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TMI Blog1995 (10) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... nd strengthen the existing friendly relations and co-operation between the two countries recognising that Nepal is lani-locked country and as such, it needs access to and from the sea to promote its international trade. The object of the Treaty further was that the Contracting Parties shall accord to "traffic in transit" freedom of transit across their respective territories through routes mutually agreed upon. No distinction shall be made which is based on flag of vessels, the places of origin, departure, entry, exit, destination, ownership of goods or vessels. 4.The term "traffic in transit" means the passage of goods including unaccompanied baggage across the territory of a Contracting Party when the passage is a portion of a complete journey which begins or terminates within the territory of the other Contracting Party. `Traffic in transit' is undertaken for the convenience of transportation. Articles IV and V of the said agreement are as follows : "ARTICLE IV Traffic in transit shall be exempt from customs duties and from all transit duties or other charges except reasonable charges for transportation and such other charges as are commensurate with the costs of services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his facility shall however be denied to the importer who defaults in the production of these documents within a reasonable time to the Indian Border Customs Officer." 8.The Government of India has started proceedings for its satisfaction as to whether the goods have been imported from the place of declaration. Communication in between Pakistan and Government of India officials were exchanged. First Paragraph of the letter dated August 12, 1994 of the Narcotics Control Bureau expressed doubt about the place. For the sake of convenience the said paragraph is quoted below : "Large scale exports of Poppy Seeds from Pakistan to Nepal via India have been noticed of late. One of the enforcement agencies of this country has brought to the notice of this Bureau that as many as 26 consignments of Poppy Seeds weighing 250 MT have been certified to have originated from Pakistan for Nepal and are currently detained at Calcutta Port. Veracity of the certificates showing the Poppy Seeds of Pakistani origin appears to be doubtful because such huge amount of Poppy Seeds are not legally grown in Pakistan." 9.Indian Government was not satisfied with the declaration about the place of import of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law treaties looks primarily to consent and the wills of the parties to determine whether an agreement in law has been concluded. The emphasis of international law on the consent of the parties is due not only to the influence of civil law, but also to the realities of the international legal system where state sovereignty and independence loom so large. In the instant case the two countries had given their consent to the various terms and conditions of the treaty. On a reading of the various terms and conditions of the agreement it would be found clear and established that a corridor had been provided by the Indian Government to Nepal. As to what is the effect of Treaties has been considered by Mr. Janis in his book "An Introduction to International Law" which is as follows : "The basic principle regarding the observance of treaties, pacta sunt servanda, finds its place in the Vienna Convention: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." The notion of good faith in the observance of international agreements is of course, a fundamental principle of international law. As Judge Lauterpacht observed in his separate opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of insular location of Nepal without access to any sea port a treaty of transit, a treaty of trade and an agreement of cooperation to control unauthorised trade were entered into between the Government of India and Government of Nepal to felicitate traffic in transit through their territories and to prevent infringement and circumvention of the Law, Rules and Customs norcotics and Psychotropic substances, foreign exchange and foreign trade. According to the respondent, after arrival of the goods in question at the Calcutta port, its authorised customs housing clearing agent filed a customs transit declaration in accordance with the merit 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 goods to Nepal by the prescribed routes. According to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act. Let us therefore, first consider as to whether the provisions of the Customs Act can be invoked for the alleged false declaration made by the writ petitioner-respondent while applying for transit pass from the appellants. In my view, the application of Customs Act in the facts and circumstances of this case does not arise at all. Therefore, the question of confiscation of such goods also under the Customs Act does not arise. Section 110 of the Customs Act deals with seizure [sub-section (1)] and documents or things [sub-section (3)]. Under sub-section (1) of Section 110 of the Customs Act, the proper officer has ample power to seize such goods which he has reason to believe are liable to confiscation under Chapter XIV of the Act. Section 111 of the Customs Act (hereinafter referred to as the `Act') says that the goods mentioned in sub-sections (a) to (p) of Section 110 of the Customs Act brought from a place outside India shall be liable to confiscation. Mr. Mullick, after taking us through sub-sections (c) and (m) of Section 111 of the Act contended that the Poppy Seeds in question were liable to be confiscated under Section 111 (c) and (m) of the Act. Mr. Mullick then co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent under this Act. Mr. Mullick appearing on behalf of the appellant however, submitted that since in the declaration made by the writ petitioner-respondent that the Poppy Seeds in question were of Pakistan origin the entry already made did not correspond in respect of such declaration. Mr. Mullick however contended that in view of the letter written by the Pakistan Government intimating that Poppy Seeds were of Afghanistan origin the particulars declared by the writ petitioner-respondent that they were of Pakistan origin and not of Afghanistan origin were a true declarations and as the said particulars did not correspond to the entry made, such goods were liable to be confiscated, under Section 111(m) of the Act. In my view, this submission of Mr. Mullick cannot be accepted for the reasons given hereinunder. In order to appreciate the aforesaid submission of Mr. Mullick it is necessary to take into consideration some other relevant provisions of the Customs Act. Before I do that let me say as noted hereinabove that Section 111 deals with confiscation of goods which have been improperly imported from a place outside India. Therefore, Section 111(m) of the Act applies in cases w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces or in pursuance of general conventions intended to prevent infringement of industrial, literary or artistic property or relating to false marks, false indications of origin or other methods of unfair competition." From a plain reading of Article IX of the said Treaty there cannot be any dispute that in respect of Article such as narcotics and psychotropic substances or in pursuance of general conventions intended to prevent infringement of industrial literary or artistic property or relating to false marks, false indications of origin or other methods of unfair competition the contracting party can take any measure against the erring parties which may be necessary in pursuance of general international conventions. It also appears from Article IX that such measures can be taken relating false marks, false indications of origin or other methods of unfair competition. In this case we are interested in the expression `false indications of origin' as expressed in Article IX of the said Treaty. Article II of the Memorandum says that before the Customs House, the importer or his agent shall present a Custom transit declaration containing inter alia the particulars in relation to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industry as per existing rules, the declaration made by the Writ petitioner-respondent that the said goods were of Pakistan Government cannot be said to be false as in my view the entries in respect of such declaration made by the respondent were to the best of the knowledge and belief of the writ petitioner-respondent. The writ petitioner-respondent had relied on a certificate issued by Pakistan Government and on the basis of such certificate such declaration was made by them. There is nothing on record that an export certificate was procured by the writ petitioner-respondent in connivance with the Pakistan government, nor such a case has been made out by the appellants in their affidavit-in-opposition filed before the Trial Court and no such argument has been advanced by Mr. Mullick on this score. Therefore, declaration made by the writ petitioner-respondent on the basis of export certificate issued by the Pakistan Government cannot said to be a false declaration as it was so done with the best knowledge and belief of the writ petitioner- respondent. Therefore, it cannot be said that the writ petitioner having declared the goods in question of Pakistan origin had made false decla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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