2018 (2) TMI 1199 - KARNATAKA HIGH COURT

Issuance of guidelines for Registration of Sale Contracts for Import of Poppy Seeds from China - Public Notice No.PS-11/2016 (Annexure- W) - Amendment in the condition No.3(c) of the import policy, imposing quantitative restriction - issuance of guidelines for registration of sale contracts for import of poppy seeds from Turkey and China Governments - selection of applicants through ‘draw of lots’ - validity of public notices dated 4.11.2016 and 5.12.2016 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 Governments? - condition No.3(c) of the amended import policy issued by the Central Government, exercising powers under Articles 226 and 227 of the Constitution of India?

Held that: - The import of poppy seeds, is governed by EXIM (Imports and Exports) Policy. Chapter 12 of Import Policy heading 1207 applies, among other 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 depend on diverse considerations, to be adopted in regard to the control of import of goods. The import of goods can be controlled in several ways. If it is desired that goods of a particular kind should not enter the country at all, the import of those goods can be totally prohibited. In case total prohibition is not desired, the goods could be allowed to come into the country in limited quantities.

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 condition No.3(a) of the notification i.e., from Australia, Austria, France, China, Hungary, the Netherlands, Poland, Slovakia, Spain, Turkey and Czech Republic, United Kingdom, Democratic People’s Republic of Korea, Macedonia, Germany and Ukraine. If the competent authority fixes the country cap to import poppy seeds from the exporting countries mentioned supra, every importer/applicant like the petitioners would get 90 metric tons on the basis of the priority list in accordance with the draw of lots and there would not be any discrimination among the applicants/traders and it is the policy of the Central Government and the same is in accordance with law - the Central Government is justified in amending condition No.3(c) of the import policy imposing quantitative restrictions, if any per importer under the provisions of Section 3 of the Foreign Trade Act.

The respondent – Central Government has taken all precautions to distribute poppy seeds among the traders restricting 90 metric tons per importer and drawing of lots as stated supra is only at the interest of public/consumers at large. Therefore there is no violation of fundamental rights of the petitioner guaranteed under Article 19(1)(g) of the Constitution of India. The restriction made by the Central Government is reasonable restriction imposed by the Central Government as a policy decision and same is in accordance with the provisions of Article 19(6) of the Constitution of India.

The import policy amending condition No.3(c) came to be issued exercising the powers under the provisions of Section 3 of the Foreign Trade Act in order to facilitate all the applicants/traders in the field of poppy seeds business and to control the monopoly of poppy seeds business to a particular importer, in the interest of the general 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 under Article 226 and 227 of the Constitution of India.

The impugned notification, guidelines and public notices issued by Respondent Nos.1 to 4 are in accordance with law. The petitioners have not made out any ground to interfere with the same exercising the powers under Articles 226 and 227 of the Constitution of India - petition dismissed.