Indian Kanoon - Search engine for Indian Law

This writ petition is filed by the petitioner seeking direction to the respondent to release the goods to the petitioner detained as per Ext.P1 detention receipt dated 08.11.2016, and for other related reliefs.

2. Petitioner is a Non-Resident Indian. While returning to India, petitioner carried a few items including a 'drone' which is meant for use in petitioner's Photo Studio in Ernakulam. On arrival in India, petitioner made true declaration regarding presence of Drone. But, alleging that import of drone is prohibited, the same is detained by the respondent on 08.11.2016, as per Ext.P1. Though petitioner made a request as per Ext.P2 dated 20.12.2016, for release of drone, respondent is forcing the petitioner to re-export. Though as per Ext.P3 dated 27.07.2016 drones are brought under restricted category, such goods are not prohibited to import. As per Sec.80 of the Customs Act, 1962, goods which are prohibited alone can be detained. It is submitted by the  petitioner that, drones are available even on on-line shopping, and large number of engineering students are assembling drones as part of their project during their study. Drones are generally permitted as long as they fly over private property. If anyone wishes to fly drone over public property, permission should be obtained from the local authorities. Till Ext.P3 notification, there was no restriction to import drones. It is also stated, there is no notice or information given, regarding the restriction or prohibition to import. According to the petitioner, the entire actions of the respondent are illegal and unsustainable under law, and therefore, the respondent may be directed to release the goods detained as per Ext.P1.

3. Respondent has filed a statement and among other contentions, it is stated that, petitioner on his arrival on 08.11.2016 brought one Drone along with his personal baggage. The Ministry of Commerce & Industry, Department of Commerce, Directorate General of Foreign Trade, vide Notification No.16/2015-2020 dated 27.07.2016 (Ext.P3) has introduced policy condition for import of Unmanned Aircraft System (UAS)/Unmanned Aerial Vehicle (UAVs)/Remotely Piloted Aircraft (RPAs)/Drones as "Restricted". The Policy  Condition 'Restricted' is defined under ITC (HS), 2017, Schedule I - Import Policy as items, import of which is permitted under an Import Licence/Authorization/Permission granted by the Director General Foreign Trade (DGFT). It further stipulates that Application for import of 'Restricted' items may be made in ANF 2B, as per detailed policy/procedure prescribed in Chapter 2 of FTP and HBPvI. Further, as per Notification No.16/2015-2020 dated 27.07.2016, import of "Drone" require prior clearance of the Directorate General of Civil Aviation and import license from DGFT.

4. It is also stated, as per Sec.2(33) of the Customs Act, 1962, "Prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which, the conditions subject to which the goods are permitted to be imported, or exported, have been complied with. In the instant case, the passenger has not produced any clearance of the DGCA and import license from DGFT, as required for clearance of the drone imported by him, which thus means, petitioner has failed to  comply with the conditions subject to which the goods are permitted to be imported. Therefore, the drone brought by him has acquired the character of "Prohibited goods" as defined under the Customs Act, 1962. Hence, the drone imported by the petitioner is detained lawfully as a 'Prohibited item' vide Ext.P1 Detention Receipt. The contention raised by the petitioner with respect to non-issuance of trade notice or information is refuted by the respondent stating that the said information is available in the public domain, and therefore, ignorance of law is not an excuse to import any restricted or prohibited item. The petitioner himself has stated that he has imported the drone for commercial purposes, i.e., for commencing a studio and hence the same is not a bonafide baggage, as envisaged by Baggage Rules, 2016. Therefore, it is submitted that, petitioner may be directed to comply with the conditions contained in Ext.P3 notification for clearance of the goods, failing which, the goods will have to be adjudicated as mandated under the provisions of the Customs Act, 1962. It is also stated that the writ petition is premature in nature. 

5. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent. Perused the documents on record and the pleadings put forth by the respective parties.

6. The question to be resolved, revolves around Ext.P3 Notification dated 27.07.2016 issued by the Ministry of Commerce & Industry, Department of Commerce, Government of India, under which a restriction is created with respect to import of drones along with other similarly functional Aircraft systems. As discussed above, in order to import a drone, prior clearance of the Director General of Civil Aviation and import license from DGFT is required. According to the learned counsel for the petitioner, so far as there is no prohibition created under the Customs Act, for the import of drone, merely because a restriction is created as per Ext.P3, the goods cannot be detained. It is also contended that, after the adjudication proceedings as per Sec.125 of the Customs Act, option to pay fine in lieu of confiscation can be ordered by the adjudicating authority, and therefore, the goods could be provisionally released to the petitioner, as requested in Ext.P2 application. In that regard, learned counsel invited my  attention to Sec.110A of the Customs Act, which read thus: