TaxTMI 
TaxTMI 
2018 (2) TMI 1199
X X X X Extracts X X X X
X X X X Extracts X X X X
....(Annexure- W) and quash the same. 2. In W.P. Nos.42295-42297/2016, the petitioner - M/s Om Traders has sought for the following reliefs: i) A writ in the nature of certiorari quashing the Impugned Notification bearing No.17/2016-20 dated 29.07.2016 (Annexure-T); ii) Hence it is prayed that this Hon'ble Court may be pleased to stay all further proceedings on the file of the Respondents pursuant to Impugned Notification No.17/2016-20 dated 29.07.2016, pending disposal of the writ petition and thus render justice. iii) Hence, it is prayed that this Hon'ble Court may be pleased to grant an order of Ad-Interim Injunction restraining the 4th Respondent herein from in any way acting with respect to import of Poppy Seeds pursuant to the entrustment of powers flowing from the Impugned Notification dated 29.07.2016 in Notification No.17/2015-20 pending disposal of the above writ petition and thus render justice. iv) Hence, it is therefore prayed that this Hon'ble Court may be pleased to issue an order of writ or direction, more particularly a Writ of Certiorari calling for the records relating to the order of the 1st Respondent in Notification No.17/2015-20 dated 29.07.2016 (A....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Allahabad High Court and the Allahabad High Court by its order dated 29.11.2013 had made certain observations to be considered in respect of import of poppy seeds into India. In pursuance of the order passed by the Allahabad High Court, the Department of Revenue, Ministry of Finance, Government of India vide communication in No.F.No.N16 22012/3/2013-NC-I dated February-2014 addressed to the Narcotics Commissioner, Central Bureau of Narcotics, Gwalior has stated as under: "2. The competent authority has approved the following guidelines for registering of import contracts by the Narcotics Commissioner: i) For the current financial year (2013- 14), in which there are less than 2 months left, imports may be permitted on the basis of valid import contracts, subject to country caps. The caps for the countries may be determined by the Narcotics Commissioner after ascertaining the production and stocks of the respective countries. No imports would be allowed from a particular country, once the cap for the said country is reached. To implement this decision, Narcotics Commissioner will have to be in regular touch with the Customs authorities of the ports of import about the q....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rom China Czech Republic. 10. It is further case of the petitioner that vide public notice No.F.No.XVI/4/93/N/PS/CC/2014 dated 17.11.2014 the 4th respondent furnished the details of quantity of white poppy seeds available in Turkey for export to India as on 30.09.2014 and further informed that final country caps were to be determined by a committee comprising of the representatives of Respondent Nos.2,3 & 4. The petitioner further contended that vide communication dated 26.12.2014 the Director (NC) representing the Ministry of Finance, Department of Revenue, Government of India informed the Respondent No.4 for finalizing the country caps for import of poppy seeds from Turkey for the financial year 2014-15 and other guidelines relating thereto. 11. It is further case of the petitioner that vide two public notices issued by the Central Bureau of Narcotics, inviting applications from importers for registration of sale contracts for import of poppy seeds into India for the year 2015-16, all importers were requested to furnish details of the poppy seeds imported by them duly endorsed by the Customs authorities. 12. The petitioner further contended that the details of total quan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ities were noticed in respect of public notices PS-4/2015 dated 10.8.2015 and PS-5/2015 dated 18.8.2015, the same were challenged before the Madras High Court by another similarly placed importer in W.P. No.27008/2015 and the Madras High Court granted an order of interim stay restraining the 4th respondent from processing the applications received in connection with the said public notices in any manner. It is the case of the petitioner that no further action should be taken on the applications received pursuant to public notices dated 10.8.2015 and 18.8.2015 stated supra. 16. It is further case of the petitioner that the 4th respondent in pursuance to guidelines issued by the 2nd respondent viz., Ministry of Finance had issued public notice No.PS-7/2015 dated 14.9.2015 in respect of registration of import contract for import of poppy seeds from Turkey. The said public notice was challenged before the Madras High Court by a similarly placed importer for being violative of Article 14 and Article 19(1)(g) of the Constitution of India in W.P. No.29806/2015 and the Madras High Court vide its order dated 5.2.2016 quashed public notice as being opposed to constitutional guarantees and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....03 and he has applied for and obtained certificate of Importer and Exporter Code (IEC) issued by the office of the Joint Director General of Foreign Trade, Bangalore for the purposes of commencing import of the aforesaid commodities and his IEC number is 0714011851. It is further case of the petitioner that in the course of its business, he sought to import 180 metric tons of poppy seeds from Turkey on the basis of a contract entered into with overseas suppliers and actually imported 90 MTs as per the import contract registered on 23.1.2015. It is further case of the petitioner that the final country cap fixed for import of poppy seeds from Turkey is 18558 MT and reading it alongwith Clause 4 of the public notice dated (Annexure-AE) all applicants are entitled to get registration for a maximum of 90 MT. Going by the country cap fixed and quota fixed for each applicant, only first 206 applicants in the priority list at Annexure-AN would be entitled for registration of the import contracts. The petitioner who is at serial No.292 is beyond the first 206 and it would therefore not be entitled to get its contract registered. Therefore petitioner will not be able to do business in poppy ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... policy as no stay is in operation either in W.P. No.42295-97/2016 pending before this Court or in any other writ petitions. The allegations made by the petitioners cannot be considered and is liable to be rejected. Further the allegations of the petitioners that the respondents have curtailed the free import of poppy seeds are completely false and baseless and all other grounds raised by the petitioners do not reveal that the public notice impugned is contrary to law or opposed to public policy and the constitutional guarantees. 