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Birendra Bahadur Pandey Vs. Gramophone Co. of India Ltd. and ors. - Court Judgment

LegalCrystal Citation
Overruled ByGramophone Company of India Ltd. Vs. Birendra Bahadur Pandey and Ors.
SubjectIntellectual Property Rights
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 374 of 1982
Judge
Reported inAIR1984Cal69
ActsCopyright Act, 1957 - Sections 51 and 53; ;Customs Act, 1962 - Sections 2(23), 11, 11(O), 25 and 53; ;Import and Export Control Order, 1955 - Section 11; ;Constitution of India - Article 226
AppellantBirendra Bahadur Pandey
RespondentGramophone Co. of India Ltd. and ors.
Advocates:Manotosh Mukherjee, ;Biswarup Gupta, ;S. Roy Chowdhury and ;A.K. Auddy, Advs.
DispositionAppeal allowed
Cases ReferredR. v. Smith
Excerpt:
- sabyasachi mukharji, j. 1. this is an appeal from a judgment delivered and order passed by the learned trial judge on 14-10-1982. the petitioner before the learned trial judge and the main respondent in this appeal is the gramophone co. of india ltd. which carries on the business of manufacture and sale of records and/or recordings and/or cassettes etc. such recordings are carried out by the petitioner under the agreements with various composer artists and other performers. under such agreements the writ petitioner became the owner, according to the writ petitioner, of the original plates and, in any event, the first owner of the copyright of the said records and musical compositions. in the circumstances, the writ petitioner complained that it had the exclusive right to reproduce and.....
Judgment:
Sabyasachi Mukharji, J.

1. This is an appeal from a judgment delivered and order passed by the learned trial Judge on 14-10-1982. The petitioner before the learned trial Judge and the main respondent in this appeal is the Gramophone Co. of India Ltd. which carries on the business of manufacture and sale of records and/or recordings and/or cassettes etc. Such recordings are carried out by the petitioner under the agreements with various composer artists and other performers. Under such agreements the writ petitioner became the owner, according to the writ petitioner, of the original plates and, in any event, the first owner of the copyright of the said records and musical compositions. In the circumstances, the writ petitioner complained that it had the exclusive right to reproduce and manufacture records and/or cassettes from the original plates and no other person has or had any other copyright or other right with regard thereto and the petitioner was the first owner of the copyright in respect of the said records and/or cassettes and/or recordings. It is further the case of the petitioner that it came to learn from the Customs Authority that a consignment of pre-recorded cassettes sent by respondent 4, Universe Overseas Private Ltd., from Singapore for respondent 5 Messrs. Sungava Enterprises Concern, Kathmandu, Nepal, which is the appellant before us, had arrived at the port of Calcutta by S. S. Virgo. The petitioner further alleged that it came to learn that a large part of the consignment consisted of pirated cassettes, i.e., cassettes manufactured from recordings over which the petitioner had the sole copyright. The petitioner accordingly applied to the Registrar of Copyright. New Delhi, respondent 6, according to the petitioner, in accordance with the provisions of Section 53, Copyright Act, 1957. The petitioner thereafter filed an application under Article 226 of the Constitution in which the petitioner prayed for an appropriate writ commanding respondent 6, namely, the Registrar of Copyright, to dispose of the petitioner's application under Section 53, Copyright Act, and in accordance with law. The application contained, inter alia, the following prayers :

'(a) A writ of and/or an order and/or a direction in the nature of mandamus commanding respondent 6 to forthwith issue and pass an order that the said pre-recorded cassettes now lying at the Port of Calcutta infringed the copyright of your petitioner in the various records and/or recordings and that the same shall not be imported.

(b) A writ of and/or an order and/or a direction in the nature of mandamus commanding and directing respondents 1 and 2 to forthwith take appropriate steps under the Customs Act 1962 to inter alia confiscate the said cassettes and deliver the same to your petitioner.

(c) A writ of and/or an order and/or a direction in the nature of mandamus commanding and directing respondents 1 and 2 to forbear and refrain from releasing the said cassettes or any of them from their custody, care and control,

(d) A writ of and/or an order and/or a direction in the nature of prohibition prohibiting and restraining respondents 1 and 2 and each one of them from releasing the said cassettes or any of them from their custody, care and control.'

We may mention in this connection that respondents 1 and 2 in the writ petition were the Collector of Customs and the Assistant Collector of Customs. The other prayers are not relevant for the present purpose. The learned trial Judge issued a rule nisi and certain interim order. Thereafter an application was made for vacating the interim order by the present appellant before us. The application made by the present appellant before us was treated as the affidavit-in-opposition to the main rule and after giving opportunity for filing of the affidavit-in-reply the order impugned was passed on 14-10-1982. This is an appeal from the said order.

