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TMI Blog2018 (2) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... things, to poppy seeds. The poppy seeds is governed by Exim Code heading 1207 91 00. The policy contemplates import of poppy seeds subject to certain conditions which have been specified - condition No.3 contained three stipulations, by amended notification, condition Nos.(a) and (b) are not altered. Condition No.3(c) as amended, in addition to existing one is, “All import contracts for this item shall compulsorily be registered with the Narcotic Commissioner, Gwalior, prior to import in accordance with the guidelines issued by the Department of Revenue, which may, inter-alia, include fixing of country caps, imposing quantitative restrictions, if any, per importer, or any other relevant provisions as deemed necessary for implementation of National Policy on Narcotic Drugs and Psychotropic Substances”. On careful perusal of the provisions of Section 3 of the Foreign Trade Act, it makes it clear that the power conferred under Section 3(1) of the Act is not restricted merely to prohibiting or restricting imports at the point of entry but extends also to controlling the subsequent disposal of the goods imported. It is for the appropriate authority to consider the policy, which must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l public in India at large. Therefore the interest of the country prevails at large, but not individual. On that ground also, the writ petitions are liable to be dismissed. The Central Government taking into consideration all the surrounding circumstances and the fact that poppy seeds is a special produce, amended condition No.3(c) of the import policy as a policy decision exercising its legislative domain in order to distribute poppy seeds to all the applicants who aspire for import of poppy seeds and in order to avoid monopoly by any one of the applicants. The petitioners have not pointed out any malafide on the part of the Central Government while amending the condition No.3 of the import policy. Further, there is no violation of fundamental rights of the petitioners guaranteed under Article 19(1)(g) of the Constitution of India. Therefore the reasonable restriction imposed by the Central Government is within the parameters of Article 19(6) of the Constitution of India and in the interest of consumers at large - the petitioners have not made out any case to interfere with condition No.3(c) of the amended import policy issued by the Central Government exercising the powers und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly a Writ of Certiorari calling for the records relating to the order of the 1st Respondent in Notification No.17/2015-20 dated 29.07.2016 (Annexure-T), quash the same and pass such other and further orders as may be deemed fit and proper and thus render justice. 3. In W.P. No.65486-65487/2016, the petitioner M/s Om Traders has sought for the following reliefs: a) Issue a writ or an order in the nature of a writ of certiorari, calling of the records of the Respondents, more particularly the 4th respondent and quashing the impugned Guidelines for registration of sale contract for import of poppy seeds from Turkey vide F.No.N99014/31/2012/NC-1 dated 28.11.2016 and the impugned public Notice No.PS-15/2016 dated 05.12.2016, for import of Poppy Seeds from Turkey (Annexures-AK and AL) issued by Respondents No. 2 and 4 and thus render justice. 4. Petitioner in W.P. Nos.58197-58198/2016, 42295-42297/2016 and 65486-65487/2016 is one and the same. The facts in all these writ petitions are similar. For the sake of convenience, facts are referred to as in Writ Petition Nos.58197-58198/2017. I FACTS OF THE CASE 5. Petitioner is a registered dealer under Karnataka Val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched. To implement this decision, Narcotics Commissioner will have to be in regular touch with the Customs authorities of the ports of import about the quantum of imports of poppy seeds already made in the year. He will also need to inform the ports when the cap for any particular country is reached so that no further imports from the said country take place from any port. ii) For the FY 2014-15 onwards, the following steps will be taken by the Narcotics Commissioner: (a) He will determine the exportable surplus of the exporting countries of poppy seeds so as to arrive at the country caps. (b) Poppy seeds import contracts will be registered on first come first served basis, till the caps for the respective countries is reached. (c) The import contracts will be valid for only 3 months. If the quantity mentioned in the contract is not imported in this period, or only partly imported, the said quantity or the balance quantity will be released and can be allotted to other importers, again on first come first serve basis. (d) The Narcotics Commissioner will seek the country of origin certificate, even at the time of registering of import contracts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requested to furnish details of the poppy seeds imported by them duly endorsed by the Customs authorities. 12. The petitioner further contended that the details of total quantity of poppy seeds imported by 20.5.2015 and the details of imports alongwith the documents duly endorsed by the customs authorities were to be sent within 15 days to the e.mail address specified in the said public notice, failing which it was informed that their request for registration for import of poppy seeds during the year 2015-16 would not be considered and that they may be blacklisted for the future and vide public notice, all concerned with the import of poppy seeds were informed that no application for registration of import contracts would be received/accepted by hand or by post, before the dates specified for the receipt of the application for registration of sale contracts for import of poppy seeds. It is further stated in the said public notice that the period for receipt of applications would be notified in the website of Respondent No.4 and that applications otherwise would be returned to the parties concerned and shall not be placed on record. 13. It is further case of the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India in W.P. No.29806/2015 and the Madras High Court vide its order dated 5.2.2016 quashed public notice as being opposed to constitutional guarantees and violative of Article 14 and Article 19(1)(g) of the Constitution of India. 17. It is further case of the petitioner that the Madras High Court in Writ Petition No.5019/2016 has categorically held that the 4th respondent has no authority either to formulate the policy or ration or allocate specific quantities to importers of poppy seeds, as was being done in the past and it was in such context that the public notices attributable to the 4th respondent in respect of the import of poppy seeds from China, Turkey, Czech Republic and other designated countries were struck down. 18. It is further case of the petitioner that aggrieved by the notification amending the import policy in respect of poppy seeds, contrary to statutory provisions and judicial pronouncements, Writ Petition No.42295-97/2016 is filed challenging the jurisdiction of the 3rd respondent to issue the said notification as well the authority under which the powers were delegated to the 4th respondent. 