Mahamed Sayeed v. Union Of India & Others

1. In this application under Art.226 of the Constitution the petitioner has challenged the decision of the respondent authorities in not allowing the petitioner to import Human Skeletons and parts thereof.

2. Shortly stated the facts are that the petitioner carries on business of export and import. The chief business of the petitioner is export of Human anatomical specimens i.e. Human Skeletons and or parts thereof. The petitioner is a member of the Association of the Exporters for Anatomical specimen, registered in the financial year 1976-77. The petitioner as also the other members of the said Association are exporters of Human anatomical specimens which are used for the Study of Anatomy and Biology by different Medical and research and or educational institutions in different parts of the world. The purchasers of such human anatomical specimens include American, Japanese, European, Australian, and Far East organisations. The foreign exchange earnings of the petitioner have been considerable. Data of the said foreign exchange earning of the petitioner for 3 recent years is given below:

1983-84 U. S.

S.T. G. 2, 44, 283.00

390.00

1984-85 U. S.

S.T. G. 2, 98, 049.00

2, 469.50

1985 (till 19-8-1985) U. S.

S.T. G. 1, 80, 392.50

9, 475.50

3. Up to Aug. 19, 1985 the petitioner exported the said goods after obtaining export licences against each shipment from the office of the Joint Controller of Imports and Exports in accordance with law and, or regulation in force at the relevant time.

4. On May 15, 1985 an American concern, in Carolina Biological Supply Company of 2700 York Road Burlington, North Carolina 27245 USA placed an order in writing for supply for human skeleton preparations intended to be used only for medical and biological study and the petitioner accepted the said order. The shipment schedule of the said contract was extended by the said American Co. from time to time and the date since has been extended to June 30, 1988.

5. The petitioner also received orders for supply of human skeleton preparation from several other foreign buyers which were intended solely for medical and/or biological study.

6. During the period April 1985 to Mar. 1988, the provisions regarding export of human skeletons and parts thereof were governed by the provisions of Cl. 13 of the Export Licencing Policy of items listed in Part B of Sch. A to the Exports (Control) Order, 1977.

7. In order to comply with the conditions set out in col. 3 of the said serial No. 13 of the said B list of Sch. 1 to the Export (Control) Order, 1977, in respect of the goods to be exported pursuant to the said contracts with foreign buyers, the petitioner obtained and produced certificate from Police Authorities not below the rank of the Officer-in-Charge, of the Police Station concerned regarding the source of procurement which disclosed the quantity of goods by weight and number.

8. In the said Police Certificates the goods procured by the petitioner had been mentioned. Endorsement by the respondent 3 (Joint Chief Controller of Imports and Exports) indicating the exports allowed against such certificates from time to time would also appear from the said certificates. The balance quantity to be exported is also mentioned therein. The aggregate of the balance quantity covesed by the said certificates is 1409 Kg.

9. On 21st August, 1985 the petitioner sought for licence from the respondent 3 in respect of 2 Shipping Bills after duly complying with the existing rules and regulations. But the respondent 3 by his letter dated Aug. 23, 1985 refused the petitioners said application on the alleged ground that the Government of India had imposed ban on the paid items with immediate effect.

10. The petitioner thereafter came to know that on Aug. 19, 1985 the Union of India notified Exports (Central) Amendment Order No. E(C)O, 1077 AM(310) which purports to ban export of human skeleton and, or party thereof.

11. The petitioner thereafter made several representations to the authority in Delhi for lifting the ban of the Export of 1409 Kg. of stock lying in hand. But the representations were rejected. According to the petitioner he had procured 3597 Kgs. of human skeleton and or parts thereof prior to the imposition of the ban imposed by the said Export (Control) Amendment Order and Public Notice No. 25-BTC PW, 83 both dt. 19th Aug. 1985 on the basis of order received from various foreign buyers. Out of the said procurement of 3597 Kgs. the petitioner exported 2188 Kgs. prior to the said ban leaving a balance of 1409 Kgs. The petitioner obtained the necessary certificate viz. police certificate wherein the police has certified, inter alia, that the petitioner had procured the materials through legal means. He also obtained certificate from foreign buyers that the materials were required for biological and or medical purposes only. As a result of the imposition of the said ban and also the aforesaid orders and or decisions by respondents declining to grant permission to the petitioner for exports of the said balance stock to his American buyers, Carolina Biological Supply Company, whose purchase order is still subsisting, the petitioner is suffering great financial loss. The value of the said balance stock exceeds Rs. 8 lakhs. As a result of the said wrongful action and/or decision of the respondents, the petitioner is prevented from honouring his commitments to the said American buyer and from earning valuable foreign exchange. The said balance stock cannot be sold in India because there is no purchaser in India. Moreover the said goods have been prepared according to the said specification of the said American buyers, Carolina Biological Supply Company. Time for supply goods under the said order of Carolina Biological Supply Company has been extended only up to 3rd June, 1988.