2. On behalf of the appellant it was urged that the reliefs sought for by the petitioner before the learned trial judge could not be entertained in law because it was contended that under Section 53, Copyright Act, 1957, no application was indeed made by the petitioner to the writ petition. In any event it was submitted that the application was not in prescribed form and lastly it was urged that before any action could be taken under Section 53, Copyright Act, 1957, the Registrar of Copyright had to be satisfied that there was copyright in favour of the petitioner and that by the goods which are the subject matter of the dispute there had been infringement of that copyright. We were taken through the rules and the prescribed form in order to indicate that the particulars of sufficient evidence had to be given in the application to enable the Registrar of Copyrights to come to that conclusion. In this case it was contended that there was no such application; there was no such material forwarded and that is a fact and, as such, the Registrar had not come to the decision about the infringement of any copyright or that the petitioner had any copyright in these cassettes which are the subject matter of the dispute in this case. There was some dispute whether any information about these cassettes had been given by the Customs Authority to the petitioner or the Customs Authority informed the petitioner about the alleged attempt of importation of the infringed copyright. There is some amount of confusion in the affidavit on behalf of the Collector of Customs and the submission made at the hearing are inconsistent with the averments made in the affidavit on behalf of the Collector of Customs on this point. But as nothing much of importance turns on this question, we need not pursue this aspect of the matter. That there was no order made as such as required under Section 53, Copyright Act, 1957, is more or less admitted by both the Registrar of Copyrights as well as by Collector of Customs. It was contended that the reliefs that have been asked for under the Customs Act would be the reliefs which could only be obtained, if there was an order and if there was an infringement under the Copyright Act. Our attention in this connection was drawn to several provisions of both the Customs Act as well as Copyright Act. But in order to appreciate this contention we have to refer to two treaties between the Government of India and the Government of Nepal. One is a treaty dealing with the trade between India and Nepal and another is a treaty dealing with the goods in transit in India going to Nepal. The treaty of transit recites that Nepal as a land-locked country needed access to and from the sea to promote its international trade. It also recognised the need to facilitate the traffic in transit through their respective territories. Article I of the said treaty reads as follows:

'The contracting parties shall accord to 'traffic in transit' freedom of transit across their respective territories through routes mutually agreed upon. No distinction shall be made which is based on flag of vessels, the places of origin, departure, entry, exit, destination, ownership of goods or vessels.'

Articles III, IV, V and VI read as follows:

'Article III: The term 'traffic in transit' means the passage of goods includingunaccompanied baggage across the territory contracting party when the passageis a portion of a complete journey whichbegins or terminates within the territoryof the other contracting party. Thetranshipment, warehousing, breakingbulk and change in the mode of transport of such goods as well as the assembly, disassembly or re-assemblyof machinery and bulky goods shall notrender the passage of goods outside thedefinition of 'traffic in transit' providedany such operation is undertaken solelyfor the convenience of transportation.Nothing in this Article shall be construedas imposing an obligation on either contracting party to establish or permit theestablishment of permanent facilities onits territory for such assembly, disassembly or re-assembly.Articte IV : Traffic in transit shall be exempt from customs duties and from ailtransit duties or other charges exceptreasonable charges for transportation and such other charges as arecommensurate with the costs of servicesrendered in respect of such transit.

Article V : For convenience of traffic in transit the contracting parties agree to provide at point or points of entry or exit, on such terms as may be mutually agreed upon and subject to their relevant laws and regulations prevailing in either country, warehouses or sheds, for the storage of traffic in transit awaiting customs clearance before onward transmission.

Article VI: Traffic in transit shall be subject to the procedure laid down in the Protocol hereto annexed and as modified by mutual agreement, except in cases of failure to comply with the procedure prescribed, such traffic in transit shall not be subject to avoidable delays or restrictions.'

Article IX recites that nothing in that Treaty would prevent either contracting party from taking any measures which might be necessary in pursuance of general international conventions, whether already in existence or concluded hereafter to which it was a party relating totransit, export or import of particularkinds of articles, such as, opium or otherdangerous drugs or in pursuance of general convensions intended to preventinfringment of industrial, literaryor artistic property or relating to false marks, or false indications of origin or other methods of unfair competition. The other treaty which we have mentioned is the treaty described a-s protocol to the treaty of transit between India and Nepal where certain warehouses, sheds and open space are mentioned as covered accommodation in Calcutta. Certain others are mentioned as open spaces. This treaty of trade also recites in Article II that the contracting party should endeavour to grant maximum facilities and to undertake all necessary measures for the free and unhampered flow of goods, needed by one country from the other to and from their respective territories. Article VIII of that treaty reiterates that the contracting parties agreed to co-operate effectively with each other to prevent infringement and circumvention of the laws, rules and regulations of either country with regard to matters relating to foreign exchange and foreign trade. Article X of that treaty also reiterates that nothing in his treaty should prevent the contracting parties from taking any measures which might be necessary for the protection of its essential security interests or in pursuance of general international conventions, whether already in existence or concluded hereafter, to which it was a party relating to transit, export or import of particular kinds of goods, such as, opium or other dangerous drugs. In this background we must examine the provisions of Customs Act to which our attention was drawn. There are certain definitions in the Customs Act upon which both sides rely. Section 2(23), Customs Act, 1962, defines 'import' ag follows :

' 'import' with its grammatical variations and cognate expressions means bringing into India from a place outside India.'

