Calcutta High Court (Appellete Side)
Sankha Subhra Maity vs Union Of India & Another on 25 July, 2017
Author: Nishita Mhatre
Bench: Nishita Mhatre
1
08 25.07.2017
rpan Ct. No.01 MAT 1150 of 2017
with
CAN No.6584 of 2017
Sankha Subhra Maity
Vs.
Union of India & Another
Mr. Koushik Dey,
Mr. Biswadip Ghosh
... for the Appellant.
Mr. Moti Sagar Tiwari
... for the Respondents.
Aggrieved by the order passed by the learned Single Judge dismissing the writ petition filed by the Appellant, he has preferred the present appeal.
The Appellant imported 3558 cartons of apples from China. The bill of lading was submitted on 4th May, 2017 and the consignment arrived at the transhipment port of Krishna Pattanam on 23rd May, 2017. Thereafter, the consignment has arrived in Kolkata on 3rd June, 2017. On arrival of the consignment the Appellant applied for the plant quarantine certificate on 13th June, 2017. No communication has been received by the Appellant from Respondent No.2 as to whether the consignment was free of pesticides and fit for consumption in India. Hence, he filed a petition seeking a prayer that a mandamus be issued to the Respondents directing them to issue the plant quarantine certificate and permission for clearance of the consignment of apples imported by the Petitioner (Appellant herein).
Mr. Dey the learned Counsel appearing for the Appellant points out that no import can be banned or prohibited without a notification being issued by the Central Government in terms of the Destructive Insects and Pests Act, 1914. He points out that the consignment of apples is sought to be banned on the basis of a communication of the 2 Joint Secretary, Government of India, Ministry of Agriculture and Farmers Welfare, Department of Agriculture, Cooperation and Farmers Welfare, New Delhi to the Deputy Director General of Crop Management, Department of Crop Production (Office of Plant Protection), Ministry of Agriculture, Beijing, P.R. China. This communication, as pointed out by Mr. Dey, temporarily suspends the import of apples into India from China as on regular interception of the imported goods it was found to be full of quarantine pests. Under this communication dated 1st May, 2017 the temporary suspension was to be effective after thirty days from the issuance of the latter which means on or after 31st May, 2017.
The learned Single Judge has unfortunately not considered the fact that no notification had been issued banning the import of apples from China while dismissing the writ petition and the prohibition was sought to be effected on the basis of the aforesaid communication.
The Appellant had submitted an application for quarantine inspection and clearance of imported plants /plant products and others (cargo) on 13th June, 2017 which the Respondents contend it indicates that it was on a date after the ban came into effect and therefore, the quarantine certificate has not been issued.
This contention of the Respondents is also not correct as import of goods defined under the Plant Quarantine Order (Regulation of Import into India), 2003 means the act of bringing into any part or place of territory of Republic of India. Therefore, the relevant date is 23rd May, 2017 when the goods were brought into the Krishna Pattanam port which was a transhipment port. Moreover, the communication from the Joint Secretary, Government of India, Ministry of Agriculture and Farmers Welfare, Department of 3 Agriculture, Cooperation and Farmers Welfare, New Delhi to the Deputy Director General of Crop Management, Department of Crop Production (Office of Plant Protection), Ministry of Agriculture, Beijing, P.R. China was put up on the notice board and was not notified.
In these circumstances, we are of the view, that the Respondents ought to have considered the application submitted by the Appellant in accordance with law.
Accordingly, the impugned order is set aside. The application for quarantine inspection and clearance of imported plants /plant products and others (cargo) submitted by the Appellant on 13th June, 2017 shall be considered immediately by the Respondents and the result shall be communicated to the Appellant within a week. It is made clear that the Application shall not be rejected only on the basis of the communication dated 1st May, 2017 between the Joint Secretary, Government of India, Ministry of Agriculture and Farmers Welfare, Department of Agriculture, Cooperation and Farmers Welfare, New Delhi and the Deputy Director General of Crop Management, Department of Crop Production (Office of Plant Protection), Ministry of Agriculture, Beijing, P.R. China.
All the contentions of the petition and the grounds of appeal are contested by the Respondents.
Both appeal and the application are disposed of.
Photostat plain copy of this order, duly countersigned by the Assistant Registrar (Court), be given to the learned Counsel for the parties on their usual undertakings.
All the parties to act on the plain copy of the order.
(Nishita Mhatre, A.C.J.) (Tapabrata Chakraborty, J.) 4