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TMI Blog2014 (9) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the respondents from allowing import of khas khas from any country not specified in the notification; (iii) a mandamus to lay down a procedure by which first preference should be given to Indian farmers for selling their produce in the Indian market between the harvesting season and September; and (iv) a mandamus directing the respondents not to register any contract for import of khas khas and, if the contracts have already been registered, they should be cancelled and further, not to allow any import under licences or permissions until a procedure is framed in the interest of Indian farmers. 2. Poppy seeds or khas khas are a by-product of poppy. Poppy seeds do not constitute a narcotic substance. However, since they emanate from the poppy plant, which has narcotic properties, they are the subject matter of regulation under the EXIM policy. Chapter 12 of the Import Policy contains Heading 1207, which applies among other things to poppy seeds. The poppy seeds arc governed by Heading 1207 91 00. The policy contemplates free import of poppy seeds subject to certain conditions, which have been specified. Condition 3, as it was originally framed, provided the following stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hotropic Substances is enshrined in Article 47 of the Constitution. The principle of preventing use of drugs except for medicinal use was also adopted in the three international conventions on drug related matters, viz., Single Convention on Narcotic Drugs, 1961, Convention on Psychotropic Substances, 1971 and the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. 6. In this background, the grievance of the petitioner is that the provisions of the Import Policy have not been scrupulously enforced, as a result of which there is an apprehension that poppy seeds, which are imported into India, may have originated in countries where the opium poppy is not licitly or lawfully cultivated. Hence, it has been urged that (i) poppy seeds, being a by-product of a narcotic produce must be regulated with caution and this is also a part of India's obligations under the Single Convention on Narcotic Drugs, 1961; and (ii) the Central Bureau of Narcotics (CBN) merely registers contracts for import without ascertaining the origin of poppy seeds. Before it registers a contract, CBN is under an obligation to scrutinize as to whether (i) the country of orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Garg. On 1 April, 2013, a petition was filed in the Delhi High Court [Writ Petition (Civil) No. 2267 of 2013], seeking an order of restraint against the grant of any licence for import of poppy seeds between April and September 2013 and for suspension of imports of poppy seeds when the crop is available in the domestic market. On 10 April, 2013, the Delhi High Court disposed of the petition by directing the Union Government and the DGFT to consider the representation of the petitioners and take a decision thereon within six weeks. Thereafter on 14 April, 2013, a body by the name of Association of Agro Importers through Apresh Garg filed another petition before the Delhi High Court [Writ Petition (Civil) No. 2465 of 2013], seeking (i) a mandamus for strict adherence to the notification dated 5 October, 2012; (ii) an order of restraint from allowing import of khas khas from a country not provided in the notification; and (iii) a mandamus directing the Union Government to re-frame the policy and lay down a procedure to curb illegal import of khas khas in the Indian market. On 17 April, 2013, the Delhi High Court, by an interim order, called upon the petitioner to disclose the names of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt date of listing, notwithstanding any licence or registration of any import sale contract. This order has since been modified by the Division Bench on 8 August, 2013, so as to allow the clearance of imports from Turkey of such importers whose consignments of white poppy seeds were loaded for import to India on completion of all legal formalities, on or before 16 May, 2013. 13. The sequence of events, which has been referred to above, would reveal that two petitions were filed before the Delhi High Court. The first petition was disposed of with a direction to the Union Government to consider the representation, whereupon the second petition was filed for enforcement of the notification of the Union Government dated 5 October, 2012. The Delhi High Court called for a disclosure of the names of the members of the Association, who had filed the second petition, on 17 April, 2013. Immediately on the next day, the present public interest litigation came to be filed before this Court. The averments in the present public interest litigation are substantially similar and in fact, according to the respondents, there is a verbatim reproduction of the averments made in the petition file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, to cast doubt on the bona fides of the petitioner in moving these proceedings under Article 226 of the Constitution of India. 14. However, we are equally of the view that the issue which has been highlighted before the Court in these proceedings has a significant element of public interest so as to require the intervention of the Court to clarify some of the issues which arise from the information which has been brought to the attention of the Court. We must, however, deal with caution and circumspection, and not allow the proceedings to be misused to protect a business or commercial interest which the petitioners may seek to espouse. The exercise of jurisdiction must be carefully structured to ensure that the paramount sovereign interest of the nation is secured and that the veil of a PIL does not become an instrument of promoting a private business interest. We may refer, at this stage, to a judgment of the Supreme Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, wherein it has been observed that in exceptional situations, the Court may, even if the bona fides of the petitioner are doubted, proceed suo motu to deal with the grievance raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Origin' certificate so as to comply with condition (A) in the notification dated 5 October, 2012. CBN has stated and clarified that no registration certificate has been issued for import of poppy seeds from those countries, which are not designated by the notification. CBN has further stated that while it is true that the total registered quantity of import is 1.5 to 2.00 lac metric tonnes per year, the actual quantity of import is not more than 10%-15% of the registered quantity. In a further affidavit, CBN has stated before the Court that at the time of registration, importers get themselves registered merely on the basis of an estimate of likely imports. However, at the time of actual import, an importer is required to furnish a certificate of proof of licitly grown poppy seeds from the competent authority of the exporting country, which is verified by the customs authorities and the unutilized registration certificate against which import has not been effected is required to be surrendered back. In order to deal with the allegation in regard to the quantum of export from Turkey, it has been stated that the total quantum of export from Turkey to India was 10,946 metric ton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implementation of the policy of the Government of India of not permitting import of poppy seeds from non-designated countries. It is in pursuance of that policy that the conditions of the notification require a certificate that the poppy seeds originate in a country where opium poppy is grown licitly or legally. The Import Policy is a statutory document enacted in pursuance of the Import and Export Control Act, 1947. The policy entrusts the duty of registering contracts upon a specialized regulatory body, namely CBN. The role and function of CBN as a registering body are clarified in a Manual which prescribes the norms for the discharge of its functions. This Manual is not disputed nor is its applicability contested on behalf of the respondents during the course of the hearing. The Manual specifies the following functions of CBN in the matter of registration of import contracts for the import of poppy seeds under the notification issued by DGFT :- "5. Registration of import contract for import of poppy seeds under the provision of DGFT notification :- The Registration of import contracts with the Narcotics Commissioner for import of poppy seeds is provided for in the Ministr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sultation with Ministries, Organizations and State Governments and aims to :- "(a) Spell out the policy of India towards narcotic drugs and psychotropic substances; (b) Serve as a guide to various Ministries and organisations in the Government of India and to the State Governments as well as International Organisations. NGOs, etc.; and (c) Re-assert India's commitment to combat the drug menace in a holistic manner." 21. Consequently, both the Manual, to which a reference has been made above, and paragraph 17 of the National Policy must furnish useful guides to the Narcotics Commissioner for the discharge of his functions. Undoubtedly, neither the Manual nor the National Policy can override a document such as the Import Policy which has statutory force but, at the same time, the Narcotics Commissioner in the discharge of his functions must be guided by the role, which has been ascribed to him by both the aforesaid documents. The Manual specifies that the registering of import contracts involves verification of the legitimacy of the transaction and of the genuineness of the importer and that other government agencie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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