TMI Blog2015 (11) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... nsecticides having multiple uses being imported in the guise of being employed for non insecticidal purposes but falling into the hands of those who use it as insecticides. Insecticides being used as insecticides forms the subject matter of the Act. Governor is not empowered to make any order in regard to that matter in exercise of its executive power nor can the Governor exercise such power in regard to that matter through officers subordinate to that authority cannot apply to the situation at hand. What is involved is not grant of Registration under Section 9 or discharge of any other function assigned to the statutory authorities under the Act through any subordinate authorities. Equally , it is not a case where the Executive power in this case has been exercised in relation to the matter which is the subject matter of Section 9 - we cannot even say that it is bad for reasons which would invalidate a piece of subordinate legislation viz. there is conferment of uncanalised power. We must proceed on the basis that the officers called upon to decide the issue on merit being experts in their field would not only act on the basis of the information which is available objectively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears to prohibit carrying out the activities without getting registration if intended to be used as insecticides. According to us, no further investigation into this matter is necessary for by finding that there is illegality committed by the local manufactures which is being condoned by the authorities may not advance the case of the writ petitioners. The case of the writ petitioner is to quash the of condition in Ext.P5 relating to boric acid. We are of the view that there is no basis for the learned Single Judge to have quashed Ext.P5. Even in respect of Sodium cyanide there is a requirement of import permit and also the end use element govern the import of sodium cyanide which apparently is multiple use pesticide. No doubt the writ petitioner would point out that there are such requirements in an executive order in relation to other insecticides . It is pertinent to note that there is no such requirement in the statutory policy in regard to other insecticides. Discrimination and arbitrary conditions are imposed only in regard to the boric acid in the statute. - No doubt, if the restriction had not been imposed by law (the amendment on 7/4/2006to the statutory policy), the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultravires the provisions of the Act. iii). Whether the imposition of condition that persons, who wish to import insecticide for non-insecticidal purposes, must obtain an import permit from the Central Insecticide Board and Registration Committee is unworkable. iv). Whether there is any discrimination practised against the petitioners and similar importers of other insecticides. 2. These questions appear to arise in the following factual matrix. Boric acid is an insecticide which is included in the schedule to the Act. The writ petitioner in W.P.(C) Nos.11388/2005, 1577/2006 and 4168/2007 is a trader who imports boric acid as part of its trade, whereas the other writ petitioner (in W.P.(C) No.28432/2006 and W.P. (C)10934/07) is a manufacturer who uses boric acid as raw material. The writ petitioners originally approached this court by filing W.P.(C) Nos. 11388/2005 and 1577/2006 and 26432/06. In the writ petitions the writ petitioners sought to challenge administrative instructions. By Ext.P1 they were asked to get themselves registered under the Act (Ext.P1 circular). Subsequently, the Central Board of Excise and Customs modified the terms of Ext.P1 Circular clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition to any other Law for the time being in force (In this case the Foreign Trade Act). In fact, the expression 'time being in force' takes in future law, he submits. In this regard, he relies on the decision in M/s. Indian C. P. Works v. State of A.P. (AIR 64 (AP) 430). He would contend that there are incidental powers available with the authorities. He would further contend that the condition imposed under Foreign Trade Act is not unworkable. He would point out that in policy matters interference by the Court must be limited to well established grounds. He would further submit that actually what the notification under the Foreign Trade Act insists is not registration but import permit and this aspect has been lost sight of by the learned Single Judge. The learned counsel relies on the following decisions in support of his arguments; Liberty Oil Mills v. Union of India ( AIR 1984 (3) SCC 465) , Sultana Begum v. Prem Chand Jain(1997 (1) SCC 373), CIT v. Hindustan Bulk Carriers (2003 (3) SCC 57), Manohar Lal Sharma v. Union of India (2013 (6) SCC 616), Subash Photogaraphics v. Union of India (1993 Supp. (3) SCC 323), G.Sundarrajan v. Union of India (2013 (6) SCC 62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting to import it for non- insecticidal purposes but diverting it for being used as insecticides, such provisions are more than sufficient to ensure that there is no abuse by any unscrupulous importer. He would further submit that even assuming that some restriction is required to check the possibility of abuse by any unscrupulous traders or importers, some documents can be obtained from the District Industries Centre which would suffice for the purpose of checking the possible misuse. Learned counsel would point out that there is no restriction on traders to freely import boric acid. He would then pose the question that when free import policy is in place, how permits could be contemplated having regard to the