export and who knew that the goods under the consignment

are restricted under the NDPS Act. I have also perused the

statement of Mr. Ajit Mehta a past employee of M/s. Naprod.

He has specifically stated that the purchase order was received

by the sales operation team and ordinarily the team takes it

forward with the approval of the Director. He has further

stated that one Mr. Rahul Chavan is the overall Export Head

of M/s. Naprod. Further the statement of Mr. Manish Jain,

another director indicates that the Applicant although a

working director and overall in-charge of the Company is only

involved in framing policies of the Company and in the matter

of its business activities etc., the actual day to day business is

looked after by the employees in their respective departments

in their Company. I have also perused statements of other

witnesses. On examination of the statements of witnesses

taken at face value, for the limited purpose of bail, prima facie

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indicate that the Applicant had no knowledge about the

specific consignment being carted for export, sans export

authorisation. There is no material on record, which reveals

that the present Applicant was aware of the export

consignment containing Ketamine injections.

13. It is admitted that as on date the export

authorisation for the export of Ketamine injections is issued by

the Competent Authority to M/s. Naprod. Prima facie the

material on record indicates alleged commission of the

offence without the knowledge of the Applicant. The

Applicant, as a Director of the Company, though may be in

charge of the day to day affairs of the company, the

prosecution has failed to bring home the knowledge of the

subject consignment to the Applicant. Consequently, the

question of the Applicant exercising due diligence to prevent

commission of the offence does not arise.

14. In view of the aforesaid discussions, the rigors of

twin conditions of Section 37 of the NDPS Act are satisfied. I

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have no hesitation in holding that there are reasonable

grounds for believing that the Applicant is not guilty of the

offence. Admittedly, there are no antecedents in respect of the

present Applicant. Moreover, M/s. Naprod has already

received the export authorisation to export Ketamine

injections. In this view of the matter, the Applicant is not

likely to commit any offence under the NDPS Act while on

bail.

15. Considering the aforesaid, I am inclined to enlarge

the Applicant on bail and it is ordered as under:-

ORDER

i) The Applicant be enlarged on bail, on

executing PR Bond in the sum of Rs.1,00,000/-

with one or two local sureties in the like amount;

ii) The Applicant is permitted to furnish

provisional cash bail of Rs.1,00,000/- for his

release immediately and file undertaking that he

will provide one or two sureties in the like

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amount of Rs.1,00,000/- within a period of four

weeks after his release, which shall be accepted by

the Trial Court. The Applicant shall provide the

sureties as directed;

iii) The Applicant shall attend the Police Station

concerned, on first Monday of every month

between 10:00 a.m. and 12:00 p.m., till the

charges are framed by the Trial Court. He shall

also attend the Trial Court concerned on each and

every date as directed, till the conclusion of the

trial, save and except if the Applicant is exempted

from appearance by orders of the Trial Court;

iv) If the Applicant has not deposited his passport,

the Applicant shall deposit the same with the

concerned Police Station;

v) The Applicant shall not tamper or attempt to

influence or contact the complainant, witnesses or

any person concerned with the case;

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vi) The Applicant shall inform his latest place of

residence and mobile contact number

immediately after being released and / or change

of residence or mo sans bile details, if any, from

time to time to the Court seized of the matter and

to the Investigating Officer of the concerned

Police Station;

vii) The Applicant to co-operate with the conduct

of the trial;

viii) Any infraction of the aforesaid conditions

shall entail cancellation of bail;

16. Application is allowed in the above terms and is

accordingly disposed of.

17. It is made clear that the observations made herein

are prima facie and are confined to this Application and the

Trial Judge to decide the case on its own merits, uninfluenced

by the observations made herein.

(DR. NEELA GOKHALE, J)

th 18 November 2025