Section 2(27), Customs Act, only states [hat 'India' includes the territorial waters of India. Section 2(28) reiterates that 'Indian Customs Waters' means the water extending into the sea up to the limit of contiguous zone of India Section 2(25) also indicates that 'imported goods' mean any goods brought into India from a place outside India but did not include the goods which had been cleared lor home consumption.

3. Section 2(38) defines 'stores' which meant goods for use in a vessel or aircraft and included fuel and spare parts and other articles of equipment, whether or not for immediate fitting. Section 30(1) enjoins that the person-in-charge of a conveyance carrying imported goods should, within twenty-lour hours after arrival thereof at a customs station, deliver to the proper officer, in the case of a vessel or aircraft, an import manifest, and in the case of a vehicle, an import report, in the prescribed form. Other sub-sections deal with duties of the Customs Officer and nature of obligations on receipt of manifest. Section 11 of the Act gives power to prohibit importation and exportation of goods and permits the Central Government, by notification in the Official Gazette, to prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description. Section 51 deals with clearance of goods for exportation and provides that where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charge payable under this Aft in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation. Section 53 deals with transit of goods in same vessel or aircraft subject to the provisions of Section 11, any goods imported in a vessel or aircraft and mentioned in the import manifest as for transit in the same vessel or aircraft to any port or airport outside India or any customs port or customs airport may be allowed to be so transmitted without payment of duty. Section 54 deals with transhipment of goods without payment of duty in certain manner. Section 55 deals with entry, etc. of transmitted or transhipped goods on arrival at customs port or customs airport. Section 58 deals with licensing of private warehouses. Section 56 deals with transport of certain classes of goods subject to prescribed conditions.

4. Our attention was drawn to certain other Sections of the Customs Act, namely, Sections 64, 68, 144, 80, 46 and 30 in aid oi the submissions made at the Bar on the real questions involved in this case. In OUT opinion, these sections do not throw any significant light and we need not detain ourselves in dealing with the provisions of these sections. While we are on the Customs Act, we may incidentally refer to the Notifications to which our attention was drawn. It was submitted on behalf of the respondent that the said Notifications indicate that in case the goods imported into India from a foreign country for the purpose of export to Nepal or when goods imported into India from Nepal for the purpose of export to a foreign country then no duty would be leviable under the Customs Act in pursuance of the treaty of transit. The said Notification is Notification No. 68 Cus (G.S.R. No. 193-E) dt. 25-3-1978. The said Notification reads as follows .

'In exercise of the powers conferred by Sub-section (1) of Section 25, Customs Act, 1962 (52 of 1962), and in supersession of the notification of the Government of, India in the Department of Revenue and Banking No. 191-Cus., dated 2nd August 1976, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts-

(a) all goods when imported into India from a foreign country for the purpose of export to Nepal from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), and the whole of the additional duty leviable thereon under Section 3 of the said Customs Tariff Act;

(b) all goods when imported into India from Nepal for the purpose of export to a foreign country, from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), and the whole of the additional duty leviable thereon under Section 3 of the said Customs Tariff Act;

(c) all goods imported into India from Nepal for the purpose of export to a foreign country and all goods imported into India from a foreign country for the purpose of export to Nepal, when exported to the foreign country or, as the case may be, to Nepal, from the whole of the duly of customs leviable thereon under the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975).'

It was submitted that the said Notification indicates that pursuant, to the treaty whenever any goods entered or were imported into India, had the Notification (not?) been there, the said goods would have been liable to be treated as imported goods and would have been exposed to obligations to payment of customs duty. Similarly when the said goods were in the process of transhipment outside India or transferred outside India, in such a case no export duty would be leviable under the Customs Act. Thus it was submitted that the goods even for transit if entered into or went out of India would be either import or export as the case may be in terms of the definition provided in the Customs Act. It was submitted that whenever the Customs Act wanted that any goods in course of transhipment or entry into India to be separately treated either for home consumption or for transit purpose, those have been specifically cared for by the words or the provisions of specific sections, to which we have already referred and also exemptions given by the notification indicated here-inabove. It was, therefore, submitted that this specific inclusion by certain specific provision in the section and/or by the Notification indicated that otherwise, the goods for transhipment or transit in India would come within the mischief of definition of 'import' and would be 'import' in terms of the Customs Act.

5. Our attention was drawn to Section 85, Customs Act, which deals with stores which may be allowed to be warehoused without assessment to duty. Section 86 dealt with transit and transhipment of stores and provided where any stores imported in a vessel or aircraft might, without payment of duty, remain on board such vessel or aircraft while it was in India. Any stores imported in a vessel or aircraft might, with the permission of the proper officer, be transferred to any vessel or aircraft as stores for consumption as provided in Section 87 or Section 90. Section 87 provided that any imported stores on board a vessel or aircraft (other than stores to which Section 90 applies) might, without payment of duty, be consumed thereon as stores during the period such vessels or aircraft was a foreign-going vessels or aircraft.

In this connection we have also to examine the previsions of the Copyright Act to which our attention was drawn. Our attention was drawn to different sub-sections of Section 2 which define different expressions. Section 2 (d) gives the meaning of 'author'. Section 2(m) 'infringing copy'; Section 2(p) 'musical work;' Section 2(o) 'literary work'; Section 2(w) 'record' and Section 2(x) 'recording'. Section 30 deals with licences by owners of copyright. Section 51 deals with the situation when copyright is infringed. Section 51(b)(iv) provides that copyright in a work would be deemed to be infringed if one imports except for the private and domestic use of the importer into India. Section 53 is important upon which reliance was placed dealing with the importation of infringing copy. Sub-section (1) of the said section upon which the appellant mainly relies is as follows :

'53. Importation of infringing copies: (1) The Registrar of Copyrights, on application by the owner of the copyright in any work or by his duly authorised agents and on payment of the prescribed fee, may, after making such inquiry as he deems fit, order that copies made out of India of the work which if made in India would infringe copyright shall not be imported.'

6. It is the contention, as we have referred to hereinbefore, of the appellant before us that in this case there was no application in the prescribed form and there was no enquiry held and no order had been made declaring any copy to be infringing copy. Sub-section (2) of Section 53 states that subject to any rules under this Act, the Registrar of Copyrights or any person authorised by him in this behalf may enter into any ship, dock or premises where any such copies as are referred to in Sub-section (1) may be found and may examine such copies. Sub-section (e) stipulates that all copies to which any order made under Sub-section (1) applies shall be deemed to be goods of which the import had been prohibited or restricted under Section 19, Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly. Proviso to that sub-section stipulates that all such copies confiscated under the provisions of the said Act shall not vest in the Government but shall be delivered to the owner of the copyright in the work. Section 55 provides for civil remedies for infringement of copyright. Section 58 deals with the rights of owner against persons possessing or dealing with infringing copies. This is important to meet some of the arguments, made on behalf of the respondent and it may not be inappropriate to set out the provisions of the said section. The said section reads as follows :

'58. Rights of owner against persons possessing or dealing with infringing copies -- All infringing copies of any work in which copyright subsists, and all plates used or intended to be used for the production of such infringing copies shall be deemed to be the property of the owner of the copyright, who accordingly may take proceedings for the recovery of possession thereof or in respect of the conversion thereof;

Provided that the owner of the copyright shall not be entitled to any remedy in respect of the conversion of any infringing copies, if the opponent proves :

(a) that he was not aware and had no reasonable ground to believe that copyright subsisted in the work of which such copies are alleged to be infringing copies; or

(b) that he had reasonable grounds for believing that such copies or plates do not involve infringement of the copyright in any work.'

As mentioned hereinbefore, we were taken through the form of making of the application as well as the Rules guiding such applications. It was contended on behalf of the appellant that goods intended to be used in India or to be imported in India require licence under the Import Control Order. Our attention was drawn by the learned advocate for the respondent when we were delivering judgment to Section 11 of the Import Control Order, 1955 which by its proviso exempts application to any goods covered by the Import licence issued by the Government of Nepal and the importer had to furnish a bond to the Collector of Customs in the form prescribed by the Collector of Customs with a Scheduled Bank as surety to the effect that he shall pay the dirty and any penalty imposed for contravening Import Trade Control restictions in respect of the whole or any portion of the goods which is not proved to have entered the territory of Nepal. The submission was made that as in the case (sic) of notification under the Customs Act indicated that in case of the goods which were meant for Nepal special provisions had been made and therefore these goods should be construed to have been imported into India and the consequence should follow except to extent indicated. We are of the opinion, as we have mentioned hereinbefore, this provision deals specifically with the case if the goods are imported in India and then exported to Nepal, in such a situation this provision would come into effect. But this does not, as such, deal with the situation where the goods are unloaded or came not for consumption nor to be intermingled with Indian goods, but only for transit; whether or not such goods come within the expression of import, in our opinion, must be construed in the light of the meaning that it will give to that expression under the Customs Act, about which we shall shortly discuss. We have set out the various provisions of the Customs Act. The argument, as we have mentioned hereinbefore, on behalf of the appellant was, firstly, that there was no importation. Therefore, the provisions of the Customs Act upon which the writ petition was based and upon which the learned Judge had passed the order have no application. It was, secondly, contended that in any event in considering whether the goods were an infringed copy and liable to be confiscated under the provisions of Section 11 of the Customs Act this had to be decided by the Registrar of Copyrigh, and, in the facts and circum-stances of this case that having not been done, action under this section was not legal.