fact that the traders may not be in a position to produce end use certificate as sought to be demanded. He would contend that as the Act in this case governs the field and certain authorities are created under the Act for performing certain functions which are provided in the Act, the Executive could not confer additional functions on them by way of clothing them with authority as it were to issue import permit. In this regard he drew our attention to the judgment of the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1989. He would submit that other insecticides covered by the Act are also brought under the ambit of said rules. This is an attempt to rebut the complaint of the writ petitioners that there is hostile discrimination. He also drew our attention to the Hazardous Wastes (Management Handling And Trans boundary Movement) Rules 2008. Sri.Santhosh Mathew drew our attention to the judgment Paramjit Kaur v. State of Punjab (1999 (2) SCC 131) for the proposition that authority under the statutory body could be asked to perform duties beyond the purview of its statutory jurisdiction/functions. 11. As already noticed, the learned Single Judge interfered with the matter on the basis of two grounds which we have already indicated. In our view following questions arise for our consideration; i). What is the effect of Section 2 of the Act and Sections 3 and 5 of the Foreign Trade Act. (ii) Whether this is a case whereby insistence of the Authority, under the Foreign Trade Act for production of import permit, is ultra vires its powers. (Iii). Whether it could be said that there is no legislation covering topic of imported insecticides used for non-insecticidal purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed, the insecticide, allot a registration number thereto and issue a certificate of registration in token thereof within a period of twelve months from the date of receipt of the application: Provided that the Committee may, if it is unable within the said period to arrive at a decision on the basis of the materials placed before it, extent the period by a further period not exceeding six moths; Provided further that if the Committee is of opinion that the precautions claimed by the applicant as being sufficient to ensure safety to human beings or animals are not such as can be easily observed or that notwithstanding the observance of such precautions the use of the insecticide involved serious risk to human beings or animals, it may refuse to register the insecticide. (3A). In the case of applications received by it prior to the 31st day of March, 1975, notwithstanding the expiry of the period specified in sub-section (3) for the disposal of such applications, it shall be lawful and shall be deemed always to have been lawful for the Registration Committee to dispose of such applications at any time after such expiry but within a period of one year from the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be a misbranded insecticide within the meaning of sub-clause (vi) or sub-clause (vii) or sub-clause (viii) of clause (k) of section 3, until he has been informed by the Registration Committee of its decision to refuse to register the said insecticide. (2). No person shall, himself or by any person on his behalf, manufacture any insecticide except under, and in accordance with the conditions of, a licence issued for such purpose under this Act. Section 21 of the Act deals with the powers of the Insecticide Inspectors. Section 22 says about the procedure to be followed by insecticide inspectors. Section 27 deals with prohibition of sale, etc. of insecticides for reasons of public safety. Section 38 reads as follows: 38. Exemption:- (1) Nothing in this Act shall apply to - (a). the use of any insecticide by any person for his own household purposes or for kitchen garden or in respect of any land under his cultivation; (b). any substance specified or included in the Schedule or any preparation containing any one or more such substances, if such substance or preparation is intended for purposes other than preventing, destroying, repelling or mitigating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services and technology with such exceptions, modifications and adaptations, as may be specified by it by notification in the Official Gazette. Prior to the enactment of the Foreign Trade Act, Imports and Exports, were regulated under the Imports and Exports (Control) Act 1947. In the decision in Glass C.I. U Asson. v. Union of India and others (AIR 1961 Supreme Court 1514), the Apex Court had occasion to deal with the challenge to an order issued under the Imports and Exports Act on the grounds inter alia that there is violation of Article 19 (1) (g) in empowering the state to deny licence on the ground that canalisation was contemplated. The Apex Court considered the challenge and upheld it by holding that there was no violation of the fundamental right. In Dy.Asst. I S. Controller v. K.M.Corpn.(AIR 1972 Supreme Court 935), the Apex court was dealing with the case again under the Imports (Control) Order 1955. The court took the following view; An applicant has no absolute vested right to an import licence in terms of the policy in force at the time of his application because from the very nature of things at the time of granting the licence the authority concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested or accrued right cannot be taken away. In paragraph 26 of the Judgment, the Court held as follows: 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. 