19. It is further case of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner who is at serial No.292 is beyond the first 206 and it would therefore not be entitled to get its contract registered. Therefore petitioner will not be able to do business in poppy seeds this year in the absence of import and if the registration of import contract is left to draw of lots in future also the petitioner does not have even a remote chance to continue his business. Hence W.P. Nos.22952- 22955/2017 are filed for the reliefs sought for. II OBJECTIONS FILED BY THE CENTRAL GOVERNMENT 22. The Central Government filed objections to all these writ petitions contending that the 4th respondent issued notification dated 10.8.2015 wherein it had called for registration of contracts for import of poppy seeds from Turkey and consequentially issued another notification dated 18.8.2015 wherein it had detailed the list of applicants eligible for registration as per 1st respondent s letter dated 5.8.2015. It is contended that W.P. No.36202/2015 filed by M/s Unik Traders challenging the notification dated 10.8.2015 was disposed of by this Court as having become infructuous. 23. It is also contended that a new public notice was issued by the 4th respondent, which pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht by the petitioners seem to be with a motive to create demand and thereby lead to raise in prices. It is also stated that the petitioners are stalling the process of import of poppy seeds on one or the other pretext by filing false and frivolous writ petitions and are in fact coming in way of functioning of respondents, which cannot be allowed to legally sustain and sought for dismissal of the writ petitions. III RIVAL CONTENTIONS OF THE PARTIES 26. I have heard the learned counsel for the parties to the lis. 27. Sri D.L.N.Rao, learned Senior Counsel for the petitioner in W.P.Nos. 58197-58198/2016 c/w 42295- 42297/ 2016, WP Nos.65486-65487/2016, contended that, the power of the Central Government to make provisions relating to imports and exports, under Section 3(1) of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as the Foreign Trade Act ). Section 5 of the said Act pertains to Foreign Trade Policy and Section 6 pertains to Appointment of Director General and his functions. While reading the provisions of Sections 3 and 4, learned Senior Counsel, contended that the Central Government, may, by the order published in the official g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with Section 9A(4)(b) of the Foreign Trade Act and it is not the case of the Central Government that in order to protect the interest of Domestic Industry, restriction is made. While reading the provisions of Section 5 and 6 of the Act, he would contend that under Section 6(3) of the Act, the power of the Central Government to proceed with the provisions of Section 3 and 5 is excluded. The impugned notification dated 29.07.2016 is issued under Section 3 of the Act for a period of 5 years and before conclusion of 5 years, the impugned amendment came to be issued within one year. Condition No.3(c) imposing quantitative restriction, if any, for importer is not permissible. 31. The learned Senior Counsel further contended that para 4 of the notification dated 29.07.2016 as to the effect of the notification issued by the Director General of Foreign Trade delegating the power to Revenue Department to frame the guidelines regarding alternative contracts with Narcotic Commission, Gwalior for import of poppy seeds is totally without jurisdiction and the Act does not empower such power. As per Annexure-AC1, Schedule-I, Import Policy under Chapter-12 Exim Code 1207-91 whereunder poppy s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 33. The learned Senior counsel further contended that the affidavit which has been filed by DGFT states that registration of import contracts is the responsibility of CBN. However, Customs field formation at the point of entry are responsible for implementing the import policy and policy conditions which are prescribed. Customs Authorities are responsible for verifying the certificate from the competent authority of the exporting country which is required to be produced by the importer at the time of import of poppy seeds. The importer is required to file a copy of such certificate along with other documents seeking clearance of the goods. Customs field formations are also responsible to ensure that poppy seeds are not imported from any country other than those designated in the notification dated 05.10.2012. 34. He further contended that the Registered Certificate dated 30.03.2016, Thunga Trading Company at Sl. No.5 and 6 wherein it is stated that the importer will have to submit Certificate of Origin issued by the Competent Authority of exporting country that opium poppy have been grown legally in that country as per the requirement of International Narcotics Control Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l cases or in specified classes of cases and subject to such exceptions, if any. 36. The learned Senior Counsel for petitioners would further contend that the provisions of Section 3 (2) and 3(3) of the said Act refers only to goods referred under Sub-Section (2) deemed to be import or export. Sub-clause (4) of Section 3 of the said Act was inserted with effect from 27.8.2010 wherein it also refers that, no permit or licence shall be necessary for import or export of any goods. It was further contended that any order passed under Section 3 (2) of the said Act by the Central Government should necessarily follow the provisions of Section 19(3) of the Act and it would not apply to the notification issued by the Central Government under Section 5 of the said Act. He stressed the words specified under Section 3(2), 3(3) and 3(4) of the said Act i.e., import and export of goods especially the goods of poppy seeds. The provisions of Section 3(2), 3(3) and 3(4) of the said Act apply only to goods and not for individual importer as contemplated in the amended conditions No.3(c) of the Policy. 37. The learned Senior Counsel further contended that the provisions of Section 11 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of Section 6(3) of the Foreign Trade Act. He would further contend that while registering the application, the Narcotic Commissioner, Gwalior, never insisted the applicants licitly/legally grown certificate of the Officer of the Turkey and he cannot insist the applicant while importing the poppy seeds. He would further contend that the impugned notification dated 29.7.2016 is issued in utter violation of the provisions of Sections 3(4) and 6(3) of the Foreign Trade Act. He would further contend that under Clause 17 of the National Policy on Narcotic Drugs and Psychotropic Substances, all contracts for import of poppy seeds shall be compulsorily registered with the Narcotic Commissioner. Before registering such contracts, the Narcotic Commissioner shall satisfy the Country from which the poppy seeds are proposed to be imported legally cultivates opium poppy and can produce the quantity of seeds which are sought to be imported. Therefore, an individual application shall not be beyond the Country Cap fixed by Exporting Authority and not total of all the applicants. He would further contend that the notification dated 30.3.2016 states that the registration of the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vited the attention of the Court to the dictum of the Hon ble Supreme Court in the case of Union of India vs- Asian Food Industries reported in (2006) 13 SCC 542 at para- 26 holding that a citizen of India has a fundamental right to carry out the business of export, subject, of course to the reasonable restrictions which may be imposed by law. Such a reasonable restriction was imposed in terms of the 1992 Act. At para-29 of the said judgment it has been held that undisputably, the power under Section 3 of the 1992 Act is required to be exercised in the manner provided for under Section 5 of the 1992 Act. The Central Government in exercise of the said power announced its Foreign Trade Policy for the years 2004-2009. It also exercised its power of amendment by issuing the Notification dated 27.6.2006. Export of all commodities which were not earlier prohibited, therefore, was permissible till the said date. He also invited attention of the Court to the law declared by the Hon ble Supreme Court in the case of Parisons Agrotech Private Limited and Another vs- Union of India and Others reported in (2015) 9 SCC 657 especially para-26 and contended that the said dictum was prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for each applicant, only first 206 applicants in the priority list dated 27.4.2017 will be entitled for registration of the import contracts out of 471 applicants. 43. The learned Senior Counsel further contended that the subject of quantitative restrictions is dealt in Chapter IIIA of the Foreign Trade Act and the foreign trade policy as contemplated under Section 5 of the Act should be in consonance with the provisions of Section 9A of the Act. The provisions of Chapters II and IIIA should go together and the Government cannot choose only Chapter-II ignoring Chapter-IIIA. Chapter-IIIA was inserted by Act No.25/2010 w.e.f. 27.8.2010 and that Chapter-II is the mother of Chapter-IIIA of the Act. The learned Senior Counsel further contended that the Central Government has not exercised the powers under Section 9A of the Foreign Trade Act while passing the impugned order. The power under Section 3 or 5 of the said Act cannot be exercised ignoring the provisions of Section 9A of the Act. The powers exercised by the Central Government restricting 90 metric tones per importer without following the procedure as contemplated under Section 9A of the Act cannot be sustained and there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State from making any law. 45. In support of his contentions with regard to statutory interpretation, learned senior counsel invited the attention of the Court to the dictum of the Hon ble Supreme Court in the case of UNION OF INDIA .vs. SHIV DAYAL SOIN SONS (P) LIMITED reported in (2003)4 SCC 695 wherein the Hon ble Supreme Court held as under: 6 . As a canon of statutory interpretation, expressio unius est exclusio alterius, what is expressly mentioned in one place but not in another must be taken to have been deliberately omitted. The argument raised by the learned counsel for the appellant proceeds on assumption that a house by its meaning and definition is capable of being used exclusively for residential purposes and not for non60 residential purposes which is not a correct interpretation. 46. Therefore he would contend that when the original national policy or the provisions of the Foreign Trade Act does not contain any quantitative restriction, the same cannot be imposed by way of amendment which is erroneous and contrary to the material on record and it is in violation of Article 19(1)(g) of the Constitution of India. The learned senior counsel for R5 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was granted on 29.12.2013. The Allahabad High Court at para-21 while referring to Manual and paragraph-17 of the National Policy has held that undoubtedly neither the Manual nor the National Policy can override a document such as the Import Policy which has statutorily 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 National Policy emphasizes that before registering such contracts, the Narcotics Commissioner must satisfy himself that the Country from which the poppy seeds are proposed to be imported (i) legally cultivates opium poppy; and (ii) can produce the quantity of seeds which are sought to be imported. The statements in both these policy documents constitute a matter of high public policy for the Union Government in its stated object to combat the international trade in narcotic drugs and psychotropic substances. Central Bureau of Narcotics cannot denude itself of the obligation and function which has been cast upon the Narcotics Commissioner. He further contended that the Notification dated 5.10.2012 was for the financial year 2013-14 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... increased quantities and under such conditions as to cause or threaten to cause serious injury to domestic industry, it may, by notification in the Official Gazette, impose such quantitative restrictions on the import of such goods as it may deem fit. Admittedly, the Central Government has exercised powers under Section 3(2) and not under Section 9A of the said Act. Therefore, the threat to domestic industry would not arise. It was also contended that Sub-section (3) of Section 3 of the Foreign Trade Act stipulate that all goods to which any Order un sub-section (2) applies shall be deemed to be goods the import or 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. 53. He further contended that clause 17 of the National Policy on Narcotic Drugs and Psychotropic Substances allows import of poppy seeds from any country provided it has originated in any of the countries authorized internationally to grow opium poppy for export and that it has been legitimately cultivated. No import will be allowed from countries where opium poppy is not legitimately cultivates. All contract for import of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised in the WTO against India complaining about the Quantitative Restrictions so imposed, but India justified the action that the balance of payment obligation demanded such qualitative restrictions and the Central Government introduced Chapter III-A (Section 9-A) to the Foreign Trade Act with effect from 27.8.2010 in order to fulfill the international obligation in India. 