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TMI Blog2020 (7) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... s inter alia require import contracts to be compulsorily registered with the respondent no.2. 3. Clause 17 of the National Policy on Narcotic Drugs and Psychotropic Substances provides that the import of poppy seeds shall continue till self-sufficiency is achieved and the only condition for such import is that the poppy seeds should have been imported from a country authorized internationally to grow opium poppy for export and that it has been legitimately cultivated. 4. The petitioners further place reliance on the Public Notice dated 25.06.2019 containing 'the Guidelines for Registration of the Sales Contracts for import of poppy seeds from Turkey' (hereinafter referred to as the 'Guidelines') to contend that the determination of the Country Cap for the purpose of import of poppy seeds from Turkey has to be made on the basis of the recommendation by a Committee comprising of the Narcotics Commissioner; one representative of the Directorate General of Foreign Trade (DGFT); and one representative of the Department of Revenue, and is to be based upon the stock and production of the poppy seeds as communicated by the Turkish Grain Board (TMO) or the Turkish Embassy in India. 5. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the price of the poppy seeds in the domestic market. 9. They place reliance on the judgment dated 29.11.2013 passed by the Allahabad High Court in in Public Interest Litigation (PIL) No.22067/2013 tiled Ayurveda Sewashram Kalyan Samiti Thr. Secretary Allahabad vs. Union of India Thr. Secretary & 3 Ors., to submit that the respondent no.2 has been charged with the purpose of registering the contracts for due implementation of the Policy of the Government of India. Such Policy merely requires a certificate that the poppy seeds have originated in a country where opium poppy is grown licitly and legally. The Import Policy being a statutory document, cannot be derogated from. Therefore, the respondents cannot arbitrarily fix the Country Cap or deny registration of the contracts of the petitioners on arbitrary ground. 10. As far as the registration of their agreements by the respondent no.2 is concerned, the learned counsels for the petitioners submit that in terms of the Guidelines, the respondent no.2 has to register all contracts that have been duly registered with the TMO. They submit that the sale contracts of the petitioners have been registered by the TMO and documents acknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the same contracts, the petitioners have been denied an opportunity of fair play and equal treatment thereby vitiating the entire process. The respondents, in spite of complaint from the petitioner, have not asked the TMO to explain its conduct thereby allowing such arbitrary procedure to be accepted. 12. On the other hand, the learned counsel for the respondents submits that as far as the fixation of the Country Cap is concerned, the same, apart from being based upon the stock and production of poppy seeds in Turkey, is also to be based on the domestic production. He submits that the recommendation of the Committee appointed in terms of Clause 1 of the guidelines was duly considered by the Competent Authority and taking into account the domestic production in the summer crop of 2020, it was decided not to increase the Country Cap beyond the already fixed limit of 18000 MT. He submits that the fixation of the Country Cap being a policy decision, this Court cannot sit in an appeal on such decision. 13. As far as the registration of the contract is concerned, the learned counsel for the respondents submits that in terms of the procedure prescribed in the Guidelines, it is the obl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Drugs and Psychotropic Substances." 16. A reading of the above would clearly show that though described as freely importable, the import of poppy seeds is subject to the policy conditions, which inter alia restrict the countries from which such imports can be made; the requirement of such opium poppy being grown legally in that country; and the registration of the import contracts with the respondent no.2 in accordance with the Guidelines issued by the Department of Revenue, which may inter alia include fixing of the Country Cap. 17. The 'National Policy on Narcotic Drugs and Psychotropic Substances', in Clause 17 provides that the import of poppy seeds will continue till self-sufficiency is achieved. Therefore, the intent of the policy is clearly to promote consumption of the domestic production. The said Clause further provides for registration of the import contracts. Clause 17 of the Policy is reproduced hereinbelow: "17. Import of poppy seeds will continue till self-sufficiency is achieved. The policy is to allow 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided by Government of India in consultation with Government of Turkey taking into account the production of poppy seeds in Turkey in a crop year, balance from previous crop years and domestic or other export requirement of Republic of Turkey." 20. The said Clause clearly shows that the quantity of poppy seeds which shall be imported by India from Turkey shall be decided by the 'Government of India in consultation with the Government of Turkey'. 21. Though, such determination is to be based on the production of poppy seeds in Turkey in a crop year, the balance available from the previous crop year and the domestic or other export requirement of Turkey, it cannot be said that the Government of India becomes obliged to allow the import of the entire quantity of poppy seeds as may be communicated by the Government of Turkey to be available for export from it. 22. A fair and harmonious reading of the above Clauses would clearly show that even though one of the relevant consideration for determination of the Country Cap is the quantity of the poppy seeds available in Turkey for exports, the same is not the sole criteria, and such determination can take place based on other relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e determining the Country Cap, however, only because the price is high in India, it cannot be said such determination is arbitrary or unreasonable. 27. The learned counsels for the petitioners have also submitted that the Country Cap for import of poppy seeds from Turkey cannot be restricted on basis of the Guidelines to promote 'self sufficiency' or in other words to give preference to domestic production, without issuing a Notification under Section 9A of the Foreign Trade (Development and Regulation) Act, 1992. 28. This argument, however, need not detain me as in none of these petitions, there is a challenge laid to the Guidelines. In any case and as noted therein above, Clause 3(c) of Section II, Chapter-12 of the Schedule-1 of the Import Policy states that the registration of the contracts is to be in accordance with the guidelines issued by the Department of Revenue, which may, inter-alia, include fixing of country cap. I may also note the judgement of the Bombay High Court in Chailbihari Trading Private Limited & Ors. v. Union of India & Ors. MANU/MH/2412/2019 and of the Karnataka High Court in Om Traders & Ors. v. The Union of India & Ors. MANU/KA/0457/2018 on which relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication as prescribed in Para(II)(a). In such a case,sales contract registration will be issued to applicant importer directly without the stage of issue of Provisional Registration;" 30. The MOU between the Government of India and Government of Turkey also provide for the same procedure in Clauses 1 to 3 and Clause 5, which are reproduced hereinbelow: "1. Turkish Grain Board (TMO) shall maintain an online system to enable regulation of export of poppy seeds from Turkey to India. Exporting companies shall submit application through the Agean Exporters Association (EIB) (responsibility given by law) to TMO for obtaining membership of the online System. 2. Each year, the quantity of poppy seeds which shall be imported by India from Turkey shall be decided by Government of India in consultation with Government of Turkey taking into account the production of poppy seeds in Turkey in a crop year, balance from previous crop years and domestic or other export requirement of Republic of Turkey. 3. The exporting companies shall get registered with the TMO. Each sales contract entered into by the exporting company with Indian importer shall be registered with TMO through the online s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were registered prior to notification of the Country Cap got re-registered thereafter. 33. As far as the respondents are concerned, once the sales contracts of the petitioners were not found on the online system as being registered by the TMO, the respondents have rightly refused to register such contracts and no fault can be found in such an exercise. 34. In this light, the submission of the learned counsel for the petitioners of 'first cum first serve' principle having been followed by the respondents or the registration being made by the respondents in some arbitrary manner, cannot also be sustained. 35. I may only note that Clause 3 of the MOU between the Government of India and Government of Turkey casts a responsibility on the TMO not to register sales contract in excess of the Country Cap declared by the Government of India. It would be for the TMO therefore, to determine in what manner and following what procedure such contracts shall be registered by it. It can also not be said that the respondents have failed to discharge any duty by not inquiring from the TMO about the non-registration of petitioners' contracts. In any case, the occasion for the respondents to adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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