16. From the above cited decisions, we arrive at the following conclusions: An executive instruction or a policy, which is not a statutory document, cannot form the basis for creation of an enforceable legal right. This obviously is based on the principle of law that executive instructions by themselves are policy, which could be amended at any time, could not form the basis to claim fundamental right under Article 19 (1) (g) of the Act. As far as notification under Section 5 of the Foreign Trade Act is concerned, it is not mere executive instructions, but it is a subordinate legislation and it is law. It can form the basis of a legal right. A person carrying on trade or business in import can complain about the violation of fundamental right to carry on trade or business. After the Foreign Trade Act, the matter is governed on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is registration obtained under Section 9 of the Act or because Section 17 of the Act provides that import can be done in terms of the Registration, it would still be a matter which is regulated in terms of the law relating to import and export which at the time of the enactment of the Act was contained in the Import and Export Act 1947 and after 1992 the Foreign Trade Act. Insecticides not intended to be used as insecticides and therefore exempted under Section 38 will not come under the Act. Therefore, there cannot be much significance to the effect of Section 2 in respect of insecticides not intended for insecticidal purposes. Of course, even in respect of insecticides which are not intended for insecticidal purposes, they can be regulated like any other goods under the terms of the Foreign Trade Act. The only issue would be whether any such restrictions contained therein is otherwise legal or ultra vires. Whether the condition imposed is ultra vires the Act? 19. The foremost question is whether it is ultra vires the Act. We have already referred to the relevant provisions viz. import of boric acid is free but it is made subject to certain conditions. We notice that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said that the intention of the Parliament is that it should be completely unregulated. When Parliament makes the law, several aspects would be taken into consideration. Parliament knows best the needs of its people. Parliament knows which are those commodities and persons which must be regulated and the extent in which they should be regulated. The theory of laise faire states that the ideal state leaves its people free. But, then it becomes the duty of the Parliament to make Laws from time to time to deal with various situations where laws are found necessary. Death of both human beings and animals activated the legislative process culminating in enactment of the Act. Primary concern of the Act appears to be ensuring safety of both human beings and animals from the use of insecticides and protecting them from the use of insecticides as insecticides. There are insecticides which have multiple uses and Section 38 of the Act indeed exempts such insecticides which are intended for non insecticidal uses from the Act. We would think that parliament intended that restrictions and regulations in the Act were not meant to apply to insecticides covered by Section 38 of the Act. Apart fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s assigned to the Board by or under this Act. Section 5 (ii) also provides for performance of other functions assigned to it by under the Act. 3) Rule (3(f) of Insecticides Rules, 1971 inter aia provides as follows; 3. Functions of the Board: The Board shall, in addition to the functions assigned to it by the Act, carry out the following function, namely ; xxxxxxx xxx 3 (f). carry out such other functions as are supplemental, incidental or consequential to any of the functions conferred by the act or these rules. 24. There is a like provision in regard to the Committee. Undoubtedly , it is true that under Section 38 insecticides not intended for insecticidal uses are not covered by the Act. The purport of the Insecticides Act is to prevent danger to human and animal life from the use of insecticides. It is also intended to ensure registration of insecticides which are found to be efficacious. Some insecticides have multiple uses. There is no dispute that boric acid is one such insecticides. When such insecticides are intended for use for non insecticidal use no doubt the provisions relating to registration under Section 9 and various other provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner. If it is not an area covered by legislative enactment, then certainly, unless it in any way affects the rights of its people or fundamental rights, executive must be free as long as it exercises it inconformity with the Constitution. In this regard we are of the view that if a person intends to import insecticides for non insecticidal purposes, then there should some checks and balances to ensure that it is not mis used. The issue as to how the executive power should be exercised would essentially be left to the executive. The question which is apposite in this regard would be this. Can, in exercise of the executive powers, the Government provide a system of checks and balances which is identical to the regime of the Registration under Section 9 of the Act. If that is admitted and established, that it is absolutely similar to the system of registration as such, it may be bad. 26. The Form which is relevant for the registration under the Act is Form 6. The statutory authorities have a duty to ascertain whether the claim made by the applicant in the written application form is tenable and to verify whether the safety aspects are taken care of and the registration is granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned of the Central Government. The insecticidal and non insecticidal use of boric acid have been