25. It is further contended that upon perusal of the petitions, it is quite clear that the petitioners want to create an artificial demand for poppy seeds in the market by stalling the import of poppy seeds on false and frivolous grounds, as failure to import or nonimport of poppy seeds in time would increase the demand of poppy seeds and due to shortage of the same, there would be consequential raise in prices and hence the market would suffer. The prayers sought by the petitioners seem to be with a motive to create demand and thereby lead to raise in prices. It is also stated that the petitioners are stalling the process of import of poppy seeds on on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l Government to impose quantitative restrictions. If the Central Government, after conducting such enquiry as it deems fit, is satisfied that any goods are imported into India in such increased quantities and under such conditions as to cause or threaten to cause serious injury to domestic industry, it may, by notification in the Official Gazette, impose such quantitative restrictions on the import of such goods as it may deem fit. 29. While reading the provisions of Section 9A(4)(b) of the Foreign Trade Act, the definition of 'domestic industry', the learned counsel contended that under the provisions of Section 9, the Central Government has no power to impose restrictions. The very guidelines issued by the Under Secretary as per Annexure-AR, Government of India (Finance Ministry of Revenue) indicates that he has no power to restrict any importer. 30. He would further contend that there is no obligation on the authorities concerned with regard to the provisions of Section 3(4) read with Section 9A(4)(b) of the Foreign Trade Act and it is not the case of the Central Government that in order to protect the interest of Domestic Industry, restriction is made. While reading the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... seeds, which are imported into India may have originated in countries where the opium poppy is not licitly or lawfully cultivated. Hence, it is urged that- (i) poppy seeds, being a byproduct of Narcotic produce must be regulated with caution and this is also part of the India's obligations under the Single Convention on Narcotic Drugs, 1961, and (ii) the Central Bureau of Narcotics (CBN) merely registers contracts for import without ascertaining the origin of poppy seeds. Before it registers a contract, CBN is under an obligation to scrutinize as to whether (i) the country of origin has an available stock of poppy seeds for export, which is permitted under the Single Convention; and (ii) the country of origin is capable of exporting poppy seeds. It is also urged that CBN does not verify the certificate of origin prior to import. The CBN has registered contracts of between 1.5 to 2.00 lac metric tones, whereas the authorized quantity of production is between 50,000 to 80,000 metric tones. 33. The learned Senior counsel further contended that the affidavit which has been filed by DGFT states that registration of import contracts is the responsibility of CBN. However, Customs fiel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts shall be returned to the Office within seven days after the date of expiry of the registration. There is no nexus between the fixation and the time fixed and it does not amount to free-trade as contemplated under the provisions of Section 3(4) of the Foreign Trade Act. He further contended that by reading of the provisions of Section 5 of the Foreign Trade Act, the Central Government may, from time to time, formulate and announce (policy) the export and import policy by notification in the Official Gazette. Under Section 3(1) of the said Act, the Central Government may, by the Order published in the Official Gazette, make provisions for the development and regulation of foreign trade by facilitating imports and increasing exports. He would further contend that the Sub-clause (2) of Section 3 of the said Act has to be interpreted that the Central Government may also, by Order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any. 36. The learned Senior Counsel for petitioners would further contend that the provisions of Section 3 (2) and 3(3) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....venue Department under Section 3 of the Foreign Trade Act fixing Country Cap imposing quantitative restriction, if any, per importer or any other relevant provision as deemed necessary for the implementation of policy in Narcotics Drugs and Psychotropic Substances is contrary to the provisions of Sections 2, 3, 4 and 6(3), 11, 11(3) of the Foreign Trade Act. Therefore, as per condition No.4 of the Notification, the Department of Revenue has delegated the power to frame the detailed guidelines regarding registration of contracts with Narcotic Commissioner for importing of poppy seeds, which is impermissible in view of the provisions of Section 3(1), 3(2) and 3(3) of the Foreign Trade Act. 39. Sri D.L.N. Rao, learned Senior Counsel further submitted that the Notification dated 29.7.2016 - Annexure-AC issued by the Central Government of India, Ministry of Commerce and Industry, Department of Commerce, under condition No.3(c) delegated to the Revenue Department which is totally barred under the provisions of Section 6(3) of the Foreign Trade Act. He would further contend that while registering the application, the Narcotic Commissioner, Gwalior, never insisted the applicants licitly....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ertificate against which import has not been effected is required to be surrendered back". The learned Senior Counsel while replying to the arguments advanced by the learned Additional Solicitor General in respect of the judgment in the case of M.R.F. Limited -vs- Inspector Kerala Government and Others reported in (1998) 8 SCC 227 invited attention of the Court to para-13 of the said judgment wherein restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public. There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. If the two principles laid down not acceding, then Article 19(1)(g) of the Constitution of India attracts. 