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TMI Blog2016 (4) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... as it prohibits and restricts him to carry on his import business. Therefore, the petitioner has a right to question the impugned public notice issued by the fourth respondent especially when it violates the fundamental rights guaranteed to the petitioner as enshrined under Article 14 and 19 (1) (g) of The Constitution of India to carry on his legitimate business of import of poppy seeds and other goods. In the absence of any amendment to Import-Export policy framed by Central Government by publishing a notification in the official gazzette, it has to be held that the fourth respondent is not empowered to impose the conditions in the impugned public notice. Also, Article 39 (2) of the Constitution of India will not in any way be a source of power or provides a spring board to the fourth respondent to impose the conditions in the impugned public notice. - Decided in favour of petitioner - Writ Petition No. 5019 of 2016 - - - Dated:- 5-4-2016 - R. Subbiah, J. For the Petitioner : Mr. Vijay Narayan, Senior Advocate for Mr. B. Satish Sundar For the Respondents : Mr. G. Rajagopalan, Additional Solicitor General for Mr. B. Rabu Manohar ORDER The challenge in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the provisional country caps were fixed relating to import of poppy seeds from Turkey, China and Crezh Republic. It was further mentioned in the said communication that the provisional country caps fixed would be apportioned to various applicants by the fourth respondent on first come first serve basis till the quantity of the country caps is reached provided the maximum quantity to be registered in respect of any particular applicant in the first instance would be 180 metric tons or 10 container loads. In the affidavit filed in support of the writ petition, reference was made to various similar public notices issued by the fourth respondent in violation of the Article 14 and 19 (1) (g) of The Constitution of India. In similar fashion, according to the petiitoner, the impugned public notice dated 27.01.2016 was issued relating to import of poppy seeds from China in clear violation of Article 14 and 19 (1) (g) of The Constitution of India. 3. Mr. Vijay Narayan, learned senior counsel appearing for the petitioner attacked the impugned public notice issued by the fourth respondent on the following grounds:- (i) The impugned public notice issued by the fourth respondent is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ium poppy seeds has been legally grown in that country as per the requirements of International Narcotic Control Burean and (iii) whether the import contract is registered with him prior to import. According to the learned Senior counsel for the petitioner, except the above three conditions, the fourth respondent has no right, power or jurisdiction to impose any other conditions contrary to the policy framed by the Central Government. The functions of the fourth respondent is only to satisfy that the import of the poppy seeds is done from one of the designated countries, the importer has a certificate from the competent authority of the exporting country that the opium poppy has been legally grown in that country and the import contract has been registered under him prior to import. Thus, apart from the three conditions stipulated above, the fourth respondent has no authority or right to impose any other conditions. In other words, the fourth respondent has to confine himself with the above three functions that are entrusted with him. The fourth respondent has to merely register the contract and he cannot act as a controlling authority to impose conditions for import of goods. In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration of sales contract for a period of two years. (v) The learned Senior counsel would contend that in paragraph 3 (ii) of the impugned public notice, it was indicated that registration of contract will have to be made only upto 11.02.2016, which is an unilateral condition imposed by the fourth respondent and for imposing such condition, the fourth respondent has no source or power. Similarly, in para No. 3 (iii), the fourth respondent prescribed a maximum quantity of 90 MTs for import and by virtue of imposing such condition, the fourth respondent amended the policy of Central Government on his own. Further, the procedure relating to adopting drawal of lots and the requirement that each importer can submit only one application and if more than one is submitted such applications will be rejected etc., have been unilateral and not traceable to any delegation or authority vested with the fourth respondent by the Central Government. According to the learned Senior counsel for the petitioner, the fourth respondent, in the impugned public notice, has issued number of conditions/ restrictions by which he had substantially amended the statutory policy of the Government of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Trade (Development and Regulation) Act, 1992. As per Section 5, the Central Government alone can formulate and announce the Exim Policy and resort to amend it from time to time. 7. Countering the submissions of the learned Senior counsel for the petitioner, the learned Additional Solicitor General appearing for the respondents 1 to 4, relying on the counter affidavit of the fourth respondent, opposed the writ petition by contending that the impugned public notice has been validly issued by the fourth respondent in exercise of discharge of statutory functions which are consistent with the purpose of implementing the policies of the Union Government. According to the learned Additional Solicitor General appearing for the respondents 1 to 4, since the number of applicants for poppy seeds were likely to increase manifold, it was decided by the first respondent to allow each eligible applicant to register their sale contract for 90 metric tonnes. The idea was to ensure that either all or maximum number of applicants should get an opportunity to import poppy seed from China. This was only to avoid the possibility of cartelization and hoarding of poppy seeds. It is no doubt that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at such imports are within the quantity as produced from the legally cultivated opium seeds. Keeping this in view, a quantitive restriction is placed on the total quantity of imports permissible from designated countries. Therefore, the conditions imposed in the public notice, which is impugned in this writ petition, are in accordance with the observations made by the Allahabad High Court in the order dated 29.11.2013 and it cannot be said that it had unreasonably imposed restriction on import of poppy seeds. 