Page 196 - ELT_15th July 2020_Vol 373_Part 2

178 EXCISE LAW TIMES [ Vol. 373

Narcotics Commissioner, a representative of the Directorate General of For-
eign Trade, and a representative of the Department of Revenue. The clause
clearly says that 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. Clearly, therefore, this cap is not ad hoc or with-
out basis. Then Clause II says the Turkish exporter is to be registered with
the TMO. Once that is done, an Indian importer may approach the Narcot-
ics Commissioner for registration of the sales contract. Certain conditions
are prescribed for such registration. One of these is that each importer can
register the quantity applied for or 25 containers (450 MT), whichever is
less, during a particular crop year, which runs from 1st July to 30th June. A
maximum of six applications are allowed from July to March of the next
year. For 2018-2019, no registration application will be entertained after
15th July, 2019 and any such contract is valid for shipment from Turkey on-
ly until 31st July, 2019. Then there are detailed provisions for procedure, va-
lidity, surrender and penalty.
7. What the Petitioners say is that this process of registration will create a
monopoly in the hands of big players, and that the old system of drawing
of lots is preferable. Then it is argued that once a Turkish exporter is regis-
tered with the Turkish Board, or TMO, then requirement of the Indian im-
porter having to register is arbitrary and unreasonable. It is a duplication of
work. It introduces unnecessary red tape. Earlier, the restriction was a max-
imum of five containers. By raising this to 25, the ‘rich and powerful im-
porters take all the cake’, is the allegation. Finally, it is argued that the time
frames are unrealistic and are a form of invidious discrimination. These are
the principal submissions and grounds to assail the notification.
8. In our view, they are without merit. 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. In mounting such a challenge, the
burden on the Petitioner is to show that the notification is manifestly arbi-
trary, i.e. that a patent arbitrariness exists on the face of it, without requir-
ing any convoluted argumentation. It must, alternatively, be shown to be ex
facie discriminatory, and not just discriminatory, but invidiously so. If a
classification is challenged, it must be shown that it bears no nexus to the
object of the impugned law. The petitioners are able to do none of this.
9. What is, however, clear is that this notification has been framed pursu-
ant to a Memorandum of Understanding dated 23rd May, 2018 between
India and Turkey. By a Notification dated 29th July, 2016, the Government
of India conferred powers on the Department of Revenue to frame guide-
lines (fixing country caps, imposing limits on import quantities per import-
er or in the aggregate and so on). These were intended to give effect to the
National Policy on Narcotic Drugs and Psychotropic Substances, controlled
by the Narcotic Drugs & Psychotropic Substances Act, 1985 (“NDPS Act”).
Obviously, this MOU, a sovereign act, is not open to challenge. What the
impugned Notification does is to provide guidelines and to restrain exer-
cise 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. Notably, no
other importer has complained. On the contrary, one importer, represented
by Mr. Setalvad, has sought to intervene to contest the petition.

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