55. The learned Additional Solicitor General further submitted that an analysis of Section 9-A of the Foreign Trade Act would indicate that the Central Government can impose Qualitative Restrictions: i) only after a thorough study and enquiry of the serious injury that is to be caused to the domestic industry, on account of increased quantity of import of any product; ii) That the Quantitative Restriction can be imposed for a period of four years with such extensions as the Central Government deems fit, which in no case can extend beyond a period of ten years from which date the restriction was first imposed; iii) The Quantitative Restriction can be imposed only on a developed Country. Therefore, he would contend that the impugned order passed by the Central Government is only in exercise of pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts who do not receive any allocation due to the provisional country cap getting exhausted shall be put on waitlist for consideration after final country cap is determined. IV. Allocation after Final Country Cap: (ii) The differential quantity between the quantity registered after allocation of the provisional country cap less the quantity surrendered by the applicants, if any, and final country cap shall be allocated in the following manner: (a) Applicants who were put on waitlist due to the provisional country cap getting exhausted shall be allowed, in the order of the priority list drawn at the time of the allocation of provisional country cap, to register sales contracts for the quantity applied for, or ninety (90) MT, whichever is less. (b) Quantity still available for allocation, after allocation to the applicants in waitlist as specified at IV (ii)(a) above, shall be allocated to those applicants who had applied for registration of more quantity but were allowed registration for less quantity. Such applicants shall be allowed, in the order of the priority list drawn at the time of the allocation of provisional country cap, to register sales contracts for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any time. The Hon ble Supreme Court further held that, be that as it may, on the basis of an Import Trade Policy an applicant has no absolute right, much less a fundamental right, to the grant of an import licence. 59. He also contended that any Policy matter, the Court should not interfere. In support of his contentions, he relied upon the judgment of the Hon ble Supreme Court in the case of Sher Singh and others vs. Union of India and others reported in (1995)6 SCC 515 paragraph 7, to the effect that, the Court should be slow in interfering with matters of government policy except where it is shown that the decision is unfair, malafide or contrary to any statutory directions. There will be no justification for the Court to interfere with the policy of the Government merely on the ground of change in the policy. He further relied on the judgment of the Hon ble Supreme Court in the case of Union of India and another vs. International Trading Company and another reported in (2003)5 SCC 437, paragraph 22 and 23, to the effect, If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Addl. Solicitor General, would contend that the notification dated 29.07.2016 issued by the Central Government in exercise of powers under Section 3(2) of the Foreign Trade Act. He would further contend that earlier, petitioner filed W.P.No.36718/2016 for a writ of mandamus to form a clear cut policy. When the State Government has formed clear cut policy, the petitioner has no grievance at all. He further contended that out of 471 applicants, only 4 applicants have challenged the validity and they are habitual litigants. Out of 471 applicants, 326 applicants are permitted to import poppy seeds. Therefore, he sought to dismiss the writ petitions. IV - POINTS FOR DETERMINATION 64. In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the points that arise for consideration in these writ petitions are: i) Whether the Central Government is justified in amending the condition No.3(c) of the import policy, imposing quantitative restriction, if any per importer under the provisions of Section 3 of the Foreign Trade (Development and Regulation) Act, 1992? ii) Whether the issuance of guidelines for registration of sale contracts f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide for the development and regulation of foreign trade by facilitating imports into, and augmenting exports from, India and for matters connected therewith or incidental thereto. Chapter-II of the Foreign Trade Act deals with the powers of Central Government to make order and announce (Foreign Trade Policy). Under the said Chapter, Section 3 deals with powers to make provisions relating to imports and exports; Section 4 deals with continuance of existing orders; Section 5 deals with Foreign Trade Policy and Section 6 deals with appointment of Director General and his functions. Chapter-IIIA is in respect of quantitative restrictions whereunder Section 9A deals with power of Central Government to impose quantitative restrictions. Under Chapter V, Section 15 deals with the provisions of appeal; Section 16 deals with Review and Section 17 deals with powers of Adjudicating and other Authorities. Under Chapter VI, Section 18 deals with protection of action taken in good faith; Section 18A deals with application of other laws not barred and Section 19 deals with power to make rules by the Central Government. 68. Keeping in view the object and the powers of the Central Government on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concerned is also acceptable. Hence the petition lacks merit and is hereby dismissed. However, the options suggested by the petitioner do not appear to be implausible of adoption, which the respondents should also take into consideration for future application and implementation in regulating trade . 70. It is also relevant to state that the very public notice dated 14.09.2015 was also subject matter of W.P.No.29806/2015 before the High Court of Judicature at Madras. The learned single Judge of the Madras High Court, after hearing both the parties, by the order dated 05.02.2016, allowed the writ petition. The impugned notice dated 14.09.2015, in so far categorization as A and B category was set-aside and reserved liberty to the Narcotic Commissioner, Central Bureau of Narcotics, Gwalior, to issue fresh notice as per law. In the meanwhile, very present petitioner-M/s Om Traders, being aggrieved by the order of dismissal of W.P.No.42816/2015 dated 05.01.2016 filed W.A.No. 132/2016. On the statement made by the learned Addl. Solicitor General that, the notification categorizing the importers in two categories, i.e., A and B was withdrawn by the Government and Government has decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting one is, All import contracts for this item shall compulsorily be registered with the Narcotic Commissioner, Gwalior, prior to import in accordance with the guidelines issued by the Department of Revenue, which may, inter-alia, include fixing of country caps, imposing quantitative restrictions, if any, per importer, or any other relevant provisions as deemed necessary for implementation of National Policy on Narcotic Drugs and Psychotropic Substances . That is challenged in the present writ petitions. VI. CONSTITUTIONAL PROVISION 74. It is also undisputed fact that India is a signatory to Single Convention on Narcotic Drugs, 1961. The National Policy on Narcotic Drugs and Psychotropic Substances notes that narcotic drugs and psychotropic substances have several medicinal and scientific reasons, but they can be and are also abused and trafficked. India s approach towards narcotic drugs and psychotropic substances is enriched in Article 47 of the Constitution of India, which reads as under: Article 47- Duty of the State to raise the level of nutrition and the standard of living and to improve public health: The State shall regard the raising of the level of nutrit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... internationally to grow opium poppy for export and that it has been legitimately cultivated. No import will be allowed from countries where opium poppy is not legitimately cultivated. All contracts fro import of poppy seeds will be compulsorily registered with the Narcotic Commissioner. Before registering such contracts, the Narcotics Commissioner shall satisfy that the country from which the poppy seeds are proposed to be imported legally cultivates opium poppy and can produce the quantity of seed which are sought to be imported. 78. The National Policy emphasizes that before registering such contracts, the Narcotics Commissioner must satisfy himself that the country from which the poppy seeds are proposed to be imported (i) legally cultivates opium poppy, (ii) can produce the quantity of seeds which are sought to be imported. The policy constitutes a matter of high public policy for the Union Government in its stated object to combat the international trade in narcotic drugs and psychotropic substances. 79. The substance of the case of the petitioners in the present writ petitions is that the impugned amended notification issued by the Central Government imposing quantitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power to frame detailed guidelines with regard to registration of contracts with Narcotics Commissioner, Gwalior, for importing poppy seeds which is impermissible in view of the provisions of Sections 3(1), 3(2) and 3(3) of the Foreign Trade Act. It was further contended that imposing 90 MT quantitative restrictions is in utter violation of Article 19(1)(g) of the Constitution of India. 80. The substance of the case of the respondents and the contesting respondents i.e., Government of India is that, all contracts of import of poppy seeds shall be compulsorily registered with the Narcotics Commissioner. Before registering such contracts, the Narcotics Commissioner shall satisfy that country from which the poppy seeds are proposed to be imported, legally cultivates opium poppy and can produce quantity of seeds which are sought to be imported. It is contended that for the import of said product, the essential condition to be fulfilled is that, it has to be legitimately cultivated and compulsorily registered and country cap will be determined every year. It is however, contention of the Central Government that under Section 3(2) of the Foreign Trade Act, the Central Government is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to make provisions relating to imports and exports.-(1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by Order published in the Official Gazette, 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 1[import or export of goods or services or technology]: [Provided that the provisions of this subsection shall be applicable, in case of import or export of services or technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies.] (3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. [(4) Without prejudice to anything contained in any other law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government may, by rules provide for the manner in which goods, the import of which shall be subject to quantitative restrictions under this section, may be identified and the manner in which the causes of serious injury or causes of threat of serious injury in relation to such goods may be determined. (4) For the purposes of this section- (a) developing country means a country notified by the Central Government in the Official Gazette, in this regard; (b) domestic industry means the producers of goods (including producers of agricultural goods)- (i) as a whole of the like goods or directly competitive goods in India; or (ii) whose collective output of the like goods or directly competitive goods in India constitutes a major share of the total production of the said goods in India; (c) serious injury means an injury causing significant overall impairment in the position of a domestic industry; (d) threat of serious injury means a clear and imminent danger of serious injury. VIII INTERPRETATION OF THE PROVISIONS OF THE ACT 83. On careful perusal of the provisions of Section 3 of the Foreign Trade Act, it makes it clear that the power conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as regulation of foreign trade by facilitating imports and increasing exports. Thus, the Government is empowered to make provision insofar as they relate to the development of foreign trade and it has also empowered to regulate the foreign trade. The two key words in the sub-clause are 'development' and 'regulation'. It is also important to note that such development and regulation is aimed at facilitating imports as well as increasing exports. Sub-section (2) of Section 3 further empowers the Central Government to make provision for: (i) prohibiting; (ii) restricting; or (iii) otherwise regulating 'the import or export of goods or services or technology'. It can be done in all cases or in specified classes of cases. The words used in subsection (2) of Section-3 prohibiting, restricting or otherwise regulating are to be made in respect of import or export of goods or services or technology which essentially were customs based. 86. The definition of 'import' and 'export' contained in Section 2(e) of the Act which, in relation to goods, means bringing into, or taking out of, India any goods by land, sea or air. Therefore import of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government fixing 90 metric tons per importer on the basis of the country cap, in order to facilitate all the traders in the field of poppy seeds business and to control the monopoly of the poppy seeds business to a particular importer and in the interest of the consumers in India at large. 90. By the impugned notification, imposing quantitative restriction of 90 metric tons by amending policy condition No.3(c) is reasonable restriction and it is Directive Principle of State policy and not an arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public. Further, there is a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object of the Act. Hence the same is in accordance with law and not violative of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India and the said restrictions are within the provisions of Article 19(6) of the Constitution of India. 91. It is not in dispute that in view of the notification dated 29.7.2016 made in No.17/2015-20, the Central Government has permitted to import poppy seeds from the countries as mentioned in condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 1st July, 2016. ii) Narcotics Commissioner shall determine a provisional country cap based on the following information received from the competent Turkish authority: a) carried over stock of poppy seeds produced from previous crop year after discounting for the domestic consumption, export to other countries, re-sowing and wastage; and b) 50% of the fresh harvest in the current crop year. iii) Thereafter, once the actual production figures are available from the competent Turkish authority, the final country cap will be determined by a Committee comprising the Narcotics Commissioner, one representative of Directorate General of Foreign Trade (DGFT) and one representative of Department of Revenue. The committee shall consider the information provided by the Turkish authorities as well as such other data on world trade available on UN websites, as deemed fit. III. Allocation of Provisional Country Cap: i) Narcotics Commissioner shall apportion the provisional cap between the applicant in the following manner: a) Applicants shall be allowed to register sales contracts for the quantity applied for, or ninety(90) MT whichever is less. b) However, if the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antity allocated for registration earlier), or ninety (90) MT, whichever is less. The process shall be repeated in the same manner till the quantity available for allocation is exhausted. 