41. In support of his arguments, he invited the attention of the Court to the dictum of the Hon'ble Supreme Court in the case of Union of India -vs- Asian Food Industries reported in (2006) 13 SCC 542 at para- 26 holding that a citizen o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lic notice No.P.S.15/2016 dated 15.12.2016 where the name of the petitioner -Thunga Trading Company is found at Serial No.51 and in pursuance of the Public Notice No.PS -3/2017 dated 27th April, 2017 and the Minutes of draw of lots held on 27.4.2017 for drawing priority list of applicants, who had applied for registration of sales contract for import of poppy seeds from Turkey, the priority list was prepared mentioning the 'priority number' and 'serial number of slip picked' (name of the importer allotted under draw of lots) in the tabular columns and the petitioner's name was found at No.292. Therefore he would contend that the competent country has fixed final Country Cap of 18,558 metric tones for import of white poppy seeds from Turkey. As per Clause 3(iv) of the Public Notice, dated 5.12.2016 (Annexure-AE), all the applicants are allowed to register sale contracts for the quantity applied for or 90 metric tones, whichever is less. Hence going by the country cap fixed and quota fixed for each applicant, only first 206 applicants in the priority list dated 27.4.2017 will be entitled for registration of the import contracts out of 471 applicants. 43. The learned Senior Counsel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot contain imposing of quantitative restrictions. The amendment of policy condition no.3 as per Notification dated 29.7.2016 is contrary to the provisions of Section 9A of the Foreign Trade Act. He would further contend that drawing of lots not contained either in the National Policy or under the provisions of the Foreign Trade Act. The restriction imposed in Annexure-A and guidelines of drawing of lots is in utter violation of Article 19(1)(g) of the Constitution of India. He would further contend that Article 19(6) of the Constitution of India prescribes that nothing in subclause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law. 45. In support of his contentions with regard to statutory interpretation, learned senior counsel invited the attention of the Court to the dictum of the Hon'ble Suprem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ics Commissioner shall satisfy that the country from which the poppy seeds are proposed to be imported legally cultivates opium poppy and can produce the quantity of seeds which are sought to be imported. He would further contend that the import of said product is an essential, condition to be fulfilled that it has to be legitimately cultivated and compulsorily registered country cap and the country cap will be determined every year. 50. The learned Additional Solicitor General sought attention to the definition of 'poppy straw' under the provisions of Section 2(18) as well as of the ND & PS Act and contended that the reference to the provisions of Section 18-A of the Foreign Trade Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. With regard to Annexure-A produced in W.P.No.58197/2016, he submitted that the said W.P.No.22067/2013 is a public interest litigation filed before the Allahabad High Court and an interim order was granted on 29.12.2013. The Allahabad High Court at para-21 while referring to Manual and paragraph-17 of the National Policy has held that undoubtedly neither the Manual nor the National Policy....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o the notification dated 29.7.2016 wherein the petitioner has taken a specific contention that the concerned Ministry has not approved or not signed the proceedings of the original record. Therefore, he sought to produce the original records showing that the concerned Ministry has approved the note at page 584 in the original records. 52. The learned Additional Solicitor General of India contended that in view of the provisions of Section 3(2) of the Foreign Trade Act, the Central Government is the authority to prohibit, restrict or otherwise regulate, the impugned Order passed by the Central Government in exercise of powers under the said Section. He also relied upon the definition of 'restrict' as mentioned in the Black Dictionary which means 'to a limited extent'. He further contended that under the provisions of Section 9A of the Foreign Trade Act, if the Central Government, after conducting such enquiry as it deems fit, is satisfied that any goods are imported into India in such increased quantities and under such conditions as to cause or threaten to cause serious injury to domestic industry, it may, by notification in the Official Gazette, impose such quantitative restric....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mitted that Section 9A of the Act came to be introduced by the Central Government with effect from 27.8.2010 and earlier there was a General Agreement on Tariffs and Trade (GATT) - an international treaty signed in the year 1947 which initially had 23 countries including India as its signatory. It was also agreed upon to promote international trade by reducing and eliminating trade barriers and free trade between developed and developing countries. He further contended that in the year 1992, the GATT was replaced by the World Trade Organization by which time the participating Countries had increased from 22 to 123. Under the GATT, Article IX and XVIII provides for General Elimination of Quantitative Restrictions and Governmental Assistance to Economic Development. Somewhere in the year 1993, India placed quantitative restrictions on import of certain agricultural and industrial products to which the United States of America took exception and in the year 1997 a dispute (Consultation) was raised in the WTO against India complaining about the Quantitative Restrictions so imposed, but India justified the action that the balance of payment obligation demanded such qualitative restricti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be made as per the allocation process in para III (i) to (iv) below. In that case, surrendered quantity shall be allocated in the manner described in para IV (ii). III. Allocation of Provisional Country Cap: (i)Narcotic Commissioner shall apportion the provisional cap between the applicant in the following manner: (a) Applicants shall be allowed to register sales contracts for the quantity applied for, or ninety(90) MT, whichever is less. (b) However, if the quantity available for allocation to the applicants is insufficient to allocate to all the applicants in the manner provided in III(i)(a) above, selection of applicants shall be done through 'draw of lots'. A 'priority list' shall be made which shall be in accordance with the 'draw of lots'. (iv) Quantity available for allocation to applicants shall be allocated in the manner provided in III(i) above as per the priority list prepared through 'draw of lots' till the available quantity is exhausted. (v) Those applicants who do not receive any allocation due to the provisional country cap getting exhausted shall be put on 'waitlist' for consideration after final country cap is determined. IV. Allocation after....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eds which are sought to be imported. 