High Court (India)

August 28, 2019

There is no fundamental right to import anything without restrictions, or only on terms beneficial to a particular person: Bombay HC


[ by Legal Era News Network ]

Justices-S-C-Dharmadhikari-&-G-S-Patel

The regulatory body for imports of poppy seed into India is the Central Bureau of Narcotics (CBN). The proposed import in question is from Turkey. There are specific guidelines with respect to poppy seed imports from Turkey. The guidelines determine a country cap which is to be approved by the Department of Revenue, based on a recommendation by the Narcotics Commissioner, a representative of the Directorate General of Foreign Trade, and a representative of the Department of Revenue. According to the clause, the country cap will be based on stock and production of poppy seeds as communicated by the Turkish Grain Board (TMO) or the Turkish Embassy in India.

The procedure to be followed requires an Indian importer to approach the Narcotics Commissioner for registration of the sales contract. The registration calls for certain conditions to be fulfilled. According to the Petitioners, the process of registration would create a monopoly in the hands of big players, and that the old system of drawing of lots was preferable. The Petitioners further argued that once a Turkish exporter is registered with the Turkish Board, or TMO, then requirement of the Indian importer having to register is arbitrary and unreasonable. It is a duplication of work.

Further, the guidelines issued by CBN on the annual cap or quota on poppy seed import from various points of origin, was seen by the Petitioners who were registered importers of poppy seeds, as an unconstitutional restriction on their right to trade and carry on business.

The Bombay High Court ruled that there is no fundamental right to be an importer. There is no fundamental right to import poppy seeds. There is no fundamental right to import anything without restrictions, or only on terms beneficial to a particular person. The burden is on the Petitioner is to show that the notification is manifestly arbitrary, i.e. that a patent arbitrariness exists on the face of it, without requiring any convoluted argumentation.

By a Notification dated 29th July 2016, the Government of India had conferred powers on the Department of Revenue to frame guidelines (fixing country caps, imposing limits on import quantities per importer etc.). The Court further ruled that the aim of the Notification is to provide guidelines and to restrain exercise of unfettered discretion. The Notification guidelines serve to filter out all but genuine and bona fide importers and prevent cartelization, artificial blocking of country caps, and artificial raising of re-sale prices.

The writ petition was dismissed.

A Bench of Justices S.C.Dharmadhikari & G.S. Patel presided over the case.

Full View Judgement




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