94. The aforesaid guidelines clearly indicate that the Central Government has restricted import of poppy seeds to 90 metric tons per importer only to give an importer a chance to import poppy seeds which would be commercially viable. Apart from this, it could also be seen that the imposition of restriction is not by the Central Government on its own, but is because of the competent authority has fixed Country Cap from the reciprocal countries Turkey China and again that is not an absolute restriction. A careful reading of the guidelines issued clearly depicts that 90 metric tons is on provisional fixation of country cap. As and when the quantity is increased by the reciprocal country, effort will be made to give all the goods to applicants and thereafter, any excess product still available will be given to persons with more quantity requirements. Therefore the contention of the learned counsel for the petitioners that the Central Government delegated powers to the revenue department cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month of March/April 2016, if not submitted. 96. It is also not in dispute that in pursuance of the minutes of draw of lots conducted on 27th April 2017 for drawing the priority list of applicants who have applied for registration of sales contract for import of poppy seeds from Turkey was taken into consideration. In order to maintain transparency and install confidence about the genuineness of drawal of priority list, it was decided to resort to manual draw of priority list with the consent of all the participants present. Accordingly, computerized slips indicating serial numbers and name of the applicants were prepared. Opportunity was given to each participant to come and verify the serial number on slips, and put it in the bucket. One of the participants present there read out the name and serial number printed on the slip and other participants present verified it with the list of the applicants. After this, slips were folded and were put in a bucket. One of the participants mixed all the slips in the bucket. After this, opportunity was given to each participant to take out twenty slips one by one and priority list was prepared accordingly. Once first 20 slips were taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 147 32 61 16 199 33 243 17 255 34 43 Priority number Serial number of slip picked Priority number Serial number of slip picked 35 262 57 240 36 464 58 436 37 181 59 446 38 214 60 482 39 356 61 360 40 241 62 347 41 229 63 479 42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 108 473 87 318 109 246 88 284 110 392 89 371 111 38 90 209 112 154 91 441 113 221 92 324 114 457 93 344 115 456 94 227 116 127 95 192 117 175 96 415 118 455 97 291 119 172 98 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 164 314 143 231 165 59 144 435 166 390 Priority number Serial number of slip picked Priority number Serial number of slip picked 167 129 189 17 168 47 190 470 169 315 191 4 170 427 192 29 171 367 193 89 172 60 194 289 173 2 195 7 174 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 240 474 219 481 241 57 220 235 242 216 221 454 243 328 222 198 244 201 223 290 245 257 224 85 246 169 225 35 247 148 226 21 248 317 227 421 249 269 228 82 250 275 229 369 251 8 230 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 353 296 296 275 194 297 63 276 337 298 65 Priority number Serial number of slip picked Priority number Serial number of slip picked 299 30 321 104 300 249 322 254 301 279 323 323 302 340 324 1 303 331 325 387 304 286 326 406 305 112 327 107 306 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40 372 86 351 363 373 176 352 462 374 461 353 350 375 153 354 385 376 411 355 139 377 80 356 94 378 10 357 45 379 183 358 349 380 159 359 345 381 99 360 451 382 53 361 364 383 263 362 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 406 309 430 297 407 200 431 339 408 256 432 213 409 410 433 351 410 138 434 463 Priority number Serial number of slip picked Priority number Serial number of slip picked 435 310 454 312 436 167 455 202 437 140 456 373 438 207 457 311 439 27 458 404 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any allocation due to the country cap getting exhausted shall be put on wait list . The quantity available for allocation to the applicants shall be allocated as per priority list through draw of lots till the available quantity is exhausted. The notice also depicts that applicants who were put on wait list due to exhaust of the country cap shall be allowed, in the order of the priority list drawn at the time of the allocation of country cap, to register sales contract for the quantity applied, or ninety (90 MT), whichever is less, subject to the quantity available by way of surrender. If an importer fails to import a minimum of 50% of the quantity registered for import, less the quantity surrendered, he shall be debarred from registration of sales contract for a period of two years. 99. The notice also depicts that the quantity still available for allocation, after allocation to the applicants in wait list, shall be allocated to those applicants who had applied for registration of more quantity, but were allowed registration for less quantity. Such applicants shall be allowed, in the order of the priority list drawn at the time of allocation of country cap to register sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic in India at large. Therefore the interest of the country prevails at large, but not individual. On that ground also, the writ petitions are liable to be dismissed. X. THE JUDGMENTS OF THE HON BLE SUPREME COURT RELIED UPON FOR DETERMINATION 101. The Hon ble Supreme Court while considering the selection process/procedure in the case of ASHOK KUMAR v. STATE OF BIHAR reported in (2017)4 SCC 357 held that person who consciously takes part in selection process cannot thereafter turn around and challenge method of selection and its outcome. The Hon ble Supreme Court at paragraphs 11 to 18 held as under: 11. The basic issue that was addressed by the Division Bench was that the appellants having participated in the fresh round of selection could not be permitted to assail the process once they were declared unsuccessful. On this aspect, a brief recapitulation of the facts would be in order. In the original process of selection, following the issuance of General order No. 204 of 2003 by the District and Sessions Judge, Muzaffarpur on 2 December 2003, a written examination was held on 20 April 2004 consisting of eighty five marks followed by an interview on 7 July 2004 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. 15. In Manish Kumar Shah v. State of Bihar {(2010)12 SCC 576},, the same principle was reiterated in the following observations : 16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in MadanLal v. State of J K. {(1995) 3 SCC 486}, Marrip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted. This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam {(2016)1 SCC 454}. 