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TMI Blog1962 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... e appel lant's licence permitted him to import the "Terpene and its derivatives excluding preparations thereof", which find mention in the List. 3. The licence related to the licensing period October 1958 to March 1959 and permitted importation of drugs from soft currency area, in this instance, West Germany. The licence was valid for purposes of importation up to the 31st August, 1959. 4. The goods actually imported by the appellant were a consignment of Camphor B. P. The two serial numbers of Part IV of the Schedule we have referred to, contained no reference to Camphor which was dealt with separately under another item bearing serial No. 131 for which the licensing policy for established importers during the period in question was 'nil', that is to say, importation of Camphor was completely forbidden. 5. The appellant did not directly import but placed orders with the indenting house of Messrs. Arun and Co. a partnership firm carrying on business also at 5, Pollock Street. 6. As indicated the consignment was shipped from a West German port, on the 24th August, 1959. The vessel arrived at the Calcutta port on the 19th October, 1959 carrying the consignme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd July, 1959 this last letter was countermanded by the Assistant Drugs Controller who hastened to point out that his previous letter related to the licensing period October 1958 -- March 1959 but in the current licensing policy the entry had been changed to 'Terpene, Hydrate excluding preparations thereof. He added that the proper authorities from whom an interpretation of the policy should be obtained was the Joint Chief Controller of Imports and Exports and the Assistant Collector of Customs, Calcutta. He closed the letter with these words, "No responsibility devolves on me for the statement made in my letter No. ADC-5/59/605 dated 12th June, 1959 to you which was issued by oversight and is hereby cancelled. The letter should please be returned to me immediately." On the 8th July, 1959 the Assistant Drugs Controller again wrote to the appellant's indenting agent to say that Camphor B. P. was a pharmacopoeial drug and since it was not a new drug, no question of its approval under the Drugs Rule 30-A arose. On the 13th July, 1959 the Controller of Imports wrote to Messrs. Arun and Co. drawing attention to the Department's earlier letter dated the 5th June, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Drugs and Medicines covered by serial Nos. 87 and 109 of Part IV of the import Trade Control Policy Book. He challenged the correctness of the allegation that he had no valid licence which authorised importation of Camphor and referred to the Public Notice issued by the Controller of Imports on the 9th January, 1959 and other correspondence which according to him showed that Camphor B. P. being a derivative of Terpene was completely cowered by the Drugs and Medicines licence he held. His case further was that although there was a number of items which had been classified separately under a particular serial number of the Import Trade Control Schedule, they are allowed importation under a different serial number of that very Schedule. He instanced the cases of Yellow Pottash, Borax and carbonate Ammonia and he desired to be heard in person by the Assistant Colfector of Customs, Appraisement. 11. The appellant was given a personal hearing 2nd the Assistant Collector of Customs, Appraisement, after referring to the material before him came to the conclusion that the consignment of Camphor B. P. was not covered by the licence which the appellant held. The main reason for the conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make provisions for prohibiting, restricting or otherwise controlling, in all cases or in specified classes of cases, the import and export of goods of any specified description. Sub-section (2) provides that the goods to which any order under Sub-section (1) applies shall be deemed to be goods of which the Import or export has been prohibited or restricted under section 19 of the Sea Customs Act, 1878 and all the provisions of that Act shall have effect accordingly. Section 4 continues in force all orders made under Rule 84 of the Defence of India Rules or the rules as continued in force by the Emergency Provisions (Continuance) Ordinance, 1946. 16. It is thus clear that the Central Government took powers to make orders regulating, restricting, controlling or prohibiting imports and exports of goods into or out of the country. In pursuance of this power the Imports (Control) Order, 1955 was made and it has a schedule to which we have to refer for the purpose of considering the cases of the respective parties. The schedule in its turn is divided into several appendices. Some of these appendices contain list of goods in respect of some of which there is ban on importation; while i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the import trade. It is to be noticed that the licence which was issued in favour of the appellant was one for established importers. There are several categories of Importers, established importers being one of them; others are actual users and newcomers. We are concerned in this case with the category of established importers since the appellant was given a licence on a quota basis on the footing that he had been in the