58. The Addl. Solicitor General of India further contended that the Central Government is the authority to fix the quantity of metric tons, exercising powers under Section 3(2) of the Foreign Trade Act. In support of his contention, he relied upon the dictum of the Hon'ble Supreme Court in the case of M/s Andhra Industrial Works vs. Chief Controller of Imports and others reported in (1974)2 SCC 348, with regard to restrictions made under Article 19(1)(g) and paragraph 11, to the effect that, the Policy Statement is the sheet-anchor of the petitioners' claim. Such a Policy Statement, as distinguished from an Import or Export Control Order issued under Section 3 of the said Act, is not a statutory document. No person can merely on the basis of such a Statement claim a right to the grant of an import licence, enforceable at law. Moreover, such a Policy can be changed, rescinded or altered by mere administrative orders on executive instructions issued at any time. The Hon'ble Supreme Court further held that, be that as it may, on the basis of an Import Trade Policy an applicant has no absolute right, much less a fundamental right, to the grant of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....circumstances and in the interest of large traders, business people and in the interest of large participants has fixed the maximum quantity permitted to be imported at 90 metric tons. Such a policy of the Central Government should not be interfered by this Court and therefore, sought for dismissal of the writ petitions. 61. Sri Sanjay Nair, learned Central Government Advocate, filed Memo dated 13.12.2017 along with certified copy of the original file paper in relation to the notification dated 29.07.2016 with respect to the modification of the import policy for import of poppy seeds which has been signed by the Minister for Commerce and Industry on 29.07.2016. The same is placed on record. 62. Learned Addl. Solicitor General of India also filed written submission, reiterating the arguments advanced by him. The same is placed on record. 63. Sri Arun Sri Kumar, learned counsel appearing for respondent No.5 in W.P.No.65486- 65487/2016, while supporting the arguments advanced by the learned Addl. Solicitor General, would contend that the notification dated 29.07.2016 issued by the Central Government in exercise of powers under Section 3(2) of the Foreign Trade Act. He would f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and spurs economic growth. The imports and exports (Control) Act, 1947 was made in different circumstances. Although it has been amended from time to time, the Act does not provide an adequate legal frame work for the development and promotion of India's foreign trade. Besides, in July, 1991 and August, 1991, major changes in trade policy were by the Government of India. The goals of the new trade policy are to increase productivity and competitiveness and to achieve a strong export performance. The Exports and Imports is a vital part of trade policy. The basic law governing foreign trade must serve as an instrument to create an environment that will provide a strong impetus to exports, facilitate imports and render export activity more profitable. It has, therefore, been considered necessary to enact a new law repealing the existing law. The Act intends to achieve these objectives. 67. The Foreign Trade Act (22 of 1992) came into force with effect from 7.8.1992. An Act to provide for the development and regulation of foreign trade by facilitating imports into, and augmenting exports from, India and for matters connected therewith or incidental thereto. Chapter-II of the Foreign....
X X X X Extracts X X X X
X X X X Extracts X X X X
....will be accepted by the office and whereby categorization of imports was made into category 'A' and 'B'. That was the subject matter of writ petition before this Court in W.P.No. 42816/2015. This Court after hearing both the parties, by an order dated 05.01.2016 dismissed the writ petition holding that "this would only require the limited questions of whether the policy now sought to be adopted by the respondents of categorization of importers lacks a rational basis. As has been demonstrated by the respondents in relation to the actual figures as to the number of applicants and the quantity available for allocation, it cannot be said that it leads to any imbalance or is arbitrary. It may not be best policy that could have been adopted by the respondents, but it cannot be characterized as illegal or arbitrary. The explanation offered by the respondents as to the reason and rationale in adopting a prescription of a provisional cap and a country cap, insofar as imports from Turkey is concerned is also acceptable. Hence the petition lacks merit and is hereby dismissed. However, the options suggested by the petitioner do not appear to be implausible of adoption, which the respondents sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owing stipulations for import of poppy seeds. "2. (3)Import of Poppy Seeds (HS Code: 120791 00) shall be allowed subject to the following conditions: (a) Import permitted only 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; (b) The importer shall produce an appropriate certificate from the competent authority of the exporting country that Opium Poppy have been grown licitly/ legally in that country; and (c) All import contracts for this item shall compulsorily be registered with the Narcotics Commissioner, Gwalior prior to import." 73. The amendment to the aforesaid condition was brought into force, by notification dated 26.07.2016. As originally framed 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has been cast upon CBN of registering contracts is with a stated public purpose of protecting the due implementation of the policy of the Government of India in permitting import of poppy seeds from nondesignated countries. It is in pursuance of that policy that the conditions of the notification require a certificate that the poppy seeds originate in a country where opium poppy is grown licitly or legally. The import policy is a statutory document enacted in pursuance of the Import and Export Control Act, 1947. The policy entrusts the duty of registering contracts upon a specialized regulatory body viz., CBN. 77. Clause 17 of The National Policy on Narcotic Drugs and Psychotropic Substances, specifically adverts the role of Narcotic Commissioner before registering the contracts, as under: "17. Import of poppy seeds will continue till self-sufficiency is achieved. The policy is to allow import of poppy seeds from any country provided it has originated in any of the countries authorized internationally to grow opium poppy for export and that it has been legitimately cultivated. No import will be allowed from countries where opium poppy is not legitimately cultivated. All cont....