7. On behalf of the respondent, it was urged, by referring to various provisions of the Act, to which we have already referred, that it was importation. The moment the goods were brought into India, there was importation. Even in transit or during the transhipment, wherever the legislature wanted to make an exception that has been provided, even, in case of the goods covered by the treaty for despatch through India, either by notification under the Customs Act, to which we have already referred or by the proviso to the import Control Order, to which our attention was drawn as indicated above. Otherwise, these would have come within the mischief of the expression 'import' into India and in those circumstances, it was submitted that irrespective of any finding under Section 53 this importation in India was illegal or had become infringing copies and the customs authorities were entitled to take action against these goods and necessarily entitled to take all steps in respect of the same. Therefore, it was, secondly, contended that the fact upon which some reliance had been placed by the appellant that the country from which these cassettes were alleged to have come, viz. Singapore, there was no Copyright Act or the country to which these goods were meant to be delivered, viz. Nepal, there was no Copyright Act was irrelevant because if those were infringing copies under the Indian Act the moment the goods entered into India or imported into India again action could be taken under the Indian Act, under the provisions of the Customs Act read with the Copyright Act; We have set out the relevant provisions of the Customs Act as well as the 'Copyright Act upon which reliance was placed. We have set out the context in which the expression 'import' has been used. The expression 'import' came up for judicial examination, not in actual and similar circumstances as ours, but we can get some guidance from this decision. In this context reliance was placed on the decision of the Supreme Court in the case of Central India Spinning & Weaving and . v. Municipal Committee,Wardha : [1958]1SCR1102 . There, the Supreme Court was construing the C. P. and Berar Municipalities Act of 1922 and was concerned with the question whether the goods in transit were liable to be taxed under the Terminal Tax Act and in that context whether the terminal tax could be imposed the expressions 'export' and 'terminal' came up for consideration. The Supreme Court was construing Section 66(1)(o) and came to the conclusion that the municipal committee was authorised to impose the 'terminal tax on goods or animals imported into or exported from the limits of the municipality'. The question was, as the Supreme Court stated, whether the goods passing in transit through the municipal limits, without loading or unloading or stopping within the municipal limits were liable to terminal tax. It was held that by giving the words 'import into' or 'export from' their derivative meaning without reference to the ordinary connotation of these words as used in the commercial sense, the decided cases in India had ascribed a general meaning to these words, which from the setting, the context and history of the clause was not intended. To construe the words 'import' and 'export' as meaning 'bring in' or 'take out of or away from' and cover the goods in transit by the words 'imported into' or 'exported from' would make railway borne goods passing through a railway station within the limits of municipality liable to the imposition of tax on their arrival at the railway station or departure therefrom or both which would not only lead to inconvenience but also confusion and would also result in inordinate delays and unbearable burden on trade both inter-State and intra-State, It was hardly likely that that was the intention, according to the Rules of the legislature. Such an interpretation would lead to absurdity, which according to the rules of interpretation was to be avoided. The Supreme Court however noted 'import' was not merely the brining into but comprised something more, that is, interrupting and mixing up of the goods imported with the mass of property in the local area (underlined by us). Similarly, the word 'export' had reference to taking out of the goods which had become a part and parcel of the mass of the property of the local area and would not apply to the goods in transit, that is, brought into the area for the purpose of being transported out of it. If the intention was to tax such goods then the word used should have been re-exported, which meant exported again. Re-exportation meant the exportation of imported goods. Even assuming that the words 'imported into' or 'exported from' could be restricted only to that derivative meaning and thus construed to mean only 'brought into' or 'taken out or away' from this general meaning or qualified by the use of the prefix 'terminal' used adjectively with the word tax. Accordingly, the Supreme Court held that such goods were not liable to tax. The Supreme Court in its decision referred to various dictionary meanings as well as several decisions.