given in the Annexure R2(c) order. It is by communication dated 1/8/2005 it is ordered that in super cession of all previous instructions issued, import of boric acid for non insecticidal use may be allowed as per the same procedure and guidelines in regard to the import of other insecticides for non insecticidal use i.e. on the basis of import permit issued by the Registration Committee on the recommendation of the nodal Department/Ministry. Annexure R2 (i)8 is the application for grant of permit for import of insecticides for non insecticidal use. R2(i) 8 is as follows: APPLICATION FOR GRANT AOF PERMISSION FOR IMPORT OF INSECTICIDES FOR NON INSECTICIDAL USE 1. Name of the importer along with complete address. : 2. Address of premises where the the imported material shall be used. : 3. Name of the insecticide to be imported : 4. Annual quantitity required to be imported. : 5. Name and address of the source of origin from which the material is proposed to be imported. : 6.Purpose of imported (specify the use and enclose valid licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as follows: (i). A simplified registration proceedure be put in place by the RC within the next 6 months by applying, with necewssary modifications, as may be required, the same data and related requirements for registration of multi use pesticides which are already in use and are being manfuctured/imported without registration, as are being applied to cases of registration for ecport. All manufacturers/importers who intend to use such insecticides for insecticidal end use may be informed of such simplified/relaxed rgistration requirements by the Registration Committee by 31/12/2006 and they be given an opportunity to generate the date and apply for registration so as to complete the registyration process within a period of 2 years thereafter. (ii). Status-quo ante be maintained in respect of the mode of regulation of all unregistered multi=pesticides, includign boric acid, being manufactured indigenously for the intervening period, i.e the period after the manfucturers/importers apply for registration until the grant of the registration certificates. Further during this interening period, the indigenous manufactuers of such pesticides be required to declare to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Nodal Ministry has not been submitted. Likewise in respect of Barium Carbonate, Benzo, etc.among other chemicals decisions are seen taken. Ext.R3(k) purports to be form of application for grant of permit for import of insecticide for non insecticidal purposes. 30. The writ petitioners seek to draw support from the Circular dated 22/6/2011 issued by the Central Board of Excises and Customers therein after referring to Section 38 of the Act , it is stated as follows: As may be seen, the aforementioned provisions of the said Section 38 of the insecticides Act, 1968 are unambiguous and leave no scope interpretation. Essentially, the exemption from the provisions of the said Act would apply to those insecticides that are used for house hold purposes, etc. or for other than insecticidal purposes. Thus import of items listed under schedule 3 of the said Act that are intended to be used for these purposes that are specified i the said Section 38 would be outside the ambit of the provisions contained in Insecticides Act, 1968. The implication is that the clearance of such imported items would not be subject to the requirement of registration/import permit from CIB RC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration the Law apparently permits it. 34. Under Section 38 of the Act what is provided is that when insecticides are intended to be used for non insecticial purposes, the provisions in the Act will not apply. It is certainly open to the government to put in place sufficient safeguards to ensure that actually only insecticides which are genuinely intended for non insecticidal purposes are taken out of the purview of the Act and the restrictions and controls are which are provided therein. It is in this context when the importer of boric acid is not able to establish the end use it is not open to the trader to say that he should be allowed to import boric acid ostensibly for non insecticidal purposes. It is fraught with the danger that the imported quantity is diverted for insecticidal purposes. If such diversion happens, certainly it could lead to a situation where the purpose of the Act itself would be defeated as there could be large quantities of insecticides having multiple uses being imported in the guise of being employed for non insecticidal purposes but falling into the hands of those who use it as insecticides. Insecticides being used as insecticides forms the subject ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly subject to the control envisaged under the Constituion through the doctrine of ultravires. The court will not sit in judgment over the wisdom of the measures. Wide latitude is usually shown in matters of economic policies by the Court. Therefore, in such circumstances we see no merit in the contention of the writ petitioners that the restriction deprives the traders of their right to import. They only had such right as is vouchsafed to them under the extant policy and law. In this case, only those who are able to produce import permit alone can have the limited right to import. If they intend either as traders or anyone else for that matter to import boric acid to be used as an insecticide, then in view of section 9 of the Act certainly the must obtain registration under the Act. 36. No doubt, under the notification issued under the Foreign Trade Act Foreign Trade Policy is announced, it will then become a statutory instrument. As already