X X X X Extracts X X X X
X X X X Extracts X X X X
....otification issued by the Central Government under Section 5 of the Act. It was further contended that it is not the case of the Central Government that in order to protect the interest of domestic nature, restriction is made. If the Central Government wants to protect domestic industry, then the Central Government can issue notification under Section 9A of the Foreign Trade Act, which prescribes quantitative restrictions. It refers to importer of goods and not any individual and the impugned notification issued on 29.07.2016 delegating the power to revenue department under Section 3 of the Foreign Trade Act fixing the country cap imposing quantitative restrictions, if any, per importer or any other relevant provisions as deemed necessary for implementation of the policy of Narcotic Drugs and Psychotropic Substances is contrary to the provisions of Sections 2, 3, 4, 6(3), 11 and 11(3) of Foreign Trade Act. As per condition 4 of the notification, the revenue department has been delegated with the power to frame detailed guidelines with regard to registration of contracts with Narcotics Commissioner, Gwalior, for importing poppy seeds which is impermissible in view of the provisions ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... import of poppy seeds from any country provided it has originated in any of the countries authorized internationally to grow opium poppy for export and that it has been legitimately cultivated. No import will be allowed from countries where opium poppy is not legitimately cultivated. All contracts for import of poppy seeds will be compulsorily registered with the Narcotics Commissioner and before registering such contracts, the Narcotics Commissioner shall satisfy that the country from which poppy seeds are proposed to be imported legally cultivates opium poppy and can produce the quantity of seeds which are sought to be imported. Therefore, it was contended that the prayer made in the writ petition has to be dismissed. VII. RELEVANT PROVISIONS OF THE FOREIGN TRADE (DEVELOPMENT AND REGULATION) ACT, 1992. 82. In view of the aforesaid contentions and the arguments advanced, it is worthwhile to consider the provisions of Sections 3, 5 and 9A of the Act, which reads as under: 3. Powers to make provisions relating to imports and exports.-(1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at country does not exceed three per cent. or where such goods originate from more than one developing country, then, so long as the aggregate of the imports from all such countries taken together does not exceed nine per cent. of the total imports of such goods into India. (2) The quantitative restrictions imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of four years from the date of such imposition: Provided that if the Central Government is of the opinion that the domestic industry has taken measures to adjust to such injury or threat thereof and it is necessary that the quantitative restrictions should continue to be imposed to prevent such injury or threat and to facilitate the adjustments, it may extend the said period beyond four years: Provided further that in no case the quantitative restrictions shall continue to be imposed beyond a period of ten years from the date on which such restrictions were first imposed. (3) The Central Government may, by rules provide for the manner in which goods, the import of which shall be subject to quantitative restrictions under this section, may be identified and the manner in which the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... control their utilisation for that purpose, the imported goods, after import, can be diverted to different uses, defeating thereby the very purpose for which the import was allowed and power had been conferred on the Central Government to control imports. It is therefore not possible to restrict the scope of the provision about the control of import to the stage of importing of the goods at the frontiers of the country. Their content is much wider and extends to every stage at which the Government feels it necessary to see that the imported goods are properly utilised for the purpose for which their import was considered necessary in the interests of the country. 85. The proviso to sub-section (2) as well as subsection (4) were inserted by Act 25/2010 w.e.f. 27.08.2010. This Court is primarily concerned with the interpretation of sub-sections (1) and (2) of Section 3 as far as present case is concerned. Sub-section (1) empowers the Central Government to make provision for the development as well as regulation of foreign trade by facilitating imports and increasing exports. Thus, the Government is empowered to make provision insofar as they relate to the development of foreign t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and under such conditions as to cause or threaten to cause serious injury to domestic industry, the Central Government may impose such quantitative restrictions on the import of such goods as it deems fit by notification in the Official Gazette. In the present case, the Central Government has not issued the impugned amended notification under Section 9A, but issued under Section 3 of the Foreign Trade Act. As already stated supra, in view of earlier history in respect of issue of notification pertaining to import of poppy seeds, the Central Government thought it fit to amend condition No.3(c) of the policy by imposing quantitative restriction of 90 metric tons per importer, since the competent authority has fixed country cap to import poppy seeds to India from Turkey at 18,558 metric tons and also fixed country cap at 3094 metric tons for import of white poppy seeds and 391 metric tons for import of yellow poppy seeds from China. Therefore it is not a free trade. The restriction is made by the Central Government fixing 90 metric tons per importer on the basis of the country cap, in order to facilitate all the traders in the field of poppy seeds business and to control the monopoly....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... paper in relation to the notification dated 29.7.2016 and which has been signed by the Hon'ble Minister for Commerce and Industry on 29.7.2016 approving the said notification (original file note at page 584). 93. Government of India, Ministry of Finance, Department of Revenue has framed guidelines in F.No. N.99014/31/2012-NC-I dated 28th November 2016 and same was communicated by the Under Secretary to the Government of India to the Narcotics Commissioner, Central Bureau of Narcotics. Clause-I of the Guidelines deals with determination of Country Cap; Clause-III deals with allocation of provisional Country Cap and Clause-IV deals with allocation after final Country Cap. Clauses I, III and IV of the Guidelines read as under: I. Determination of Country Cap: i) As per the competent authority of Turkey, poppy seeds produced in a particular crop season are available for export starting from 1st July. For example, poppy seeds produced from the crop season 2015-16 are available for export from 1st July, 2016. ii) Narcotics Commissioner shall determine a provisional country cap based on the following information received from the competent Turkish authority: a) carried ove....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rential quantity between the quantity registered after allocation of the provisional country cap less the quantity surrendered by the applicants, if any, and final country cap shall be allocated in the following manner. a) Applicants who were put on 'waitlist' due to provisional country cap getting exhausted shall be allowed, in the order of the priority list drawn at the time of the allocation of provisional country cap, to register sales contracts for the quantity applied for, or ninety (90) MT, whichever is less. b) Quantity still available for allocation, after allocation to the applicants in waitlist as specified at IV (ii) (a) above, shall be allocated to those applicants who had applied for registration of more quantity but were allowed registration for less quantity. Such applicants shall be allowed, in the order of the priority list drawn at the time of the allocation of provisional country cap, to register sales contracts for the quantity applied for (after deducting the quantity allocated for registration earlier), or ninety (90) MT, whichever is less. The process shall be repeated in the same manner till the quantity available for allocation is exhausted. 94. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in case of proprietorship/partnership. In case of company, the application should be signed by any of the Executive Director or authorized person duly empowered by Board of Directors. (In such a case, Board Resolution in original/certified copy is to be submitted). ii) Sales contract in original duly signed by the importer as well by the exporter. iii) Attested copy of PAN card. iv) Attested copy of import Export Code (IEC) issued by DGFT. v) Demand Draft worth Rs. 1,000/- in favor of Drawing and Disbursing Officer, Central Bureau of Narcotics, Gwalior. vi) Address of Jurisdictional Commissionerate of Central Excise under which firm is situated. In case applicant is registered with Central Excise, the copy of Central Excise Registration Certificate be also submitted. vii) Copy of import related documents viz., invoice, certificate of origin, bill of entry, bill of lading etc., for import of white poppy seeds from Turkey imported against the contract registered in the month of March/April 2016, if not submitted. 96. It is also not in dispute that in pursuance of the minutes of draw of lots conducted on 27th April 2017 for drawing the priority list of applicants....
X X X X Extracts X X X X
X X X X Extracts X X X X
....p; 30 218 14 319 31 252 15 147 32 61 16 199 33 243 17 255 34 43 Priority number Serial number of slip picked Priority number Serial number of slip picked 35 262 57 240 36 464 58 436 37 181 59 446 38 214 60 482 39 356 61 360 40 241 62 347 41 229 63 479 42 48 64 225 43 142 65 186 44 41 66 320 45 400 67 124 46 399 68 271 47 14 69 288 48 141 70 381 49 372 71 208 50 52 72 370 51 122 73 242 52 278 74 220 53 20 75 448 54 248 76 131 55 298 77 146 56 325 78 414 Priority number Serial number of slip picked Priority number Serial number of sli....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 202 368 181 145 203 126 182 108 204 233 183 121 205 143 184 468 206 117 185 341 207 72 186 100 208 282 187 270 209 56 188 203 210 352 Priority number Serial number of slip picked Priority number Serial number of slip picked 211 467 233 247 212 384 234 336 213 125 235 102 214 171 236 283 215 405 237 68 216 173 238 338 217 273 239 113 218 134 240 474 219 481 241 57 220 235 242 216 221 454 243 328 222 198 244 201 223 290 245 257 224 85 246 169 225 35 247 148 226 21 248 317 227 421 249 269 228 82 250 275 229 369 251 8 230 36 252 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0 372 86 351 363 373 176 352 462 374 461 353 350 375 153 354 385 376 411 355 139 377 80 356 94 378 10 357 45 379 183 358 349 380 159 359 345 381 99 360 451 382 53 361 364 383 263 362 193 384 321 363 152 385 222 364 458 386 189 Priority number Serial number of slip picked Priority number Serial number of slip picked 387 156 411 459 388 114 412 136 389 236 413 81 390 452 414 163 391 366 415 180 392 450 416 433 393 476 417 377 394 401 418 313 395 445 419 292 396 357 420 354 397 359 421 342 398 230 422 32 399 434 423 259 400 285 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s per priority list through 'draw of lots' till the available quantity is exhausted. The notice also depicts that applicants who were put on 'wait list' due to exhaust of the country cap shall be allowed, in the order of the priority list drawn at the time of the allocation of country cap, to register sales contract for the quantity applied, or ninety (90 MT), whichever is less, subject to the quantity available by way of surrender. If an importer fails to import a minimum of 50% of the quantity registered for import, less the quantity surrendered, he shall be debarred from registration of sales contract for a period of two years. 99. The notice also depicts that the quantity still available for allocation, after allocation to the applicants in wait list, shall be allocated to those applicants who had applied for registration of more quantity, but were allowed registration for less quantity. Such applicants shall be allowed, in the order of the priority list drawn at the time of allocation of country cap to register sales contract for the quantity applied for (after deducting the quantity allocated for registration earlier) or ninety (90 MT) whichever is less. The process shall ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. X. THE JUDGMENTS OF THE HON'BLE SUPREME COURT RELIED UPON FOR DETERMINATION 101. The Hon'ble Supreme Court while considering the selection process/procedure in the case of ASHOK KUMAR v. STATE OF BIHAR reported in (2017)4 SCC 357 held that person who consciously takes part in selection process cannot thereafter turn around and challenge method of selection and its outcome. The Hon'ble Supreme Court at paragraphs 11 to 18 held as under: 11. The basic issue that was addressed by the Division Bench was that the appellants having participated in the fresh round of selection could not be permitted to assail the process once they were declared unsuccessful. On this aspect, a brief recapitulation of the facts would be in order. In the original process of selection, following the issuance of General order No. 204 of 2003 by the District and Sessions Judge, Muzaffarpur on 2 December 2003, a written examination was held on 20 April 2004 consisting of eighty five marks followed by an interview on 7 July 2004 consisting of fifteen marks. The High Court declined to approve of the selection list and issued through its Registrar (Administration), a communication dated 19 August 2004 r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l. 15. In Manish Kumar Shah v. State of Bihar {(2010)12 SCC 576},, the same principle was reiterated in the following observations : "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in MadanLal v. State of J & K. {(1995) 3 SCC 486}, Marripati Nagaraja v. STATE OF A.P. {(2007) 11 SCC 522}, Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. {(2008) 4 SCC 171}, Amlan Jyot iBorooah v. State of Assam {(2009) 3 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ould have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam {(2016)1 SCC 454}. 102. In view of the conduct of the petitioners stated supra and the dictum of the Hon'ble Supreme Court, the petitioners who consciously took part in the process of draw of lots knowing full well the amended policy, guidelines, public notices issued and the procedure laid down, are not entitled to question it upon being unsuccessful to get the allotment and on that ground alone the writ petitions are liable to be dismissed. In view of the above, point No.2 raised in the present writ petitions has to be answered in the negative holding that the guidelines for registration of sale contracts for import of poppy seeds from Turkey and China Governments restricting the applicants to register sale contracts for the quantity applied for, or ninety metric tons, whichever is less, and selection of applicants through 'draw of lots', are in accordance with law and also in accordance with the provisions of Article 19(6) of the Constitution of India and not violative of fundamental rig....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the Government of India, Ministry of Finance, fixing the final country cap for import of poppy seeds from Turkey and China. 104. Sri D.L.N. Rao, learned Senior Counsel appearing for the petitioners draw attention of the Court to para-13 of the judgment in the case of MRF Limited - vs- Inspector Kerala Government reported in 1998(8) SCC 227 though relied upon by the respondents and contended that the restrictions must not be arbitrary or of excessive nature so as to go beyond the requirement of the interest of the general public and there must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will arise. If two principles laid down are not existing, then Article 19(1)(g) of the Constitution of India attracts. But in the present case, in view of the past history/experience meted out by the Central Government on failure of two earlier policies, the Government thought it fit to amend policy-condition No.3(c) imposing quantitative restrictions if any p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Parisons Agrotech Private Limited case was made prior to amendment of the policy and hence is not applicable, cannot be accepted since policy condition No.3(c) or impugned notification was amended exercising the powers under Section 3(2) of the Amended Act. Therefore, the judgment in the case of Parisons Agrotech Pvt. Ltd., is applicable to the facts of the present writ petitions in all force. 107. In so far as the judgment relied upon by the learned Senior Counsel for respondent No.5 in support of his contentions in the case of Union of India -vs- Shiv Dayal Soin & Sons (P) Ltd., reported in (2003)4 SCC 695 to the effect that what is expressly mentioned in one place but not in another must be taken to have been deliberately omitted, cannot be accepted since the said judgment was laid down considering the provisions of Section 40 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 for grant of lease of land to predecessor-in-interest of respondent - State Government. The facts of the said case are entirely different from the facts of the present writ petitions and hence, the said judgment has no application to the instant writ petitions. 108. The history....