8. Therefore, we have to bear in mind that the Supreme Court reiterated that in order to give the expression used its proper meaning the context of statute in the facts and circumstances of the case has to be borne in mind. In this case we have mentioned two treaties with Nepal. In our opinion, these treaties though ,not binding as such for the construction of the sections may be used to clarify the expression used in case of doubt or in case two meanings could be given to the expression. This principle was reiterated by the Supreme Court in the case of V/O. Tractoroexport Moscow v. Tarapore & Co.,Madras : [1970]3SCR53 . There in para 17 at page 8 of the report the learned Judge observed as follows:--

'17. We may look at another well-recognised principle. In this country, as is the case in England, the treaty or International Protocol or convention does not become effective or operative of its own force as in some of the continental countries unless domestic legislation has been introduced to attain a specified result. Once, the Parliament has legislated, the Court must first look at the legislation and construe the language employed in it. If the terms of the legislative enactment do not suffer from any ambiguity or lack of clarity they must be given effect to even if they do not carry out the treaty obligations. But the treaty or Protocol or the convention becomes important if the meaning of the expressions used by the Parliament is not clear and can be construed in more than one way. The reason is that if one of the meanings which can be properly ascribed is in consonance with the treaty obligations and the other meaning is not so consonant, the meaning which is consonant is to be preferred. Even where an Act had been passed to give effect to the convention which was scheduled to it, the words employed in the Act had to be interpreted in the well established sense which they had in municipal law (see Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd., 1933 AC 402).'

9. Our attention was also drawn to the decision in the case of Padam Kumar Agarwalla v. Addl. Collector of Customs, Calcutta, AIR 1972 SC 542. There the accused, a citizen of Nepal, carried on business there. His business consisted entirely in exporting rice, dal and other products from Nepal to other countries. The accused contracted with a firm in Cairo for shipment of dal through Calcutta. After the product, i.e., dal reached Calcutta the consignment was seized and penal action taken against the accused for having re-exported the dal that had been exported from India to Nepal in contravention of the terms of the treaty entered into between India and Nepal in 1960. It was held that there was absolutely no basis for the conclusion of the adjudicating officer that the dal in question was of Indian origin, and that Nepal had not undertaken not to re-export the dal imported from India and hence there was no basis for coming to the conclusion that any of the terms of the treaty or even the assurances exchanged between the two countries had been contravened. Our attention was drawn to paras 7, 8 and 9 of the said decision at pages 543 and 544 of the said report.

10. The case of the respondent in this appeal made in the writ petition as appearing in para 10 of the affidavit of Su-kumar Shidore affirmed on 25-9-1982, is as follows:--

'10. The large scale piracy which is being carried on will clearly appear from a news item of the daily issue of The Telegraph dt. 31-8-1982. A copy of such news item is annexed hereto as part of this affidavit and marked 'C'. Such acts of piracy are within public knowledge. Nonetheless respondent 6 is Tailing and neglecting to take any step in the matter. The pirate cassettes and records are being imported under guise of import to Nepal and they are finding their way back across the Nepal-India border into the Indian market not only to the gross prejudice to the petitioner but also to the Government as well. Since the Government is earning a large revenue on account of excise duty and other taxes paid by the petitioner which it will not get if pirate cassettes and/or records are purchased.'

The grievance of the writ petitioner seems to have been that the goods were pirated goods imported under the guise of import to Nepal and these were finding their way back across the Nepal-India border into the Indian market not only to the gross prejudice to the writ petitioner but also to the Government concerned. But on that basis the learned Judge had not proceeded. There may be other remedies open to the petitioner in that case. If the goods which were transhipped through India or were in transit re-entered into India by violation of the law or treaty, the Customs Law would be broken. But we have to see here whether the goods which were meant for Nopal, were imported into India or not or whether these goods were really imported for Nepal and India was only an area of transit. The goods admittedly and indisputably were not mixed up with other goods made for home consumption in India.

11. Now we have to examine some of the decisions of the High Courts where this expression 'import' has come up for construction. The Madras High Court had occasion in the case of K. R. Ahmed Shah v. Additional Collector of Customs, Madras, 1981 ELT 153 to construe the expression 'import'. In the Madras High Court Mr. Justice Padmanabhan pointed out that to construe the words 'import' and 'export' as meaning 'bring in' or 'take out' of or away from and cover the goods in transit by the words 'imported into' or 'exported from' would make the air borne goods passing through India liable to confiscation or other penalties provided for under the Customs Act as soon as the plane landed or took off from the airport. Such an interpretation would not only lead to inconvenience and confusion but also result in inordinate delay and unbearable burden on the inter-State and intra-State trade. Therefore, it is well settled law that unless the goods were brought into the country for the purpose of use, enjoyment, consumption, sale or distribution and were incorporated in and got mixed up with the totality of the property in the country they could not be said to have been imported. Thus it could not be said that the moment the aircraft landed at the airport or the ship entered into the territorial waters of India, an importation had taken place. Importation could only be said to have taken place when the goods had crossed the customs barrier. The learned Judge observed at page 157 of the report at para 7 as follows :--