noticed, a legal right would accrue to the person concerned to import without any licence or permission. Then, to require him taking out of import permit as a condition for importing insecticides being used for non insecticidal purposes, ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed by the Supreme Court. The Court took the view as follows inter alia: 47. Once a law occupies the field, it will not be open to the State Government in exercise of its executive power under Article 162 of the Constitution to prescribe in the same field by an executive order. However, it is well recognized that in matters relating to a particular subject in absence of any parliamentary legislation on the said subject, the State Government has the jurisdiction to act and to make executive orders. The executive power of the State would, in the absence of legislation, extend to making rules or the state would, in the absence of legislation, extend to making rules or orders regulating the action of the executive. But, such orders cannot offend the provisions of the Constitution and should not be repugnant to any enactment of the appropriate legislature. Subject to these limitations, such rules or orders may relate to matters of policy, may make classification and may determine the conditions of eligibility for receiving any advantage, privilege or aid from the State. 48. The powers of the executive are not limited merely to the carrying out of the laws. In a welfare State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case has been exercised in relation to the matter which is the subject matter of Section 9. In other words, the executive orders relate to providing for a procedure for the Government to control the import of multi-use insecticides so that those insecticides are imported only for non insecticidal purposes as intended. The writ petitioners have not been able to establish that members of the Board of the Registration Committee, who have been appointed by the Government, are being asked to discharge any duties which violate terms of their appointment or the duties which could be assigned to them in terms of the orders of appointment. There is nothing in the Act in relation to deprive them off their authority conferred under executive orders to process applications for import permit. 40. Equally without merit is the contention that the Government in exercise of the executive power cannot provide for the issuance of import permit. Import permit no doubt is not a concept which is to be found in the Act. As already noticed, the matters which are provided in the Act are applicable only to insecticides which are used as insecticides. When they are not intended to be used as insecticides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to note that executive orders were holding the field. providing for import permit and it is apparently taking note of such procedure that the authority under the Foreign Trade Act provides such condition in Ext.P5. It is to be noted in this context, the authorities under the Foreign Trade Act Customs Officers may not be equipped with necessary information and inputs which are needed for regulation of indiscriminate import of insecticides purporting to be made for non insecticidal purposes, but which were not meant to be so used. The competent authority which would have the technical authority would be the expert body viz. the Board and the Registration Committee. The requirement of end use being certified, may have to be cross checked in the context of other inputs and on being satisfied of the genuineness of the claim import permit is issued which would entitle the permit holder to freely import boric acid meant for non insecticidal purposes. We do not think that mere absence of concept of import permit in the Act which admittedly does not apply to insecticides intended for non insecticidal purposes would in any way deprive the authority of insisting for import permit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of registration under the Act on the basis of a certificate of end use issued by the concerned Administrative Ministry or the Department of the Government of India. In regard to traders, it is stated that as the end use of the boric acid in respect of import by traders cannot be verified, they would require registration with CIB RC. In Ext.P3 dated 6/9/2005 issued by the Ministry of Finance, Department of Revenue, after referring to Ext.P1, it is stated that the Ministry of Agriculture has clarified that import of boric acid for non insecticidal use may be allowed as per the same procedure and guidelines with regard to import of other insecticides for non insecticidal use that is only on the basis of import permit issued by the Registration Committee. Also reference is made to the requirements being in addition to the Ministry of Agriculture specified in paragraphs 2 and 3 of Ext.P1. This would mean that traders who import boric acid, must take out registration as the end use cannot be verified. We notice that the writ petitioners have not called in question what is produced as Annexure R3(i) which we have already extracted. Essentially the purport of import permit is to ensure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out registration under the Act in Ext.P5. We notice that as far as import notification is concerned as contained in Ext.P5, there is no requirement of taking out registration though the learned counsel Sri.Gopinatha Menon would point out that what is meant is only import permit. We would think that the learned Single Judge has not appreciated the relevant aspects properly. As noted, the learned Single Judge proceeded as if what is required is taking out registration. 