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TMI Blog1995 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumvention of the laws, rules and regulations of either country in regard to matters relating to customs, narcotics and psychotropic substances, foreign exchange and foreign trade. 4.According to the petitioner, after arrival of the aforesaid goods at the Calcutta Port, its authorised Customs House Clearing Agent filed a Customs Transit Declaration (C.T.D. for short) in accordance with the Import Procedure prepared in terms of the Treaty of Transit, containing the required particulars, along with the shipping documents, for the purpose of examination of the goods and necessary clearance for transit of the goods to Nepal by the prescribed route. 5.According to the agreed procedure, after the Customs authorities are satisfied about the goods to be carried in transit through the territory of India, they are to endorse all the copies of the Customs Transit Declaration, the original whereof is to be made over to the importer, and the duplicate and triplicate copies are to be sent to the Indian Border Customs Officer. The remaining copies are to be retained by the Customs Authorities. 6.The goods in question appear to have been detained by the Directorate of Revenue Intelli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it was held that it was not open to the Customs Department to unduly delay clearance of the goods, and if such delay occurred, then the importer could not be penalised and after a reasonable period, the Customs authorities were bound to issue detention certificate to the importer for the period of delay. 15.Mr. Sen then referred to a decision of this Court in the case of S.A. International v. Collector of Customs reported in 1988 (36) Excise Law Times at Page 445, where it was held that where illegal proceedings were initiated against an importer by the Customs Authorities, the importer would be entitled to refund of warehousing and demurrage charges, since he could not be made liable for such payment. 16.Mr. Sen also referred to another decision of this Court in Om Shankar Biyani v. Collector of Customs - [1992 (60) E.L.T. 54] and the Supreme Court in Padam Kumar Agarwalla v. The Additional Collector of Customs, Calcutta, (A.I.R. 1972 S.C. Page 542), wherein similar sentiments had been expressed. 17.Mr. Sen urged that in the last case cited, the Supreme Court had observed that the appellant had been unlawfully deprived of the possession of his valuable goods because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being the country of origin was false and amounted to a misdeclaration, Mr. Mullick urged that such misdeclaration prompted the Customs authorities in Calcutta to make enquiries and they received confirmation from the Deputy Director, Revenue Intelligence, Delhi, that since there did not appear to be any licit production of poppy in Pakistan, the genuineness of the consignments should be verified and be kept under detention for the said purpose. 23.Mr. Mullick then submitted that the matter was, thereafter, referred to the Chairman, Pakistan Narcotic's Control Bureau for making enquiries and to confirm whether the exporters mentioned in the letter of 12th August, 1994, written on behalf of the Narcotics Control Bureau in India, were genuine exporters or not. 24.Mr. Mullick submitted that till today, no answer had been received to the said queries from the Chairman, Pakistan Narcotics Control Bureau. 25.In this connection, Mr. Mullick also drew the attention of the Court to the definition of "opium poppy" and "poppy straw" in the Narcotic Drugs and Psychotropic Substances Act, 1985, and urged that since poppy seeds were a by-product of opium poppy and even poppy straw, the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frontation with the Comity of Nations or the well-established principles of International laws. But where conflict was unavoidable, the latter would have to yield. 31.Mr. Mullick urged that in the circumstances the local law, that is, the Customs Act, 1962, would have an over-riding effect over the provisions of the Treaty of Transit and the Treaty of Trade executed between India and Nepal. 32.Mr. Mullick submitted that if the petitioner concern could satisfy the Customs authorities as to the country of origin of the poppy seeds, it would be at liberty to take possession of the goods for transit to Nepal. 33.From the submissions made on behalf of the respective parties it will have to be ascertained whether there has at all been a misdeclaration of the country of origin of the consignment of poppy seeds, and, if so, whether having regard to the provisions of the Treaty of Transit and Treaty of Trade, the provisions of Sections 111 and 112 of the Customs Act, 1962, are attracted to the facts of the case. 34.From the documents annexed to the writ petition and the Affidavit-in-Reply, it will appear that in the Bill of Lading, Letter of Credit of Himalayan Bank Ltd., Kathmandu, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to the Customs authorities in respect of misdeclaration of goods made under the Customs Act. In the instant case, however, the declaration is under the Import Procedure forming part of the Treaty of Transit. 40.The position would have been different, had poppy seeds been a narcotic or a substance from which narcotics could be derived. Then, in such event, having regard to the provisions of Articles IX and X of the Treaty of Transit and the Treaty of Trade, the Customs authorities in India would be entitled to apply the local law, namely, the Customs Act, 1962, which would then have an overriding effect over the terms of the Treaty of Transit and Treaty of Trade. The decision in the case of Gramophone Company of India Ltd. (supra), cited by Mr. Mullick would then assume relevance. 41.From the authorities cited, there is little room for doubt that poppy seeds have no narcotic properties and is used for human consumption, both as a seed and also the oil derived therefrom, besides being used as bird seed and cattle food. In fact, poppy seeds have been specifically excluded from the operation of the Narcotic Drugs and Psychotropic Substances Act, 1985. 42.In that view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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