Judgment

B. P. JEEVAN REDDY, J.:- In these appeals, validity of 5. 5 of the Opium Act, 1878 and of certain Rules made thereunder by the Madhya Pradesh Government is called in question. Though the Opium Act, 1878 has since been repealed by S. 82 of the Narcotics Drugs and Psychotropic Substances Act, 1985, things done under the repealed Act are saved and continued under 1985 Act. We shall first state the relevant facts.

2. The appellant-company obtained a whole-sale licence in Form No. I under Rule 5 read with Rule 6 of the Madhya Pradesh Poppy Husks Rules, 1959 in February and March, 1974. In the month of March, 1974, it entered into a contract with M/s. Veregngde Pharmacutische Fabricken B. V. Kloosterstreat boss Holland (hereinafter referred to as the Dutch buyers) for supplying to the Dutch buyer 1000 metric tonnes of poppy husks. This contract was entered into in pursuance of "certificate of official approval of import" dated April 5, 1973 granted by the Dutch authorities in favour of the said Dutch buyer to purchase/import 1,000,000 kilograms of poppy husks from the appellant on or before 31st August, 1974. The appellant in turn obtained the "Official authorisation of export" from the Office of the Narcotics Commissioner, Government of India permitting him to export 1,000 metric tonnes of poppy shells (broken and crushed) to the aforesaid Dutch buyer. This certificate dated 14th March, 1974 refers specifically to the aforementioned Import Certificate dated 5th April, 1973 issued by the Dutch Authorities. It further specifies that the said goods shall be exported through the Customs House Bombay, by sea, to Holland within three months from the date of issue of the said Authorisation. On March 30, 1974, the appellant applied to the Collector of Excise, District Mandsaur, Madhya Pradesh for grant of permission to transport the said quantity of poppy husks from Madhya Pradesh. In this application the appellant stated the following facts: the appellant holds a wholesale licence granted under Rules 5 and 6 of Madhya Pradesh Poppy Husks Rules, 1959. It has received an order from the aforesaid Dutch buyer for supply of 1,000 tonnes of poppy husks in Holland. In pursuance of the said order, the appellant has to despatch from Mandsaur poppy husks of the said quantity for transportation across Indian customs frontier to Holland. The appellant has obtained the export authorisation dated 14th March, 1974 from the Narcotics Commissioner of India for despatch of the said poppy husks to Holland - a copy of which is enclosed. The Dutch buyer has also obtained the permit from the Dutch Government on 5th April, 1973 for the import of the said goods. The Dutch buyer has also arranged for a ship to call at the Bombay Port on 5th June, 1974 for taking delivery of the said consignment of poppy husks. Accordingly, the appellant is applying "for permission to transport and for the despatch of the said consignment of poppy husks of 1,000 tonnes from Madhya Pradesh for the purpose of executing the said order inasmuch as the said consignment of poppy husks will be despatched from Madhya Pradesh for export across customs frontier of India, no excise duty is leviable or payable under the Madhya Pradesh Poppy Husks Rules and hence, no amount is remitted along with the application. The appellant requested for grant of permit urgently so as to fulfil the contract within the specified date.

3. On April 15, 1974, the Collector of Excise, Mandsaur intimated the appellant that permission to transport poppy husks from Mandsaur District to the Port of Bombay would be granted only on payment of the export duty under and in accordance with the Madhya Pradesh Poppy Husks Rules. He declined to grant any such permit without payment of duty.

4. On April 16, 1974, the appellant approached the Madhya Pradesh High Court for issuance of a writ of mandamus and other appropriate writs directing the Collector of Excise, Mandsaur to grant the permit applied for without insistin