'7. A combined reading of Sections 77 and 80 would show that if a passenger declares an article under Section 77, he may import it if he is prepared to pay duty and if its import is not prohibited. If the passenger is not prepared to pay the duty and/or cannot produce the requisite import licence, he will not be allowed to clear it for import. In such a case, he may make a request to the proper officer to detain such article for the purpose of being returned to him on his leaving India. By making the declaration under Section 77, and the request under Section 80 the passenger expresses his intention not to import such an article. The question that was debated at the Bar is whether the petitioner can be deemed to have imported the goods when they had not passed the Customs barrier. The word 'import' has been defined in Section 2 (23) of the Act, thus:-- 'Import with its grammatical variations and cognate expressions means bringing into India from a place outside India''. The contention of Mr. Rao therefore is, the moment the aircraft landed at Mecnambakkam air-port, there was an import of the dia-monds in India. The learned counsel would contend that, if goods arrived by a vessel can be deemed to be imported into the country the moment they enter the territorial waters of India, there is every reason to conclude that the moment the plane landed at one of the air-ports of the country, the goods have been imported. However, it is now settled by high authority that unless goods that are brought into the country for the purpose of use, enjoyment, consumption, sale or distribution are incorporated in and get mixed up with the totality of the property in the country, they cannot be said to have been imported. It will be useful in this connection to refer to the decisions of the Supreme Court in Empress Mills v. Municipal Committee : [1958]1SCR1102 . In that case, Section 66 (1) (c) of the C. P. and Berar Municipalities Act, 1922 authorised the importation of a terminal tax on goods imported or exported from the limits of the municipality. The question was whether the goods passing in transit through the municipal limits without loading or unloading or stopping within the municipal limits was liable to the terminal tax. The Supreme Court observed thus -- 'By giving to the words imported into or exported from', their derivative meaning without any reference to the ordinary connotation of these words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which from the setting context and history of the clause was not intended. To construe the words 'import' and 'export' as meaning bring in or take out of or away from and cover the goods in transit, by the words imported into or exported from would make rail borne goods passing through a railway station within the limits of a municipality liable to the imposition of the tax on their arrival at the railway station or departure therefrom or both which would not only lead to inconvenience but confusion, and would also result in inordinate delay and unbearable burden on trade both inter-State and intra-State. It is hardly likely that that was the intention of the Legislature. Such an interpretation would lead to absurdity which has according to the rules of interpretation, to be avoided. Import is not merely the bringing into but comprises something more, i.e., 'incorporating and mixing or mixing up of the goods imported with the mass of the property' in the local area. Similarly the word export has reference to taking out of goods which had become part and parcel of the mass of the property of the local area and will not apply to goods in transit i.e., brought into the area for the purpose of being transported out of it. If the intention was to tax such goods then the word used should have been re-exported which means to export (imported goods) again.' This decision of the Supreme Court is authority for the proposition that goods could not be deemed to be imported the moment an aircraft lands in one of the airports in India as contended by Mr. Rao. The acceptance of Mr. Rao's contention would amount to making air borne goods passing through the airport in India liable to confiscation or other penalties provided for under the Act as soon as the plane lands or takes off from an airport and as pointed out by the Supreme Court would not only lead to inconvenience and confusion but also result in inordinate delays and unbearable burden on trade. If the argument of Mr. Rao is given its full effect then the moment an aircraft lands at an airport in India all the goods contained in the aircraft must be deemed to have been imported and the moment the aircraft takes off again the goods must be deemed to have been exported from the country. Consequently, the interpretation suggested by Mr. Rao, would, if I may respectfully borrow the language of the Supreme Court, 'lead to absurdity which according to the rules of interpretation should be avoided.' Similar view was expressed in the decision of the Madras High Court in the case of K. Jamal Co. v. Union of India, 1981 ELT 162 where the word 'import' in Section 2(23), Customs Act. 1962, meant bringing into India from a place outside India. 'Bringing into India' would obviously mean the clearance of goods which were also substantiated by Section 15. Therefore, the relevant date for import of the goods was the date of presentation of the bill of entry and not the date when the ship arrived at the port. Though the decision was based on the meaning of the expression 'import', the fads of that case were entirely different. Mr. Justice S. S. Chadha of Delhi High Court in the case of Trilochan Singh v. Union of India, 1981 ELT 667 had also occasion to construe the expressions 'import' and 'export'. The learned Judge observed that the words 'import' and 'export' could not be construed to mean to 'brine in' or 'take out' of India the goods because it would make even the airborne goods parsing through India liable to confiscation and other penalties as provided under the Customs Act, 1962. Such an interpretation would lead to chaos and confusion rendering the goods, intended to be taken to other countries liable to Customs Laws of this country. Therefore, unless the goods were brought into the country for the purpose of use, enjoyment, consumption, sale or distribution so that they were incorporated and got mixed up with the mass of the property of the country, they could not be said to have been imported. Importation could not be said only to have taken place when they had crossed the Customs barrier. Reliance had also been placed on the decision of Mr. Justice Padmanabhan which we have referred to hereinbefore. Indeed the trial Judge had himself expressed a similar view in the decision reported in (1981) 1 Cal HN 369.

