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High Court Of Calcutta
AJIT KUMAR SENGUPTA
MAHAMED SAYEED - Appellant
Versus
UNION OF INDIA - Respondent
Matter 1325 Of 1988
Decided On : 04/26/1989
EXPORT - HUMAN SKELETONS - RESTRICTION - LEGALITY - PUBLIC NOTICE - RETROSPECTIVE EFFECT - DISCRIMINATION - EXPORT POLICY - INTERPRETATION - VALIDITY OF BAN - EXPORT LICENCE - CANCELLATION - EFFECT.
Fact of the Case:
The petitioner, an exporter of human anatomical specimens, challenged the decision of the respondents in not allowing the petitioner to import human skeletons and parts thereof. The petitioner had obtained export licenses against each shipment from the office of the Joint Controller of Imports and Exports in accordance with law and regulation in force at the relevant time. However, on August 19, 1985, the Union of India notified Exports (Central) Amendment Order No. E (C)O, 1077 AM (310) which purports to ban export of human skeleton and, or party thereof.
Finding of the Court:
The court held that the public notice dated August 19, 1985, which purported to ban the export of human skeletons and parts thereof, could not have any retrospective effect and, therefore, could not apply to the goods duly procured and processed before the said public notice was issued. The court also held that the said public notice could not come into effect until it was published in the Official Gazette and that mere printing of the Official Gazette containing the said public notice would not amount to an effective publication. The court further held that the respondents had discriminated against the petitioner by allowing other similarly situated persons to export the said goods while refusing to allow the petitioner to do so.
Issues: 1. Whether the public notice dated August 19, 1985, which purported to ban the export of human skeletons and parts thereof, could have retrospective effect? 2. Whether the said public notice could come into effect until it was published in the Official Gazette? 3. Whether the respondents had discriminated against the petitioner by allowing other similarly situated persons to export the said goods while refusing to allow the petitioner to do so?
Ratio Decidendi: 1. A public notice cannot have retrospective effect unless it is specifically provided so. In the absence of retrospective effect being given to the public notice specifically, the same would be applicable prospectively and only in respect of human skeletons and parts thereof which may be procured and certificates in this regard obtained from the authorities specified in serial No. 13 of the Import and Export Policy after coming into effect of the said public notice. 2. Mere printing of the Official Gazette containing a public notice does not amount to an effective publication of the said public notice. The public notice can only come into effect when the Official Gazette in which it has been printed is published, that is to say, made available to the public by circulation or by putting it on sale to the public. 3. Allowing other similarly situated persons to export the said goods while refusing to allow the petitioner to do so amounts to discrimination and is violative of Article 14 of the Constitution.
Final Decision: The court allowed the petition and directed the respondents to allow the petitioner to export the balance quantity of 1409 Kgs. of the subject goods upon the petitioner producing the necessary certificates from the police authority regarding the source of procurement of the said goods as well as the certificate from the foreign buyers that the materials are required for biological and medical purposes and the purchase orders are still subsisting or time has been extended by the foreign buyers for the export of these materials.
( 1 ) IN this application under Art. 226 of the Constitution the petitioner has challenged the decision of the respondent authorities in not allowing the petitioner to import Human Skeletons and parts thereof.
( 2 ) SHORTLY stated the facts are that the petitioner carries on business of export and import. The chief business of the petitioner is export of Human anatomical specimens i. e. Human Skeletons and or parts thereof. The petitioner is a member of the Association of the Exporters for Anatomical specimen, registered in the financial year 1976-77. The petitioner as also the other members of the said Association are exporters of Human anatomical specimens which are used for the Study of Anatomy and Biology by different Medical and research and or educational institutions in different parts of the world. The purchasers of such human anatomical specimens include American, Japanese, European, Australian, and Far East organisations. The foreign exchange earnings of the petitioner have been considerable. Data of the said foreign exchange earning of the petitioner for 3 recent years is given below :
1983-84 U. S. S. T. G. 2,44,283. 00 390. 00
1984-85 U. S. S. T. G. 2,98,049. 00 2,469. 50
1985 (till 19-8-1985)
U. S. S. T. G. 1,80,392. 50 9,475. 50
( 3 ) UP to Aug. 19, 1985 the petitioner exported the said goods after obtaining export licences against each shipment from the office of the Joint Controller of Imports and Exports in accordance with law and, or regulation in force at the relevant time.
( 4 ) ON May 15, 1985 an American concern, in Carolina Biological Supply Company of 2700 York Road Burlington, North Carolina 27245 USA placed an order in writing for supply for human skeleton preparations intended to be used only for medical and biological study and the petitioner accepted the said order. The shipment schedule of the said contract was extended by the said American Co. from time to time and the date since has been extended to June 30, 1988.
( 5 ) THE petitioner also received orders for supply of human skeleton preparation from several other foreign buyers which were intended solely for medical and/or biological study.
( 6 ) DURING the period April 1985 to Mar. 1988, the provisions regarding export of human skeletons and parts thereof were governed by the provisions of Cl. 13 of the Export Licencing Policy of items listed in Part B of Sch. A to the Exports (Control) Order, 1977.
( 7 ) IN order to comply with the conditions set out in col. 3 of the said serial No. 13 of the said B list of Sch. 1 to the Export (Control) Order, 1977, in respect of the goods to be exported pursuant to the said contracts with foreign buyers, the petitioner obtained and produced certificate from Police Authorities not below the rank of the Officer-in-Charge, of the Police Station concerned regarding the source of procurement which disclosed the quantity of goods by weight and number.
( 8 ) IN the said Police Certificates the goods procured by the petitioner had been mentioned. Endorsement by the respondent 3 (Joint Chief Controller of Imports and Exports) indicating the exports allowed against such certificates from time to time would also appear from the said certificates. The balance quantity to be exported is also mentioned therein. The aggregate of the balance quantity covesed by the said certificates is 1409 Kg.
( 9 ) ON 21st August, 1985 the petitioner sought for licence from the respondent 3 in respect of 2 Shipping Bills after duly complying with the existing rules and regulations. But the respondent 3 by his letter dated Aug. 23, 1985 refused the petitioner's said application on the alleged ground that the Government of India had imposed ban on the paid items with immediate effect.
( 10 ) THE petitioner thereafter came to know that on Aug. 19, 1985 the Union of India notified Exports (Central) Amendment Order No. E (C)O, 1077 AM (310) which purports to ban export of human skeleton and, or
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