Page 197 - ELT_15th July 2020_Vol 373_Part 2

2020 ] A.D. ENTERPRISE v. UNION OF INDIA 179

That application says that around 18000 MT of poppy seed imports are al-
ready under contract with various other importers, who have duly sought
registration and complied with the guidelines’ requirements.
10. We may only note that this Petition does not question the power to
frame such guidelines. In the NDPS Act, we find specific powers conferred
under Chapter III. Section 9 gives the Central Government power to permit,
control and regulate cultivation, manufacture, trade, possession, transport,
export, import (both inter-State and into India) of various types of sub-
stances. Opium and opium derivatives are specifically mentioned. Section
11 confers a broadly similar power on the State Government. The NDPS
Rules, 1985 contain more specific provisions. Chapter III deals with opium
poppy cultivation and production, all of which is regulated. Similarly,
Chapter IV of the Rules deals with manufacture, sale and export of opium.
Chapter VI addresses import, export and transhipment of narcotic drugs
and psychotropic substances. Now narcotic drug is defined in Section 2(xiv)
to mean coca leaf, cannabis (hemp), opium poppy straw and includes all
manufactured drugs. Opium poppy, under Section 2(xvii) means the plant
of the species Papaver Somniferum L and the plant of any other species of
Papaver from which opium or any phenanthrene alkaloid can be extracted
or which the Central Government declares by notification to be an opium
poppy. Opium straw is defined in Section 2(xviii) to mean all parts except
the seeds of the opium poppy after harvesting, whether in their original
form or cut, crushed or powered and whether or not any juices has been ex-
tracted therefrom. These definitions are immediately relevant to Rules 53 to
56 under Chapter VI of the NDPS Rules. These tell us that while the import
of opium and concentrate of poppy straw is forbidden save by the Gov-
ernment Opium Factory (along with morphine, codeine, thebaine and their
salts), every import of a narcotic drug or a psychotropic substance requires
an import certificate. Thus, the poppy seed is not itself a narcotic; but they
come from the poppy plant, which has narcotic properties and from which
other derivatives (poppy straw in particular) are produced.
11. The power to impose quantitative restrictions can be traced to Chapter
III-A of the Foreign Trade (Development & Regulation) Act, 1992. This was
inserted by a 2010 amendment, and confers power on the Central Govern-
ment to impose quantitative restrictions on imports. Section 9-A says that
the Central Government may, after conducting a suitable enquiry, if satis-
fied that any goods are imported into India in large quantities and under
such conditions as injure or threaten to injure domestic industry, it may
impose quantitative restriction. These restrictions can continue for a maxi-
mum of four years, extendable by a like period.
12. We have noted this precisely because the source of power under both
Act is not questioned by the Petitioners before us at all. Once, therefore, we
find that there is a power to regulate and a power to impose quantitative
restrictions, and there is no challenge to the exercise of that power, it is dif-
ficult to see what remains in the Petition. Merely saying that a certain clause
is, in the Petitioner’s view, sub-optimal, or leaves something to be desired,
is not enough to warrant a striking down of the notification. We cannot,
equally, substitute our view for government policy framed in legitimate ex-
ercise of statutory power. Yet that is precisely what the Petitioners would
have us do. Worse yet, there is no data at all in the petition to support what
EXCISE LAW TIMES  15th July 2020  197