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TMI Blog2013 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition for obtaining a licence to import of boric acid, if such import is not for the purpose of using the same as an insecticide under the Insecticides Act, 1968, and as to whether such a condition in the import policy is legally sustainable. 2. The facts are in a very narrow compass. Boric acid is a substance, which is used as an insecticide and also for industrial and other purposes. The petitioners use imported boric acid not for use as an insecticide but for other manufacturing purposes. By the export-import policy, as a condition for grant of licence to import boric acid, the petitioners are obliged to obtain a registration for boric acid under the Insecticides Act, 1968, from the authorities under the Insecticides Act, 1968. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other than as an insecticide, registration of the same under the Insecticides Act, 1968 is not necessary and exempted from. The petitioners submit that, therefore, the Central Government cannot put a condition in the import policy insisting on the petitioners getting a registration under the Act for enabling them to apply for licence to import boric acid. According to them, the export-import policy being a subordinate legislation and the Insecticides Act, 1968 being a plenary legislation, the subordinate legislation cannot violate the provisions of the plenary legislation insofar as under the plenary legislation, viz., the Insecticides Act, 1968, when boric acid is used for purposes other than as an insecticide, no registration is necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is nothing violative of the fundamental rights of the petitioners under the Constitution of India in prescribing such a condition and, therefore, they cannot challenge the said condition. It is submitted that any person desiring to import or manufacture boric acid, is bound to obtain from the authority under the Insecticides Act, 1968, a registration of boric acid as per Section 9 of the Act. Boric acid being an insecticide, the petitioners can certainly apply and obtain registration under the Insecticides Act, and as such, the condition prescribed in the export-import policy obliging the petitioners to get registration under Section 9 of the Insecticides Act, 1968, does not in any way violate the fundamental rights of the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch period for the registration of each such insecticide. xxx xxx xxx xxx" Section 38 of the Insecticides Act, 1968 reads thus : "38. Exemption. - (1) Nothing in this Act shall apply to - (a) the use of any insecticide by any person for his own household purposes or for kitchen garden or in respect of any land under his cultivation; (b) any substance specified or included in the Schedule or any preparation containing any one or more such substances, if such substance or preparation is intended for purposes other than preventing, destroying repelli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who has lost employment on account of ban of sale of arrack, as a condition of the licence for vending toddy. The Kerala High Court upheld the condition, which was taken up in appeal before the Supreme Court. While setting aside that condition of the licence, in Paragraph 17 of the judgment, the Supreme Court held thus : "17. A rule is not only required to be made in conformity with the provisions of the Act whereunder it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature." I am of opinion that the said law laid down by the Supreme Court squarely applies to the petitioners' case also insof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave no remedy. The imposition of such a condition on the petitioners, which the petitioners are incapable of complying with practically, is certainly arbitrary and unreasonable and, therefore, is violative of the fundamental rights of the petitioners under Article 14 of the Constitution of India. The decisions relied upon by the learned counsel for the Central Board of Excise and Customs, in my opinion, cannot govern the issue to any extent, since they do not lay down any different law. In fact, it is settled law that if the export-import policy themselves impinge on the fundamental rights of a citizen of India, the same can be challenged appropriately. According to me, for valid imposition of such a condition on importers, Section 38 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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