import trade for some time. 18. At the hearing of the appeal frequent references were made on both sides to certain instructions contained in the Red Book to which we have referred. We have doubts whether those instructions are anything more than mere departmental advice or executive instructions, since they do not appear to form part of the Imports (Control) Order which has statutory effect; but the schedule and the appendices attached to it are different since they are part of the Imports (Control) Order which has statutory effect. We do not think therefore it would be right to rely upon departmental instructions and we do not propose to do so, at any rate in support of the Department's contentions, although perhaps a concession may be made in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orates the provisions of the Sea Customs Act and says that the law for the time being in force relating to Sea Customs shall with certain modifications apply to drugs the import of which is provided under Chapter III of that Act. Section 10 of the Drugs Act provides that with effect from the date to be notified by the Central Government, no person shall import any drug, for the import of which a licence is prescribed, otherwise than under and in accordance with such licence. Section 12 (2) (a) gives power to the Central Government to specify the drugs or classes of drugs for the import of which a licence is required, and prescribes the form and conditions of such licence, the authority empowered to issue the same, and the fees payable therefor. Turning to the Drugs Rules it appears that licensing authority has been defined by Rule 21 as authority appointed by the central Government to perform the duties of the licensing authority under these Rules. Rule 23 says that a licence shall be required fOr the import of any biological or other special product specified in Schedule 'C' or C (1). But turning to the schedules it seems clear that Terpene and its derivatives do not find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the licensee. The appellant's contention is that if an article is intended to be banned altogether, it requires to be expressly banned everywhere under all the items of the schedule. A general ban on its use is insufficient. There are various uses to which an article may be put; for example it may be put to general use, to medicinal use, to laboratory use, to chemical use; and in order that the Department may be heard to sey that all uses have been banned, there must be express provision in the schedule which sets out Government's import policy. It has also been argued that a general ban in the Schedule cannot be regarded as arr absolute ban. There must be specific ban imposed on all other heads under which an article can be imported into the country, To illustrate the proposition that a general ban is wholly insufficient to exclude importation of particular items of commodities, our attention was drawn to several serial numbers in the schedule. It would be necessary to take note of them, and examine the contention that a ban like the one imposed on Camphor is wholly insufficient for the purpose of holding that Camphor 8. P. which is a recognised drug was intended to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that Agar Agar is a kind of food and yet its use as food is not permitted although as drug or medicine its use is allowed. With regard to serial No. SO (c) the policy for established importers is said to be nil; that would mean and imply that no licence can be issued to an established importer to bring into the country other kinds of food which, it is said would include Agar Agar. It does not, however, appear to be clear by any means that item 80 (c) can with any reasonable certainty be said to refer to Agar Agar as an article of food. Similarly, with regard to Parafin liquid B. P. or U.S. P. or its preparations, the argument has been that since it finds mention in List II which is described as a list of forbidden articles, there is relaxation with regard to the same item in serial No. 17 (b) in Part V; the Joint Chief Controller is indicated in the schedule to be the licensing authority and the policy for established importers is that Paratin liquid 10 per cent "general" and 10 per cent "soft" may be allowed. The licence if issued will be valid for six months. In the remarks column the entries read as "(i) quota licences will be vajid for Import of liqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specific exclusion, more express than the one which has been made in respect Of Camphor. It is true that the schedule and the appendices have to be read together and one cannot be studied in isolation from the rest. Even so we think that when an express ban has been imposed which is unequivocal, there can be no question of any kind of doubt arising as to the legislative intent. The Courts are not permitted to enquire into the reasons why a ban has been imposed upon a particular article; they are only concerned to see whether the article in question is or is not covered by the license read with reference to the relevant items in the schedule and in the appendices taken as a whole. 