12. In this application the petitioner has challenged the refusal of the respondents to issue Export Licence and/or allow exportation of 1409 Kgs. of Human Skeletons. The contention is that the petitioner having procured the skeletons prior to the imposition of ban and having entered into firm contracts with foreign buyers, the respondents ought to have allowed export of balance quality of the said goods. It is also the contention that the ban can operate prospectively and it can (cannot) affect the contracts already entered into.

13. The contention of the respondents is that in view of public notice issued on 19th Aug. 1985 by the Chief Controller of Imports and Exports amending the relevant provisions of Import and Export Policy, no licence for export of human skeletons and parts thereof can be granted.

14. I have considered the rival contentions.

15. During the period April 1985 to Mar. 1988 the provisions regarding export of human skeletons and parts thereof were governed by the provisions of Cl. 13 of the Export Licensing Policy of items listed in Part B of Sch. A to the Exports (Control) Order, 1977.

16. The said Cl. 13 as it existed prior to the coming into effect of the public Notice dt. 19th Aug. 1988 reads as follows:

"13. Bones

(i) Deleted

(ii) Skeletons and or parts thereof Export of Human skeletons and parts thereof will be allowed by the and or parts thereof Port Licensing Authorities on production of certificates from (i) Police Authorities not below the rank of the Officer-in-Charge of the Police Station parts concerned regarding the source of procurement which should also indicate the quantity by weight or by number and the export will be allowed by the sensing authorities only to the extent mentioned in the certificate and (ii) foreign buyer that human skeletons are required for biological and medical purposes only. Export of other skeletons is allowed "on merits". (iii) Crushed Bones Export allowed within a limited ceiling on first-come first-served basis against firm sale contract backed by 100 per cent irrevocable letter of credit. (iv) Deleted. 17. The petitioner complied with the conditions laid down in the aforesaid Cl. 13 of the Import and Export Policy in exporting human skeletons and parts thereof. In respect of the said goods also, the petitioner in accordance with the requirements as contained in the said Cl. 13 of the Import and Export Police obtained certificates from the concerned Police Authorities regarding the source of procurement of the said goods. The certificates contained all the necessary details as were required under Cl. 13 of the Import and Export Policy. The petitioner also obtained certificate from the foreign buyer that the said goods were required for biological and medical purposes only (another requirement of Cl. 13 of the said Import and Export Policy).

18. The validity and legality of the impugned action of the respondents in refusing to grant Export licence to allow exportation of 1409 Kgs. of Human Skeletons and parts have been sought to be justified on the plea that in view of a Public Notice bearing No. 25-ETC (PN) 85 dt. 19th Aug. 1985 issued by the Chief Controller of Imports and Exports, Government of India amending the relevant provision of the Import and Export Policy (Vol. II) of 1985-88 no licence for export of human skeletons and parts thereof could be granted even in respect of the said 1409 Kgs. of the said goods.

19. The said Public Notice dt. 19th Aug. 1985 contained in the Supplementary Affidavit dated 2nd December, 1988 is as follows :

"Ministry of Commerce

New Delhi, the 19th Aug. 1985

Export Trade Control

Public Notice No. 25-ETC (PN)/85

Subject :- Export Policy of Human Skeletons and Parts thereof.

F.No. 49(3)/85-E II. Attention is invited to the Exports (Control) Amendment Order No. E(C)0.1977, AM(310) dt. 19th Aug. 1985, on the above subject.