44. It would appear, from the document produced, that import permits have been granted not only for boric acid but for other chemicals/insecticides. What would have been unworkable would have been insistence of registration when it is sought in respect of insecticide not intended for insecticidal purposes. But, that is not the case here. When boric acid is sought to be imported for non insecticidal purposes under the Foreign Trade policy, no registration under the Act is required. The learned Single Judge was in error in thinking otherwise. That appears to be basis for finding that the condition imposed is on impossible condition and it involves directing the authority under the Act to do something which they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave quashed Ext.P5. Whether there is hostile discrimination and whether Article 14 is violated? 46. The next question which arises for consideration is whether there is discrimination. A plea of discrimination is founded upon Article 14 of the constitution. Article 14 of the Constitution is available to citizens and persons who are not citizens. In substance it provides for three principles. Equals must not be treated as unequals. Unequals must not be treated as equals. Last, but not the least, the action of the State must be free from arbitrariness as arbitrariness is a sworn enemy of equality. In this case, apparently the argument is that by the imposition of the impugned clause there is discrimination in so far as while restriction is imposed on imported boric acid on no other insecticide, it is imposed. Many insecticides are more dangerous than boric acid. The government does not display the same level of concern as is projected in the case of boric acid. In this regard, we may refer to the pleading in the writ petition from which W.A. No. 617/2012 arises. What is stated in ground E is as follows : E. Ext.P5 is grossly discriminatory and not issued on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cides . It is pertinent to note that there is no such requirement in the statutory policy in regard to other insecticides. Discrimination and arbitrary conditions are imposed only in regard to the boric acid in the statute. 49. Under 2004 - 2009 policy column 1 provides for EXIM Code, Column 2 provides for item description, column 3 contains policy. The restrictions contained are of two types viz. Prohibited and Restricted. Items which do not require any licence under the Exim policy have been denoted as Free subject to the Licensing Notes contained in the relevant chapter/heading/sub-heading or as may have been indicated under column 4 mentioning conditions relating to the policy and is also subject to any other law for the time being in force. Column 4 deals with Policy Conditions. The precise restriction are detailed in this column. It is further provided that the details of the conditions and restrictions are given at the end of the chapter would also be restrictions. It is also provided that it is not to be understood that there may not be other conditions applicable on imports. 50. Chapter 38 deals with Miscellaneous Chemical Products. It is provided in the Heading N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven to import without licence, is subject to the above conditions. Of course, the learned counsel for the writ petitioners would point out that under the Prior Informed Consent Procedure, the condition which is imposed on the importers of boric acid is not imposed. Under the terms of the Prior Informed Consent Procedure what is required is after the import is carried out, the importer would have to comply with the procedure. 53. We would think that this is a case where the learned Single Judge has not pronounced on the case set up that there is violation of Article 14 based on the alleged discrimination. We find that there is no denial of the same by the appellants. But,at the same time, we noticed materials which are produced before us including the case based on the various entries in Chapter 38. There are also the conditions which are attached to the policy. Even though prima facie we would think that, in view of the requirement attached to the import of the various insecticides and categories of 'other' as already noted that, the insecticides to be imported must be registered and therefore the plea of discrimination appears rather untenable, we would not like to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be quashed and there was a direction to refund the duty paid by the petitioner within a period of three months. 55. No doubt, if the restriction had not been imposed by law (the amendment on 7/4/2006to the statutory policy), the question would arise as to what is the effect of executive instructions on the right to import boric acid as per the statutory policy till the date of the amendment that is 7/4/2006. An executive order cannot impinge on a legal right. There was a right available under the extant statutory policy before the amendment. It could be said that an executive order could not have imposed a restriction on the right available under the policy. But, after the amendment with effect from 7/4/2006 the issue is purely academic as restriction is placed by statutory amendment. 56. As we have noticed, as far as W.A. No.1653/2013 is concerned, it is to be noted that the writ petition is against the circular. Since the circular placed restriction on the legal right under the unamended statutory policy to import, the circular, in so far as it prohibited traders from import of boric acid for non insecticidal purposes, cannot be supported. But, at the same time, the directi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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