2016 (3) TMI 703 - HC - Customs

Phytosanitary Certificate of the Exporter - FIR filed against importer and exporter of the timber consignment for producing forge certificate - Amount spent on fumigation of timber in the exporting country - Respondent contended that no import of consignment of timber can be permitted into India unless accompanied by the original Phytosanitary Certificate issued by an authorized officer at the country of origin by relying upon Rule 3 (20) of the Quarantine Order - Held that - in accordance with the Plant Quarantine Order, timber has to be fumigated by the exporter. Rules 3 (20) and 9 (1) make it abundantly clear that fumigation prior to export is mandatory. No importer can state that because the timber has been fumigated in India, it should not be sent back to the country of origin. Though, undoubtedly the power of relaxation is contained in the Quarantine Order, yet it has to be exercised for some cogent reasons and that too, in larger public interest. If the fault cannot be attributed to the petitioner for non-fumigation by the exporter, the consignment in question cannot be allowed to remain in India as firstly, it would lay down a wrong precedent and secondly, non-fulfillment of mandatory condition of fumigation at exporter s end could have serious ramification for our flora and fauna as well as environment in general. - Decided against the appellant

Summary

Issues:
Challenge to order directing FIR against importer and exporter due to forged Phytosanitary Certificate.

Analysis:
The petitioner challenged an order directing the Plant Protection Advisor to file an FIR against the importer and exporter of a timber consignment due to a forged Phytosanitary Certificate. The petitioner argued that they should not be blamed for the exporter's fault, citing relevant rules from the Plant Quarantine Order. On the other hand, the respondents contended that timber import into India requires the original Phytosanitary Certificate from the country of origin. The respondents also highlighted the petitioner's status as a repeat offender, leading to a referral of their application for relaxation to the Department of Agriculture and Cooperation.

Upon hearing both parties, the Court emphasized the mandatory fumigation requirement for timber exports as per the Plant Quarantine Order. The Court noted that even if the fault lay with the exporter, allowing the consignment to remain in India could set a wrong precedent and have serious consequences for the environment and agriculture. While acknowledging the power of relaxation in the Quarantine Order, the Court stressed that it should be exercised in larger public interest. The Court ultimately decided not to interfere with the impugned order but granted the petitioner the liberty to pursue damages against the exporter through legal means.

In conclusion, the Court's decision upheld the importance of following regulations for timber import, emphasizing the need for fumigation at the exporter's end and the potential risks associated with non-compliance. The judgment highlighted the significance of protecting flora, fauna, and the environment, while also allowing the petitioner recourse for damages against the exporter within the framework of the law.