2. It has been decided that, with immediate effect, export of Human Skeletons and Parts thereof will not be allowed.

3. No request for pre-ban commitments will be entertained in this regard.

4. Accordingly, the existing entry at S.No. 13(ii) of Policy Statement in page 14 of Import and Export Policy (Vol. II), 1985-88 shall be amended to read as under:-

S.No, as in Part "B" of Schedule 1 Description of the item Licensing Policy

13 (ii) Skeletons, other than Human Skeletons and Party thereof. "On Merits"

Note: Export of Human Skeletons and parts thereof not allowed.

R.L.Misra. Chief Controller of Imports and Exports."

20. For more than one reason the said public notice cannot have any application in respect of the goods duly procured and processed before the said public notice was issued.

21. The said Public Notice nowhere provided that the same was with retrospective effect. There can be no dispute that in the absence of retrospective effect being given to the Public Notice specifically, the same would be applicable prospectively and only in respect of Human Skeletons and Parts thereof which may be procured and certificates in this regard obtained from the authorities specified in serial No. 13 of the Import and Export Policy after coming into effect of the said Public Notice. In my view such public notice cannot have any retrospective effect at all. The said Public Notice and the amendments sought to be made thereby can have no effect or applicability whatsoever in respect of consignments of human skeletons and parts thereof for which Police Authorities not below the rank of the Officer-in-Charge of the Police Station concerned certified regarding the source of procurement. The quantity by weight or number has been indicated therein. The foreign buyer has certified that the human skeletons were required for biological and medical purposes as provided in the said serial No. 13 of the said Import and Export Policy.

22. In the instant case both the said Certificates were duly obtained prior to coming into effect of the said Public Notice. In the premises, the said Public Notice can have no application whatsoever in respect of the said 1409 Kgs. of the said goods. The purported action of the respondents in refusing to allow export of the said 1409 Kgs. of the said goods is, therefore, illegal.

23. Even assuming that the said public notice has any application to the facts of this case it cannot become operative until it is published in the Official Gazette. Such publication cannot be equated with mere printing of the Public Notice in the Gazette. It is the availability of the printed material to the general public that constitutes the publication required both under the law as well as under the rules of natural justice. The said Public Notice as would be apparent from a Trade Notice issued by the Assistant Chief Controller of Imports and Exports on behalf of the Joint Chief Controller of Imports and Exports, Calcutta, was made available to the public only on 29th Aug, 1985. Thus the said Public Notice could not have come into effect on and from 19th Aug. 1985. This is confirmed by the affidavit of Deputy Chief Controller of Imports and Exports, Calcutta affirmed on 12th Dec. 1988 on behalf of the respondents. It would be evident therefrom that the respondents themselves were unaware of the said Public Notice and that on 21st Aug. 1985 they allegedly came to know about the same through newspaper reports. By no stretch of imagination newspaper reports could amount to publication of a Gazette Notification.

24. Mere printing of the Official Gazette containing the said Public Notice cannot and would not amount to an effective publication of the said Public Notice. Until the Official Gazette in which any such Public Notice has been printed is published, that is to say, made available to the public by circulation or by putting it on sale to the public, there is no effective Public Notice in the Official Gazette. The date on which such official Gazette is made available to the public by placing it for sale to the public is the material date on which the said Public Notice can be said to have been effectively made in exercise of powers conferred upon the concerned authority.

25. Reference may be made to decisions of the Bombay and Madras High Courts reported in (1988) 33 ELT 83 (G.T.C. Industries Ltd. v. Union of India) and (1984) 18 ELT 152 [LQ/MadHC/1984/319 ;] ">(1984) 18 ELT 152 [LQ/MadHC/1984/319 ;] [LQ/MadHC/1984/319 ;] : (1985 Tax LR NOC 36) (Asia Tobacco Company Ltd. v. Union of India) respectively.

