JUDGMENT

CHINNAPPA REDDY, J. :— Nepal is our neighbour. Unfortunately Nepal is land-locked. Nepals only access to the sea is across India. So, as one good neighbour to another with a view to maintain, develop and strengthen the friendly relations, between our two countries, by treaty and by International Convention, we allow a right of innocent passage in order to facilitate Nepals international trade. One of the questions before us is the extent of this right : Does the right cover the transit of goods which may not be imported into India? May goods which may not be brought into India be taken across Indian territory? What does "import" mean more particularly what does "import" mean in Section 53 of the Copyright Act? Can an unauthorised reproduction of a literary, dramatic, musical or artistic work or a record embodying an unauthorised recording of a record (which, for short, adopting trade parlance, we may call a pirated work), whose importation into India may be prohibited, but whose importation into Nepal is not prohibited, be taken across Indian territory to Nepal? These are some of the questions which arise for consideration in this appeal.

2. The questions have arisen this way : The appellant, the Gramophone Company of India Limited, is a well-known manufacturer of musical records and cassettes. By agreement with the performing artistes to whom royalties are paid, the appellant company is the owner of the Copyright in such recordings. The appellant received information from the Customs Authorities at Calcutta that a consignment of pre-recorded cassettes sent by Universal Overseas Private Ltd., Singapore to M/s. Sungawa Enterprises, Kathmandu, Nepal, had arrived at Calcutta Port by ship and was awaiting despatch to Nepal. The appellant learnt that a substantial number of cassettes were pirated works, this fact having come to light through the broken condition of the consignment which was lying in the Calcutta docks. Basing upon the information received, the appellant sought the intervention of the Registrar of Copyrights for action under Section 53 of the Copyright Act, 1957. This provision enables the Registrar, after making such enquiries as he deems fit, to order that copies made out of India of a work which if made in India would infringe copyright, shall not be imported. The provision also enables the Registrar to enter any ship, dock or premises where such copies may be found and to examine such copies. All copies in respect of which an order is made prohibiting their import are deemed to be goods the import of which is prohibited or restricted under Section 11 of the Customs Act, 1962. The provisions of the Customs Act are to have effect in respect of those copies. All copies confiscated under the provisions of the said Act are not to vest in the Government, but to be delivered to the owner of the copyright in the work. As the Registrar was not taking expeditious action on the application of the appellant and as it was apprehended that the pirated cassettes would be released for transportation to Nepal, the appellant, filed a writ application in the Calcutta High Court seeking a writ in the nature of Mandamus to compel the Registrar to pass an appropriate order under Section 53 of the Copyright Act and to prevent release of the cassettes from the custody of the customs authorities. The learned single judge of the Calcutta High Court, on the request of the appellant, issued a Rule Nisi and made an interim order permitting the appellant to inspect the consignment of cassettes and if any of the cassettes were thought to infringe the appellants copyright, they were to be kept apart until further orders of the Registrar. After causing the necessary inspection to be made, the Registrar was directed to deal with the application under Section 53 of the Copyright Act in accordance with law after hearing interested parties. The Registrar was directed to deal with the application within eight weeks from the date, of the High