10. The learned Additional Solicitor General appearing for the respondents 1 to 4 further submitted that it is true that the earlier public notice No.7/2015 issued by the fourth respondent on 14.09.2015 was subjected to challenge before this Court in WP No. 29806 of 2015 and this Court quashed the same on 05.02.2016. However, a reading of the order dated 05.02.2016 would indicate that this Court quashed the earlier public notice which relates to import of Poppy Seeds from Turkey and not from China. Further, the earlier public notice was quashed by this Court only to the extent to which it categorised the importer as A and B category on the basis of the quantity of import of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient, the method of drawal of lots has been adopted inter alia to ensure transparent selection of applicants. As regards the petitioner, he is not an applicant for registration of contracts for import of Poppy seeds from China in response to the impugned public notice. Therefore, the petitoiner has no locus standi to file this writ petition. Even in the past also, the petitioner never applied for import of poppy seeds from Chinna. Therefore, the learned Assistant Solicitor General appearing for the respondents 1 to 4 prayed for dismissal of this writ petition. 14. Mr. P.S. Raman, learned senior counsel appearing for the respondents 5 to 7, who were subsequently impleaded in this writ petition, would contend that the respondents 5 to 7 are regularly importing White poppy seeds from China which are non-narcotic in nature. The respondents 5 to 7 are private entities engaged in the business of facilitating import and export of spices, including poppy seeds into India interalia remain as an interface between Government and Trade. The respondents 5 to 7 have also entered into import contract for various quantities of White Poppy seeds from China. Earlier, the fourth respondent iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice for effective implementation of the policies of the Government and it needs no interference by this Court. 15. The learned senior counsel for the respondents 5 to 7 would further contend that the earlier public notice No.7 of 2015 issued by the fourth respondent was subjected to challenge in WP No. 29806 of 2015 and it was quashed by this Court only on the ground that the classification of importers under category A and B was not justified. In the said order, this Court directed the fourth respondent to come up with better policy to ensure level playing field to all importers. In the present notification, which is impugned in this writ petition, there is no such classification made by the fourth respondent. The public notice in question permits all the importers to participate in the import of goods without any restriction or discrimination. The restriction on quantity prescribed would only open the doors of opportunity to more number of applicants and it would boost the import trade. It is further stated that such conditions would only ensure transparency and remove discrimination among the importers. According to the learned senior counsel for the respondents 5 to 7, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government. In this regard, Sections 3, 5 and 6 of the Foreign Trade (Development and Regulation) Act, 1952 have to be looked into and they are extracted hereunder:- 3. (i) The Central Government may, by order published in the official gazzette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (ii) The Central Government may also, by order published in the official gazzette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods. (iii) All goods to which any order under sub-section (2) applies shall be deemed to be goods the import of export of which has been prohibited under Section 11 of the Customs Act, 1962 and all the provisions of that Act shall have effect accordingly. 5. The Central Government may, from time to time, formulate and announce by notification in the official gazzette the export and import policy and may also, in like manner, amend that policy. 6. (i) The Central Government may appoint any person to be the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions which are stipulated in Chapter 12 of Exim Code 1207 91 00 mentioned above, in the impugned public notice relating to drawal of lots, restricting the quantity of import, prescribing time frame for receipt of applications etc., and such conditions would only amount to varying, modifying and virtually amending the policies of the Central Government to which the fourth respondent is not empowered to. 20. A reading of Section 5 of the Foreign Trade (Development and Regulation) Act, 1952 would indicate that the Central Government may, from time to time, formulate and announce the Exim Policy. Such announcement or formulation of policy has to be made by way of publication of a notification in the official gazzette. A notification in the official gazzette is therefore necessary for formulating a policy or for making amendment to the existing policy. In the absence of any such notification published in the official gazzette, the imposition of conditions by the fourth respondent in the impugned public notice is clearly without jurisdiction and it amount to amending the Exim Policy. Therefore, the contentions urged on behalf of the petitioner that the fourth respondent has no juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be said that the fourth respondent is not empowered to impose such conditions. Such a contention cannot be accepted. The power conferred on the fourth respondent as Narcotic Commissioner exercisable under Section 5 (3) of the NDPS Act cannot be extended to or stretched to exercise powers under the Exim Code. The object with which NDPS Act has been framed is to have a statutory control over narcotic drugs through out India and to prohibit and/or regulate the trafficking of illicit drug and drug abuse at national and international level. As per the provisions of NDPS Act, even a mere possession of narcotic drugs or psychotropic substance would attract stringent punishment and as a Officer appointed by the Central Government, the fourth respondent can exercise all powers and functions relating to superintendence and production of opium. Whereas, the object with which the Import and Export policy framed by the Central Government is to enhance and boost trade relating to poppy seeds, which are non-narcotic in nature and thereby improve the economic development of the Country. For this purpose, certain powers are vested on the fourth respondent under Exim Code to have a check and cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort contract in view of the multiple conditions imposed by the fourth respondent in the impugned public notice. In such view of the matter, I am of the view that the petitioner has a genuine grievance to be ventilated as against the impugned public notice issued by the fourth respondent inasmuch as it prohibits and restricts him to carry on his import business. Therefore, in my considered view, the petitioner has a right to question the impugned public notice issued by the fourth respondent especially when it violates the fundamental rights guaranteed to the petitioner as enshrined under Article 14 and 19 (1) (g) of The Constitution of India to carry on his legitimate business of import of poppy seeds and other goods. 26. The learned Senior counsel for petitioner has drawn the attention of this Court to the order dated 29.11.2013 passed by the Allahabad High Court in PIL No.22067/2013 wherein an identical public notice issued by the fourth respondent was subjected to challenge. The writ petition was filed by Ayurveda Sewashram Kalyan Samithi through its Secretary against the Government of India and others. The writ petition was disposed of by holding that import and export polic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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