26. In Asia Tobacco Company (supra) the learned single Judge of the Madras High Court considering the several judgments of ire Supreme Court held that "The mere printing of the Official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to the notification within the meaning of R. 8(1) of the Rules. The intendment of the notification the Official Gazette is that in the case of either grant or withdrawal of exemption the public must come to know of the same. Notify even according to ordinary dictionary meaning would be "to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform". It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public. The communication from the Department of Publication, Government of India, dt. 23-4-1983 as per extract made above, leaves no room for doubt that the Official Gazette containing the withdrawal Notification was placed on sale for public only on 8-12-1982. Without a proper notification in the sense, without putting the public on notice of the same, it is not possible to enforce the withdrawal of the exemption earlier accorded. It is not a case of printing, (may be anterior to the publishing) and releasing to the public, the notification, on the same date which the Official Gazette bears. Neither the date of the notification nor the date of printing, nor the date of the Gazette counts for notification within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing the Official Gazette and stacking them without releasing to the public would not amount to notification at all. But, so far as the petitioner is concerned, we find that by the communication from the third respondent dt. 6-12-1982, which obviously was received by the petitioner on 7-12-1982, the petitioner was put on notice of the Withdrawal Notification. Hence, the Withdrawal Notification must be held to be effective so far as the petitioner is concerned only from 7-12-1982. The consequence of lack of due notification is that the Withdrawal Notification became effective so far as the petitioner is concerned only on and from 7-12-1982. It had no legal efficacy anterior to that date. The respondents have not denied the factual position that the Official Gazette containing the Withdrawal Notification, though dt. 30-11-1982 was, in fact, placed on sale for public only on 8-12-1982. The respondents are taking up a stand that the petitioner is expected to be aware of the Withdrawal Notification and that the words publish in Official Gazette and the words put up for sale to public are not synonymous and offering for sale to public is a subsequent step which cannot be imported into the, and the respondents are expressing similar stands. They could not be of any avail at all to the respondents to get out of the legal implications flowing from want of due notification, as exemplified above. Printing the notification in the Official Gazette, without making it available for circulation to the concerned public, or placing it for sale to the said public, would certainly not satisfy the idea of notification in the legal-sense. One of the stands taken by the Government regarding the withdrawal Notification, as if that would suffice the conception of due notification (sic). A similar contention was repelled by the Supreme Court in State of M.P. v. Ram Raghubir Prasad, AIR 1979 SC 888 [LQ/SC/1979/106] by pointing out "contextually speaking, we are satisfied that publication means more than mere communication to concerned Officials or Departments". If this is the legal and factual position, then, with regard to W.P. No. 6049 of 1984, it will stand allowed and a writ of declaration will issue declaring that the Withdrawal Notification took effect only from 7-12-1982 so far as the petitioner is concerned.

27. I respectfully agree with the views expressed by the learned Judge of the Madras High Court. The Bombay High Court has also taken similar view in G.T.C. Industries Ltd. (1988-33 ELT 83) [LQ/BomHC/1987/658] (supra).

28. The decision of the Supreme Court in Abdul Rehman v. Union of India reported in AIR 1987 SC 1147 [LQ/SC/1986/483] relied on by the respondents has no manner of application in the instant case. There the Supreme Court noted the fact that the Supreme Court was informed by the affidavit affirmed by the State of West Bengal recording that a ban has been imposed by the said Public Notice dt. 19th Aug, 1985 on the Export of Human Skeletons or parts thereof. The question about the date of publication of the said Public Notice or the date when it came into effect was neither an issue nor discussed in that case. As a matter of fact the respondents themselves by a Trade Notice dt. 29th Aug., 1985 reproduced the said Public Notice "for information of the trade". Thus there could be no reason or basis to contend that the said Public Notice came into effect on and from 19th Aug., 1985.

29. In the instant case the respondents, therefore, have no right, authority, or jurisdiction to refuse the export of at least 28 Kgs. out of 1409 Kgs. of the said goods for which the petitioner had submitted Shipping Bills for due endorsements by the respondents as was required on 21st Aug., 1985. The respondents, however, wrongfully and illegally under cover of a letter dt. 23rd Aug., 1985 returned the said Shipping Bills informing the writ petitioner that in view of the said Public Notice the said Shipping Bills could not be passed.

30. The last but not the least contention is that the petitioner has been discriminated against. It is contended that the respondents are seeking to discriminate between persons similarly situated in violation of Art.14 of the Constitution. Whereas the said respondents have refused to allow the petitioner to export the said 1409 Kgs. of the said goods, persons similarly placed like the petitioner were allowed to export a consignment of the said goods on 20th Aug., 1985 as would be evident from the endorsements made in this regard on the relevant documents by the respondents which the petitioner has brought on record of this proceeding.

