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TMI Blog2015 (1) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... , the impugned communication was served on the petitioner with one sentence mentioning denial of re-exporting the consignment and admittedly, no reasons have been assigned in the impugned proceedings, dated 24.7.2012. It is clear that the re-export of the material can be made based on the declaration of the Director of testing Lab that the said drugs are not of substandard. In the present case, the Deputy Drugs Controller was of the view that the material itself is ‘spurious drugs’ since it has been imported by the petitioner without adequate registration and import licence and the documents furnished by the petitioner are forged and fake. For the risk of repetition, this Court reiterates that this Court cannot venture upon the issues, viz., whether the petitioner has imported the consignment based on the forged and fake documents from unregistered source contrary to the provisions of the Act and whether the detained material is a ‘spurious’, etc., since these are the allegations levelled against the petitioner, are the disputed questions of fact and are subject matter of the prosecution already launched against the petitioner. Therefore, it is not appropriate for the Deputy Dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of entry for clearance of the same. However, it appears that the said Zhejiang lodged a complaint dated 2.4.2009 before the Drugs Controller General of India and hence, the certificates referred to by the petitioner were sent to Zhejiang to verify the authenticity of the same. 4. While so, during the course of examination, the Assistant Drugs Controller, vide opinion dated 26.5.2009 stated that Zhejiang is claimed as the manufacturer of the consignment as per the documents submitted by the petitioner while filing the Bill of Entry, however, the said Zhejiang has clarified to the respondents that the goods of the bill were neither produced nor supplied by them to the said foreign supplier and that the certificate of analysis, batch release certificate were not theirs and hence, the said documents were forged and fake. Thus, the material imported is not from a registered source as required under the Act and Rules. For this reason, the material was not permitted for release and it was detained. Thereafter, the petitioner requested for re-export of the consignment. However, by the impugned proceedings, dated 24.7.2012, the second respondent informed the petitioner that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition. 6. Heard the learned senior counsel appearing for the petitioner and the learned counsel appearing for the respondents and perused the entire record. 7. Assailing the impugned proceedings, Mr. Arvind P.Datar, learned senior counsel would foremost contend that the impugned decision of the second respondent in rejecting the claim of the petitioner for re-export the consignment in two lines without giving sufficient reasons for such rejection, is arbitrary and such a non-speaking decision cannot stand and is liable to be set aside. He also contended that the before taking such decision in refusing the permission to re-export the consignment, no opportunity was afforded to the petitioner, which violates the principles of natural justice. He pointed out that as per Rule 41 (1) of the Rules, the petitioner has a statutory right of re-export and the second respondent has not failed to consider the recommendation of the Assistant Drugs Controller, who by letter dated 2.6.2009, has given NOC for re-exporting the subject material to the supplier, after collection of samples. He also contended that the petitioner had valid licence to import Progesterone manufactured by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heard the learned senior counsel for the petitioner and the learned senior Central Government standing counsel for the respondents and perused the entire records. 10. It is not in dispute that the petitioner has filed a Bill of Entry No.220583 dated 21.5.2009 for the clearance of 400 kgs of Progesterone Micro, which according to the petitioner, manufactured by M/s.Zhejiang, which is a registered company having valid certificate issued under Rule 27-A of the Act. On verification, according to the respondents, it was found that the said consignment purported to be imported from an unregistered source and hence, the same was termed as spurious under Section 9-B(e) of the Act and it was detained. It is also the case of the respondents that the relevant documents, viz., certificates of company and analysis, batch release certificates, etc., were found to be fake and forged by the petitioner for the purpose of the transaction. It is not in dispute that prosecution proceedings were also initiated by the CBI, Economic Offences Wing, Chennai the same were pending before the XV Metropolitan Magistrate, George Town, Chennai. 11. While exercising its extra-ordinary jurisdiction confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o., Mumbai is enclosed for your reference. This may be accepted and in compliance with Rule 41(1) Drugs Cosmetics rules, the importer M/s.J.B.Khokhani Co., Mumbai Envee Druges Pvt.Ltd., may be permitted to re-export the Progesterone imported under B/E No.220583, dated 21.5.2009 to M/s.Hongkong Tiangao International Economic Development Corporation Ltd., Hongkong. 14. A perusal of the above, it is clear that the Asst.Drugs Controller has given nod for re-export of the consignment. However, in the meanwhile, criminal proceedings have been initiated against the petitioner since the imported goods were deemed as spurious. On 16.2.2012, the petitioner again has made a request to the respondents, seeking permission to re-export the consignment. Pursuant to the same, the second respondent addressed a letter, dated 24.2.2012 to the Superintendent of Police, CBI, Chennai, seeking advice on the feasibility of allowing re-export of the consignment and sent a communication to the petitioner on 9.3.2012 to await till the communication is received from CBI. Thereafter, by letter dated 13.3.2012, the Superintendent of Police, CBI, Chennai has sent a communication t the second respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters stood thus, the second respondent, by letter dated 24.7.2012 impugned in this writ petition, communicated the following to the petitioner. With reference to the above subject, it is informed that the re-export permission sought vide your letter dated 15.02.2012 is denied. 18. A perusal of the above communication, it is not known on what grounds, the second respondent has taken the decision to deny the permission sought for by the petitioner for re-exporting the consignment. No reasons have been assigned in the impugned communication to enable the petitioner to workout his further remedy if any or atleast to know for his satisfaction as to why the decision has gone against him. However, strangely, the respondents have given reasons in the counter affidavit, as stated supra, by enclosing the proceedings of the Deputy Drugs Controller (India), CDSCO, South Zone, wherein, it is stated that the department had already obtained permission to prosecute the importer for having imported material without adequate registration and import licence and since, the contraventions attract the provisions of Drugs Cosmetics Act and Rules and as per Section 14 of the Act, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanj (1976 (3) SCC 716): 27. Referring to Gordhandas Bhanj (1976 (3) SCC 716, it was further observed: (SCC p. 417, para 8) Orders are not like old wine becoming better as they grow older. (emphasis added) 20. It is well settled law that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak and it must not be like the inscrutable face of a sphinx. Recording of reasons operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power and it re-assures that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harv. L. Rev. 731-37.) (n) Since the requirement to record reasons emanates from the bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Collector, and the Customs Collector shall forward the representation with a further sample to the licensing authority, who after obtaining, if necessary, the report of the Director of the Central Drugs Laboratory, shall pass orders thereon which shall be final. 24. A perusal of the above, it is clear that the re-export of the material can be made based on the declaration of the Director of testing Lab that the said drugs are not of substandard. In the present case, the Deputy Drugs Controller was of the view that the material itself is spurious drugs since it has been imported by the petitioner without adequate registration and import licence and the documents furnished by the petitioner are forged and fake. For the risk of repetition, this Court reiterates that this Court cannot venture upon the issues, viz., whether the petitioner has imported the consignment based on the forged and fake documents from unregistered source contrary to the provisions of the Act and whether the detained material is a spurious , etc., since these are the allegations levelled against the petitioner, are the disputed questions of fact and are subject matter of the prosecution already launch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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