12. Keeping the background that the treaties with Nepal dealt with two kinds of goods, namely, export from and import into Nepal of goods from India vis a vis and the treaty of transit read with protocol dealt with the goods which were in transit in India coming from other countries, Nepal being a land-locked country and construing the expressions used in the Customs Act in our opinion it would be wrong to say that the moment the goods crossed the Customs barrier or entered into the Indian territorial waters as defined in the Customs Act they should be construed to have been imported into India under the Customs Act and the other provisions relating to importation would be applicable for importation of these goods. Looking at from another point of view if we ac-cept the contention of the respondent advanced in this case, then that would mean all goods which are prohibited in India but which are not prohibited in Nepal could not have transit as such through India. That in our opinion would not be a reasonable construction to make specially keeping in view the background of the two treaties which we have mentioned hereinbefore. This construction we are making is in consonance with the principles laid down by the Supreme Court and the views expressed in the said decisions of the Madras High Court and that of Delhi High Court. If the grievance of the writ petitioner was, as it seems to have been, that the goods after entering into Nepal illegally re-entered into India and are mixed up with the mass of other properties, then other remedies might be open to the writ petitioner. Similarly if the allegations of the petitioner be true as was sought to be made out that the goods which were meant for transit had been stolen and surreptitiously mixed up with the Indian, goods, then other civil and criminal remedies might be open to the petitioner but not by invoking sections of the Customs Act or Copyright Act as was sought to be done by the writ petitioner in this case. Our attention was also drawn to Section 58, Copyright Act, which dealt with rights of owner against persons in possesion or dealing with infringing copies. We are, however, of the view that the Notification of the Customs Act as well as proviso mentioned in Section 11 (o). Import and Export Control Order, dealt with different kind of situation, i.e., after being imported into India and then again exported out of India and imported into Nepal. The proviso to which our attention was drawn as well as the Notification of the Customs Act do not deal with goods in transit which were not really imported into India. If that is the position, then, in our opinion, Section 51(b)(iv), Copyright Act, would have also no application,

13. While we were delivering the judgment, our attention was drawn to an English decision in the case of R. v. Smith (1973) 2 All ER 1161. There a consignment of Cannabis was sent by air from Nairobi to Bermuda via London Airport. At London Airport it was unloaded from an East African aircraft and held within the Customs area until it was transferred to another aircraft and flown to Bermuda. S was a party to the arrangement whereby the consignment of Cannabis was being sent from Nairobi to Bermuda and knew that the most likely route from Nairobi to Bermuda was via London. A letter referring to the shipment from Bermuda and telling him that he could make enquiries about it at London airport was found in S's possession. He was charged with, and convicted of, being knowingly concerned in a fraudulent evasion of the prohibition against the importation of Cannabis, contrary to Section 304(b), Customs and Excise Act, 1952, and of being knowingly concerned in a fraudulent evasion of the prohibition on the exportation of cannabis, contrary to Section 56(2) of the 1952 Act. He appealed contending that the cannabis had neither been 'imported' into, nor exported from, the United Kingdom within the meaning of the 1952 Act; Sections 44 and 45 of the Act showed that there was a distinction between merely 'unloading' and 'importing'; and in any event there was no evidence that S was knowingly concerned in the importation or exportation of the cannabis; no actus reus on his part in the United Kingdom had been established. The appeal was dismissed for the following reasons. On the true construction of Sections 44 and 45 (goods unloaded) could not be excluded from the categories of 'goods imported'. The Court there was concerned with Sections 44 and 45 of the said Act. We did not have the advantage of the entire provisions of the Act and certain discretion was used in the facts and circumstances of that case. But as we have the interpretation of the Supreme Court on the expressions of the Customs Act, we do not think that it would be safe to rely on the ratio of the said decision to which our attention was drawn as mentioned hereinbefore, specially in the context of the particulars of this case and treaties in this case which we have mentioned before.

14. Another contention was raised on behalf of the respondent that the order passed by the learned trial Judge was not final order and as such was not appealable. Having regard to the ratio of the order of the learned trial Judge, we are of the opinion that so far as the writ application was concerned, the order in question was a final order determining the rights of the parties about the maintainability of the writ application and about the entitlement of the parties to the reliefs in the writ application. In that view of the matter, we are not able to accept the submission of the respondent that this was not a final order.

15. In that view of the matter, the appeal must be allowed and the order of the learned trial Judge is set aside. The application under Article 226 of the Constitution is dismissed. The interim order will stand vacated with effect from 7-3-1983. In the facts and circumstances of the case, parties will pay and bear their own costs.

16. Learned Advocate for the respondents asks for certificate that it is a fit case for appeal to the Supreme Court. As we have followed the principles laid down by the Supreme Court, we do not think that it is a fit case for granting certificate for appeal to the Supreme Court. We, therefore, reject this prayer.

Suhas Chandra Sen, J.

I agree.


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