102. In view of the conduct of the petitioners stated supra and the dictum of the Hon ble Supreme Court, the petitioners who consciously took part in the process of draw of lots knowing full well the amended policy, guidelines, public notices issued and the procedure laid down, are not entitled to question it upon being unsuccessful to get the allotment and on that ground alone the writ petitions are liable to be dismissed. In view of the above, point No.2 raised in the present writ petitions has to be answered in the negative holding that the guidelines for registration of sale contracts for import of poppy seeds from Turkey and China Governments restricting the applicants to register sale contracts for the quantity applied for, or ninety metric tons, whichever is less, and selection of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not amended to quash the said notice) issued by the Narcotics Commissioner, Government of India, Ministry of Finance, Central Bureau of Narcotics in compliance of the guidelines issued by the Government of India, Ministry of Finance, fixing the final country cap for import of poppy seeds from Turkey and China. 104. Sri D.L.N. Rao, learned Senior Counsel appearing for the petitioners draw attention of the Court to para-13 of the judgment in the case of MRF Limited vs- Inspector Kerala Government reported in 1998(8) SCC 227 though relied upon by the respondents and contended that the restrictions must not be arbitrary or of excessive nature so as to go beyond the requirement of the interest of the general public and there must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will arise. If two principles laid down are not existing, then Article 19(1)(g) of the Constitution of India attracts. But in the present case, in view of the past history/exper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment was prior to the amendment and hence, cannot be accepted in view of the latest judgment stated supra. 106. Though the learned Senior Counsel for the petitioners submits that the Parisons Agrotech Private Limited case was made prior to amendment of the policy and hence is not applicable, cannot be accepted since policy condition No.3(c) or impugned notification was amended exercising the powers under Section 3(2) of the Amended Act. Therefore, the judgment in the case of Parisons Agrotech Pvt. Ltd., is applicable to the facts of the present writ petitions in all force. 107. In so far as the judgment relied upon by the learned Senior Counsel for respondent No.5 in support of his contentions in the case of Union of India vs- Shiv Dayal Soin Sons (P) Ltd., reported in (2003)4 SCC 695 to the effect that what is expressly mentioned in one place but not in another must be taken to have been deliberately omitted, cannot be accepted since the said judgment was laid down considering the provisions of Section 40 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 for grant of lease of land to predecessor-in-interest of respondent - State Government. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any relief before this Court. 109. The Hon ble Supreme Court while considering the provisions of Article 19(1)(g) of the Constitution of India in the case of M/s ANDHRA INDUSTRIAL WORKS .vs. CHIEF CONTROLLER OF IMPORTS AND OTHERS reported in (1974)2 SCC 348 held at paragraphs 14 and 15 as under: 14. Be that as it may, on the basis of an Import Trade Policy an applicant has no absolute right, much less a fundamental right, to the grant of an import licence. The nature of such a claim came up for consideration before this Court in Deputy Assistant Iron and Steel Controller and anr. v. L. Maneckchand, Proprietor, Katrella Metal Corpn., Madras {(1972)3 SCC 324} 15. That was an appeal by special leave against the judgment of the High Court rendered in exercise of writ jurisdiction under Art. 226.The writ-petitioner asked for the issue of a Mandamus requiring the authorities to consider his application for licence to import stainless steel in terms of 1968-69 Policy and not in accordance with 1970-71 Policy when the application was made. This Court held that in view of section 3(1)(a) of the Imports and Exports Control Act, 1947 and clause 6 (1) (a) of the Imports (Control) Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered. 26. In State v. Karna (1973 Crl.LJ 1871) where the very question with which we are concerned in the present case cropped up in connection with the Rajasthan Foodgrains (Restrictions on Border Movement) Order, 1959, a bench of Rajasthan High Court said as follows at page 1872:- It is important to note that laying the Order before both the Houses of Parliament is not a condition precedent for bringing into force the Order. All that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances. (4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Clause (6) of Article 19. (5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind. (See: State of U.P. vs. Kaushailiya, (1964) 4 SCR 1002 = AIR 1964 SC 416) (6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (See: Kavalappara Kottarathil Kochuni @ Moopli Nayar vs States of Madras and Kerala. (1960) 3 SCR 887 = AIR 1960 SC 1080: O.K. Ghosh vs. E.X. Joseph. (1963) Supp. (1) SCR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Union of India v. Dinesh Engineering Corporation {(2001) 8 SCC 491}, this Court delineated the aforesaid principle of judicial review in the following manner: 12. there is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to the policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. Any decision be it a simple administrative decision or policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution. 16. The power of the Court under writ jurisdiction has been discussed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers. 17. The aforesaid doctrine of separation of power and limited scope of judicial review in policy matters is reiterated in State of Orissa and Others v. Gopinath Dash and Others {(2005)13 SCC 495} : 5. While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed v. State of J K; 1989 Supp (2) SCC 364 and Shri Sitaram Sugar Co. Ltd. v. Union of India; (1990) 3 SCC 223). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not in any way impinge upon the equality clause. 19. We would also like to refer to the judgment of this Court in the case of Premier Tyres Limited v. Kerala State Road Transport Corporation {1993 Suppl. (2) SCC 146} wherein this Court held that when a policy decision is taken in the public interest, Courts need not tinker with the same. 20. The locus classicus allowing freedom to the Executive to take economic decisions is remarkably dealt with by this Court in R.K. Garg v. Union of India {(1981)4 SCC 675}] and the following discussion from the said judgment is again worth quoting: 8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. 19. It is true that certain immunities and exemptions are granted to persons investing their unaccounted money in purchase of Special Bearer Bonds but that is an inducement which has to be offered for unearthing black money. Those who have successfully evaded taxation and concealed their income or wealth despite the stringent tax laws and the efforts of the tax department are not likely to disclose their unaccounted money withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d devices with a view to avoiding or saving tax. But that cannot be helped because human ingenuity is so great when it comes to tax avoidance that it would be almost impossible to frame tax legislation which cannot be abused. Moreover, as already pointed out above, the trial and error method is inherent in every legislative effort to deal with an obstinate social or economic issue and if it is found that any immunity or exemption granted under the Act is being utilised for tax evasion or avoidance not intended by the legislature, the Act can always be amended and the abuse terminated. We are accordingly of the view that none of the provisions of the Act is violative of Article 14 and its constitutional validity must be upheld. 21. The aforesaid principle is echoed with equal emphasis in Balco Employees' Union (Regd.) v. Union of India and Others {(2002) 2 SCC 333} in the following manner: 46. It is evident from the above that it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. vs.Union of India {(1994) 74 ELT 827 (Cal.)} is concerned, we have our reservations on the correctness thereof wherein the High Court found that Notification dated 28.04.1989 allowing imports of Woolen rags, Synthetic rags, Shoddy wool through two ports only, namely, Bombay and Delhi ICD. In any case, insofar as argument based on Article 14 is concerned, the said judgment is distinguishable as in that case the Court did not find any intelligible basis which was disclosed before the Court either in the affidavits filed by the Customs Authorities or in the Import Licensing Control Authorities of the Government of India. Likewise, no rational nexus for imposing the restrictions on importation of the subject goods only through Delhi ICD and Bombay ports is disclosed. In the absence of such a justification, on the facts of that case, the Court found the Notification to be violative of Article 14 of the Constitution. 23. In contrast, in the present case, as already pointed out above, the respondents have been able to demonstrate intelligible basis for issuing the impugned Notifications having rational nexus with the objectives sought to be achieved. We, thus, reject the arguments b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) as well as sub- section (4) were inserted by Act 25/2010 w.e.f. 27.08.2010. In any case, we are primarily concerned with the interpretation of subsections (1) and (2) of Section 3 as far as present case is concerned. Sub-section (1) empowers the Central Government to make provision for the development as well as regulation of foreign trade by facilitating imports and increasing exports. Thus, the Government is empowered to make provision insofar as they relate to the development of foreign trade and it has also empowered to regulate the foreign trade. The two key words here are 'development' and 'regulation'. It is also important to note that such development and regulation is aimed at facilitating imports as well as increasing exports. First argument of Mr. Naphade was that regulatory provision has to be for facilitating imports whereas in the present case, it was to curb the imports insofar as ports in Kerala are concerned. Sub-section (2) of Section 3 further empowers the Central Government to make provision for: (i) prohibiting; (ii) restricting; or (iii) otherwise regulating 'the import or export of goods or services or technology'. It can be done in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered. This approach, according to him, would be in consonance with the ratio of the judgment of this Court in Union of India v. Asian Food Industries {(2006)13 SCC 542}: 25. Would the terms 'restriction' and 'regulation' used in Clause 1.5 of the Foreign Trade Policy include prohibition also, is one of the principal questions involved herein. 26. A citizen of India has a fundamental right to carry out the business of export, subject, of course to the reasonable restrictions which may be imposed by law. Such a reasonable restriction was imposed in terms of the 1992 Act. 27. The purport and object for which the 1992 Act was enacted was to make provision for the development and regulation of foreign trade inter alia by augmenting exports from India. While laying down a policy therefor, the Central Government, however, had been empowered to make provision for prohibiting, restricting or otherwise regulating export of goods. 28. Section 11 of the 1962 Act also provides for prohibition. When an order is issued under sub-section (3) of Section 3 of the 1992 Act, the export of goods would be deemed to be prohibited also under Section 11 of the 1962 Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid discussion holding that sub-section (2) of Section 3 of the Act gives ample power to the Government to issue such Notifications in exceptional cases and present case falls within those parameters. No other argument was addressed. We, therefore, do not find fault with the view taken by the High Court upholding the Notifications in question. These appeals are accordingly dismissed. 114. The Hon ble Supreme Court while considering the aspects of policy decision and judicial review in the case of SHER SINGH AND OTHERS .vs. UNION OF INDIA AND OTHERS reported in (1995)6 SCC 515 held at paragraph-7 as under: 7. xxx xxx Later, if the Government had taken a policy decision to grant parity again with effect from 1.4.1980 and not with retrospective effect from 1.7.1973 when it was disturbed there could be no legitimate grievance for the same because the Government has the right to change its policy from time to time, according to the administrative exigencies and demands of the relevant time. As a matter of fact the Courts would be slow in interfering with matters of Government Policy except where it is shown that the decision is unfair malafide or contrary to any statutory di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalization of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority, SC/0248/1960, Shree Meenakshi Mills Ltd. v. Union of India SC/0064/1973, Hari Chand Sarda v. Mizo District Council SC/0058/1966 and Krishnan Kakkanth v. Government of Kerala (AIR 1997 SC 129). 116. The Hon ble Supreme Court while considering the aspects of judicial review and polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecutive. The Hon ble Supreme Court in the said decision held at paragraphs 21, 40, 41, 42 to 47 as under: 21. It is settled law that in the areas of economics and commerce, there is far greater latitude available to the executive than in other matters. The Court cannot sit in judgment over the wisdom of the policy of the legislature or the executive. Thus in Balco Employees' Union (Regd.) vs. Union of India and Ors. 2002(2) SCC 333 it was observed (vide paragraph 92 and 93): 92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court. 93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice fixation must necessarily, be, are matters of prediction of ultimate results on which even experts can seriously err and doubtlessly differ. Courts can certainly not be expected to decide them without even the aid of experts. 43. In Shri Sitaram Sugar Co. Ltd. vs. Union of India (1990) 3 SCC 223 the Supreme Court observed : 57.Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the feel of the expert by its own views. It must be remembered that certain matters are by their nature such as best be left to experts in the field. This Court does not have the technical and administrative expertise in this respect. 44. In the words of Chief Justice Neely : I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financer, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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