X X X X Extracts X X X X
X X X X Extracts X X X X
....RKS .vs. CHIEF CONTROLLER OF IMPORTS AND OTHERS reported in (1974)2 SCC 348 held at paragraphs 14 and 15 as under: 14. Be that as it may, on the basis of an Import Trade Policy an applicant has no absolute right, much less a fundamental right, to the grant of an import licence. The nature of such a claim came up for consideration before this Court in Deputy Assistant Iron and Steel Controller and anr. v. L. Maneckchand, Proprietor, Katrella Metal Corpn., Madras {(1972)3 SCC 324} 15. That was an appeal by special leave against the judgment of the High Court rendered in exercise of writ jurisdiction under Art. 226.The writ-petitioner asked for the issue of a Mandamus requiring the authorities to consider his application for licence to import stainless steel in terms of 1968-69 Policy and not in accordance with 1970-71 Policy when the application was made. This Court held that in view of section 3(1)(a) of the Imports and Exports Control Act, 1947 and clause 6 (1) (a) of the Imports (Control) Order, 1955, an applicant has no vested right to an import licence in terms of the policy in force at the time of the application. No case for the Mandamus prayed had been made out, particu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... nature and the design of the statute, and the consequences which would follow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered." 26. In State v. Karna (1973 Crl.LJ 1871) where the very question with which we are concerned in the present case cropped up in connection with the Rajasthan Foodgrains (Restrictions on Border Movement) Order, 1959, a bench of Rajasthan High Court said as follows at page 1872:- "It is important to note that laying the Order before both the Houses of Parliament is not a condition precedent for bringing into force the Order. All that sub-section (6) provides is that every Order made under sec. 3 of the Essential Commodities Act by the Central Government or by any officer or authority of the Central Governm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplication and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances. (4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Clause (6) of Article 19. (5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind. (See: State of U.P. vs. Kaushailiya, (1964) 4 SCR 1002 = AIR 1964 SC 416) (6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (See: Kavalappara Kottarathil Kochuni @ Moopli Nayar vs States of Madras and Kerala. (1960) 3 SCR 887 = AIR 1960 SC 1080: O.K. Ghosh vs. E.X. Joseph. (1963) Supp. (1) SCR 789 = AIR 1963 SC 812) 112. The Hon'ble Supreme Court while considering the provisions of Sections 5 & 3(2) of the Foreign Trade Act w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the following manner: "12. there is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to the policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. Any decision be it a simple administrative decision or policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution." 16. The power of the Court under writ jurisdiction has been discussed in Asif Hameed and Others. v. State of Jammu and Kashmir and Others {1989 suppl. (2) SCC 364} in paras 17 and 19, which read as under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tional limits or statutory powers." 17. The aforesaid doctrine of separation of power and limited scope of judicial review in policy matters is reiterated in State of Orissa and Others v. Gopinath Dash and Others {(2005)13 SCC 495} : "5. While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed v. State of J&K; 1989 Supp (2) SCC 364 and Shri Sitaram Sugar Co. Ltd. v. Union of India; (1990) 3 SCC 223). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... judgment of this Court in the case of Premier Tyres Limited v. Kerala State Road Transport Corporation {1993 Suppl. (2) SCC 146} wherein this Court held that when a policy decision is taken in the public interest, Courts need not tinker with the same. 20. The locus classicus allowing freedom to the Executive to take economic decisions is remarkably dealt with by this Court in R.K. Garg v. Union of India {(1981)4 SCC 675}] and the following discussion from the said judgment is again worth quoting: "8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The court should feel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. 19. It is true that certain immunities and exemptions are granted to persons investing their unaccounted money in purchase of Special Bearer Bonds but that is an inducement which has to be offered for unearthing black money. Those who have successfully evaded taxation and concealed their income or wealth despite the stringent tax laws and the efforts of the tax department are not likely to disclose their unaccounted money without some inducement by way of immunities and exemptions and it must necessarily be left to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e human ingenuity is so great when it comes to tax avoidance that it would be almost impossible to frame tax legislation which cannot be abused. Moreover, as already pointed out above, the trial and error method is inherent in every legislative effort to deal with an obstinate social or economic issue and if it is found that any immunity or exemption granted under the Act is being utilised for tax evasion or avoidance not intended by the legislature, the Act can always be amended and the abuse terminated. We are accordingly of the view that none of the provisions of the Act is violative of Article 14 and its constitutional validity must be upheld." 21. The aforesaid principle is echoed with equal emphasis in Balco Employees' Union (Regd.) v. Union of India and Others {(2002) 2 SCC 333} in the following manner: "46. It is evident from the above that it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned, we have our reservations on the correctness thereof wherein the High Court found that Notification dated 28.04.1989 allowing imports of Woolen rags, Synthetic rags, Shoddy wool through two ports only, namely, Bombay and Delhi ICD. In any case, insofar as argument based on Article 14 is concerned, the said judgment is distinguishable as in that case the Court did not find any intelligible basis which was disclosed before the Court either in the affidavits filed by the Customs Authorities or in the Import Licensing Control Authorities of the Government of India. Likewise, no rational nexus for imposing the restrictions on importation of the subject goods only through Delhi ICD and Bombay ports is disclosed. In the absence of such a justification, on the facts of that case, the Court found the Notification to be violative of Article 14 of the Constitution. 