32. In support of the aforesaid contention the petitioner has annexed several documents. The said documents would conclusively demonstrate that the goods covered by the permission granted by the respondents on 20th Aug., 1985 and confirmed again on 23rd Aug., 1985 were allowed to be exported on 26th Aug., 1985 by the concerned authorities including the Customs Authorities. This fact has been conceded by the respondents themselves in their affidavit affirmed on 12th Dec., 1988. As a matter of fact the respondents have also conceded that not only the goods covered by the aforesaid documents but also several other consignments of a firm, Messrs. Sourab, Calcutta were allowed to be exported by the concerned respondents and the Customs Authorities at Calcutta long after 21st Aug., 1985 when allegedly the respondents came to know about the said Public Notice. This would be evident from the annexures to the said affidavit.

32. Faced with this difficulty, the respondents contended in the affidavit that they had already issued a Show Cause Notice to the Messrs. Sourab on 7th Oct., 1985 and allegedly cancelled the Licence 3 months thereafter on or about 9th Jan., 1986. Neither issuance of the said Show Cause Notice nor cancellation of the Licence is of any consequence whatsoever. It is pertinent to note in this regard that there has been no averment in the said affidavit that the said Licences were cancelled retrospectively. As a matter of fact they could not have cancelled the licence retrospectively. Thus cancellation of the licence concerned would be only prospective. The goods covered by the concerned licences having been exported already 6 months prior to the cancellation of the licence, the said cancellation clearly shows the mala fide and arbitrary manner in which the respondents have acted in the matter.

33. Clause 13 of the said Import Export Policy would show the Export Licences have to be for a specific consignment covering specific quantity of goods. In the premises once the said Export Licence is granted and the goods exported in terms thereof or thereunder the Export Licence concerned ceases to have any further effect, the obligations in terms thereof being discharged by performance. In the premises any alleged cancellation of the said Licence long after exportation of the goods covered by the said Licence is a mere eye-wash and an idle and futile exercise.

34. It may be mentioned that even the Customs Authorities at Calcutta, as would be evident from the endorsement, had endorsed the licence issued by the respondents to the said M/s. Sourab on 23rd Aug., 1985 whereupon on or about 26th Aug., 1985 the said M/s. Sourab exported the consignment covered by the said Licence.

35. In my view there could be no reason not to grant the petitioner the similar benefit which has been granted to the said Messrs. Sourab. The petitioner and M/s. Sourab are similarly situated in the instant case in respect of the exportation of the said goods. There is no justifiable basis for allowing M/s. Sourab to export on the one hand and refusing to allow the petitioner to export the same goods on the other.

36. In my judgment the skeletons legally procured and processed before the ban should be allowed to be exported. If a public policy is involved, in that event no export at all should have been allowed. But after making representation to the public that if certain conditions are fulfilled the export of such goods would be allowed and the petitioner relying on the representation having fulfilled the conditions at his detriment should not be made to suffer. The prohibition must be reasonably construed to mean that the procurement made after the ban shall not be allowed to be exported. Whatever was legally procured before the ban for which certificates and licences were duly obtained, should be allowed to be exported being outside the purview of the ban.

37. For the reasons aforesaid, this application is allowed.

38. The petitioner shall be allowed to export the balance quantity of 1409 Kgs. of the subject goods upon the petitioner producing the necessary certificates from the police authority regarding the source of procurement of the said goods as well as the certificate from the foreign buyers that the materials are required for biological and medical purposes and the purchase orders are still subsisting or time has been extended by the foreign buyers for the export of these materials. Necessary licence for export of the said quantity of the materials shall be granted to the petitioner within one week after the petitioner produces the necessary certificates as mentioned hereinbefore. The export shall be made under the supervision of any of the officers of the respondents to be nominated by the Joint Chief Controller of Imports and Exports, Calcutta.

39. Let all parties act on signed copy of the operative part of the judgment and order upon the undertaking of the Advocate-on-Record of the parties to apply for and obtain certified copy.