Can a business process outsourcing (BPO) service provider be held criminally liable for the content of information transmitted over the Internet?
This question was raised before the Supreme Court on Monday by an IIT graduate lodged in a jail under the draconian Narcotics Drugs and Psychotropic Substances (NDPS) Act for allegedly dealing in banned drugs.
Sanjay Kumar Kedia's offence was that his BPO had, on behalf of a US-based caller, placed an order for a banned drug with a seller located in America. If convicted, he faces a minimum 10-year imprisonment. A bench headed by Justice S.B. Sinha posted Kedia's bail plea for hearing next week.
Kedia, a US-returned software expert, started his BPO in Kolkata after developing software for pharmaceutical applications. The typical transaction involved a call from a US-based patient wanting to procure a medicine. Kedia's BPO used to immediately access the Internet to locate the pharmaceutical suppliers in the same area as that of the caller and place the order.
The BPO processed thousands of requests after charging the caller through his or her credit card for the service. One of the drugs ordered through the call centre was Phentermine, which also has a psychotropic substance in it. At the request of the US drug enforcement administration, the NCB searched Kedia's premises in Kolkata and charged him under the NDPS Act. However, it failed to recover the contraband. NCB officials simply seized the computers and hard disk from Kedia's office.
After the Kolkata high court rejected his bail application stating the charges were serious, Kedia moved the Supreme Court. In his appeal, Kedia argued that his company was simply an Internet service provider or an intermediary and was protected by the Information Technology Act. "Under section 79 of the Act an intermediary cannot be held liable for the contents of a transaction," Kedia's petition states.
He has also claimed benefit of the American law that, according to him, does not permit a website operator to be prosecuted as it is likely to cripple the BPO industry. His second defence is that Phantermine is not listed as a scheduled drug under the NDPS Act and, therefore, a case cannot be registered under it.
Notice to Jogi
The Supreme Court issued notice to former Chief Minister Ajit Jogi on a petition filed by the Chattisgarh Government on the alleged fradulent caste certificate being held by him for his Scheduled Tribe status.
A bench of Justices B N Aggrawal and P P Naolekar issued the notice on a batch of special leave petitions filed by the Chattisgarh Government and certain other individuals challenging the clean chit given to Jogi by the state High Court on December 15, last year. The SLPs submitted that the High Court passed the order in favour of Jogi without properly examining the evidence on record.