23. In contrast, in the present case, as already pointed out above, the respondents have been able to demonstrate intelligible basis for issuing the impugned Notifications having rational nexus with the objectives sought to be achieved. We, thus, reject the arguments based on Article 14 of the Constitution. 26. Scope and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 25/2010 w.e.f. 27.08.2010. In any case, we are primarily concerned with the interpretation of subsections (1) and (2) of Section 3 as far as present case is concerned. Sub-section (1) empowers the Central Government to make provision for the development as well as regulation of foreign trade by facilitating imports and increasing exports. Thus, the Government is empowered to make provision insofar as they relate to the development of foreign trade and it has also empowered to regulate the foreign trade. The two key words here are 'development' and 'regulation'. It is also important to note that such development and regulation is aimed at facilitating imports as well as increasing exports. First argument of Mr. Naphade was that regulatory provision has to be for facilitating imports whereas in the present case, it was to curb the imports insofar as ports in Kerala are concerned. Sub-section (2) of Section 3 further empowers the Central Government to make provision for: (i) prohibiting; (ii) restricting; or (iii) otherwise regulating 'the import or export of goods or services or technology'. It can be done in all cases or in specified classes of cases. The su....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... would be in consonance with the ratio of the judgment of this Court in Union of India v. Asian Food Industries {(2006)13 SCC 542}: "25. Would the terms 'restriction' and 'regulation' used in Clause 1.5 of the Foreign Trade Policy include prohibition also, is one of the principal questions involved herein. 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. 27. The purport and object for which the 1992 Act was enacted was to make provision for the development and regulation of foreign trade inter alia by augmenting exports from India. While laying down a policy therefor, the Central Government, however, had been empowered to make provision for prohibiting, restricting or otherwise regulating export of goods. 28. Section 11 of the 1962 Act also provides for prohibition. When an order is issued under sub-section (3) of Section 3 of the 1992 Act, the export of goods would be deemed to be prohibited also under Section 11 of the 1962 Act and in relation thereto the provisions thereof....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-section (2) of Section 3 of the Act gives ample power to the Government to issue such Notifications in exceptional cases and present case falls within those parameters. No other argument was addressed. We, therefore, do not find fault with the view taken by the High Court upholding the Notifications in question. These appeals are accordingly dismissed. 114. The Hon'ble Supreme Court while considering the aspects of 'policy decision' and 'judicial review' in the case of SHER SINGH AND OTHERS .vs. UNION OF INDIA AND OTHERS reported in (1995)6 SCC 515 held at paragraph-7 as under: 7. xxx xxx Later, if the Government had taken a policy decision to grant parity again with effect from 1.4.1980 and not with retrospective effect from 1.7.1973 when it was disturbed there could be no legitimate grievance for the same because the Government has the right to change its policy from time to time, according to the administrative exigencies and demands of the relevant time. As a matter of fact the Courts would be slow in interfering with matters of Government Policy except where it is shown that the decision is unfair malafide or contrary to any statutory directions. There will be no justif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalization of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority, SC/0248/1960, Shree Meenakshi Mills Ltd. v. Union of India SC/0064/1973, Hari Chand Sarda v. Mizo District Council SC/0058/1966 and Krishnan Kakkanth v. Government of Kerala (AIR 1997 SC 129). 116. The Hon'ble Supreme Court while considering the aspects of 'judicial review' and 'policy decision of the Government' in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt in the said decision held at paragraphs 21, 40, 41, 42 to 47 as under: 21. It is settled law that in the areas of economics and commerce, there is far greater latitude available to the executive than in other matters. The Court cannot sit in judgment over the wisdom of the policy of the legislature or the executive. Thus in Balco Employees' Union (Regd.) vs. Union of India and Ors. 2002(2) SCC 333 it was observed (vide paragraph 92 and 93): "92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court. 93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....easure of price fixation must necessarily, be, are matters of prediction of ultimate results on which even experts can seriously err and doubtlessly differ. Courts can certainly not be expected to decide them without even the aid of experts." 43. In Shri Sitaram Sugar Co. Ltd. vs. Union of India (1990) 3 SCC 223 the Supreme Court observed : "57.Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the 'feel of the expert' by its own views." It must be remembered that certain matters are by their nature such as best be left to experts in the field. This Court does not have the technical and administrative expertise in this respect. 44. In the words of Chief Justice Neely : "I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financer, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review 5000 page record addressing the intricacies of a public utility oper....