26. A cognate contention has been that a general ban on Camphor is wholly insufficient to defeat the appellant's right under the licence to import Camphor which is one of the derivatives of Terpene. It has been said that drugs of the B. P. or U. S. P. category have been The subject of separate treatment and if the intention was to impose a ban even on such drugs recognised by the British pharmacopoeia or the United States Pharmacopoeia, a more emphatic ban was necessary to be imposed in order to exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axim of law', said the Judicial Committee in Attorney-General for Ontario v. Mercer, (1883) 8 AC 767 at p. 778, 'that every word (in a statute) ought prima facie to be construed in its primary and natural sense, unless a secondary or more limited sense is required by the subject or the context.' This doctrine is clear from a long list of authorities which appear all to be founded on the case of Strading v. Morgan, (1560) 1 Plowd 199 at p. 204, where it is said as follows: 'The Judges of the law, in all times past, have so far pursued the Intent of the makers of statute, that they have expounded Acts which are general in words to be but particular where the intent was particular..... The sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter they have expounded to extend but to some things, and those which generally prohibit all people from doing such an act they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ganga Setty v. Collector of Customs, Madras, . The question there was whether feed oats imported as food for horse would fall within entry no. 42 in Part IV of the Import Trade Control Schedule, corresponding to item 12(5) of the Indian Customs Tariff, viz., "fodder, bran and pollards" or whether they would be covered by entry No. 32 of the schedule corresponding to item 10 of the tariff, namely, "grains" and therefore no special licence was required for their import. The learned Judges held that where there was statutory provision granting exemption to a certain class of goods, the question as to what particular goods would fall within that class would be decided by a competent Court. There was in that case a doubt as to the true meaning of the word "fodder" and reference was made to the Oxford Dictionary for the purpose of ascertaining what the word meant. It was held that oats were undoubtedly food for horses, though they might also be used as food for men. On reference to the evidence they expressed the view that the Consignment in that case had been imported for use as food for horses. Thus there being doubt as to the true import of the word d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impression which might have been created by his letter of the 12th June, 1959. We find nothing improper in this; as soon as it was realised that the position should be made clear no steps were spared to do so. The public notice dated the 9th January issued by the Controller of Imports merely emphasized that any derivative of Terpene to be imported would have to comply with the provisions of the Drugs Act. The notification does not say anything further. The next letter of June 5 from the Assistant Controller of imports addressed to the Appellant's indenting agent is entirely colourless and It proceeds on the basis furnished by the appellant himself or his indenting agent that Camphor is a derivative of Terpene. To the fetters of the 12th June as well as of the 3rd July from the Assistant Drugs Controller we have just referred. The next important communication is from the Controller of Imports dated the 15/16th July which clearly emphasized the total ban on Camphor in any form or grade. It stated "Camphor of any quality or grade is totally banned for import and in this connection your attention is invited to the entries made under serial No. 131 Part IV (Red Book for Oct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s indenting agent. An irrevocable letter of credit was opened on the 9th July in furtherance of the indent. In the face of this fact it is impossible to accept the contention that the appellant had been misled by the Department's letters or that he had no means of knowing on the date of indent that Camphor B.P. was not permitted to be imported under his licence. The learned trial Judge entertained doubts as to whether the appellant had in fact been misled, and whatever material there exists on the record appears to us to support that conclusion. 35. The letters aforesaid have been put to another use. It has been stated that the Department acted in bad faith and the allegation was made that although the appellant's consignment was confiscated, the consignments of several other firms and individuals were allowed to be cleared quite a long time after his consignment had been withheld. On this part of the case we have to recall the statement contained in the affidavit-in-opposition affirmed by the Assistant Collector of Customs, Appraisement, himself. He denied that he or any other of the respondents had acted in a mala fide manner and explained that the goods which had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book that the argument of hardship is a great snare and it is sometimes dangerous to listen to it; such argument is apt to introduce bad law and lead to erroneous interpretation of statutes. The Courts ought not to be influenced by notions of hardship; they ought, on the other hand, to look hardship in the face rather than break the rules of law. (Maxwell, 9th Ed., page 214). 38. The amendment made in Appendix XIX changing "Terpene and its derivatives" into "Terpene Hydrate" for the subsequent licensing period commencing from April 1959 has been stressed with a view to emphasise that the authorities concerned saw the need for a change with the result that a change was made. Penal statutes, it has been said, ought to be strictly construed, particularly when ft involves a possibility of infringement of freedom of trade. We do not propose to refer in retail to the observations of authority like Maxwell cited in aid of the contention. It is true that a proceeding under section 167(8) of the Sea Customs Act is a penal action and it has in tact resulted in an order of confiscation. Section 5 of the Imports and Exports (Control) Act provides that a contravention or ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were to hold that the entry also banned Camphor B.P., we would in fact be reading into it a further exception which it would never be permissible to do. This argument is easily met by the fact that taking the item as it is we have to construe it with reference to another item, namely item 131 occurring in Part IV of the same schedule. If one compares the two items and reads them together it would not certainly be reading something into the items or adding to them or taking anything away from them. On the appellant's own contention this item "Terpene and its derivatives excluding preparations thereof has to-be taken in the context of the schedule and the appendix. We do no more than this; only that we take into account another item, serial No. 131 which is directly relevant and expressly excludes Camphor. By so reading we are surely not adding to or taking away from the item in any way. 40. These are the contentions raised on behalf of the appellant; we have found no substance in any of them. 41. We have then to consider whether in a writ appeal the questions which have been raised can properly be raised; although we have dealt with them out of deference to arguments of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction when shown." Earlier the Supreme Court had held in the case of veerappa Pillai v. Raman and Raman Ltd., that the High Court will interfere only in grave cases where subordinate Tribunals act without jurisdiction or in excess of it or in violation of the principles of natural justice or refuse to exercise a jurisdiction vested in them or there is an error apparent on the face of the record. However extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the impugned decision. In Nagendra Nath v. Commr. of Hills Division, , the position was re-affirmed and it was held that the High Court had no power under Article 226 of the Constitution to issue a writ of Certiorari in order to quash an error of fact even though it may be apparent on the face of the record, it can do so only where the issue is one of law and apparent on the face of the proceeding. Any error of law or fact which it can correct as a Court of Appeal or Revision cannot be a ground for the exercise of its power under that Article. So long as the hierarchy of officers and appellate authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order; and lastly we have to see whether there Is an error of law apparent on the face of the record which would justify the issue of a writ. 44. It has not been argued that the Assistant Collector of Customs, Appraisement, who made the order of confiscation, acted without jurisdiction or exceeded his jurisdiction. Indeed he had the power to act under the law and in exercise of that power he called upon the appellant to show cause why his consignment of Camphor should not be confiscated. The appellant showed cause and asked for a personal hearing. He was given a personal hearing. There can thus be no violation of the rules of natural justice, it remains to see whether there is any error of law apparent on the face of the record. Indeed, the argument based on a laborious research of the schedule and the appendices of the Import Trade Control Policy clearly demonstrates that there is no error apparent on the face of the record. The error, if any, has to be an apparent error. The Supreme Court had occasion in the case of Satyanarayan Laxminarayan v. Mallikarjun Bhavanappa, , to consider what constituted an error apparent on the face of the record which would justify the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave its use as a drug, but the ban upon it is a total ban without any qualification. If the ban was not unequivocal, the appellant's contention might have substance. Plainly Terpene has many derivatives and it has not been suggested that Camphor is the only derivative. The licence properly construed would therefore mean that it gave the appellant the right to import all derivatives of terpene excluding camphor, drug or non-drug. 46. Even if we assume that the authority charged with the duty of deciding on confiscation committed an error, it could not be said to have acted without, jurisdiction or in excess of it or in violation of natural justice. An errors are not amenable to the writ of certiorari. The error if any far from being apparent on the face of the record, requires to be established by research into the intricacies of the schedule and the appendices. It does not satisfy the test laid down by the Supreme Court (Mohammad Nooh's case, 1958 SCA 73: (AIR 1958 SC 86) that the error to be corrected by certiorari must be one "so patent and loudly obtrusive that it leaves on the decision an indelible stamp of infirmily or vice which cannot be obliterated or cured on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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