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$-60 HIGH COURT OF DELHI
W.P.(C) 1708/2016 & C.M.Nos.7319-7320/2016
INDIA TIMBER & SEASONING PLANT (PROP JAIKASHI
TRADING COMPANY PVT LTD) ..... Petitioner
Through Ms.Prema Priyadarshini with Mr.Pradyot Pravash, Advocates.
Through Ms.Manuja Gandhi with Mr.Sumit Rajpoot and Mr.Himanshu Dubey, Advocates.
Date of Decision: 08th March, 2016
JUDGMENT
1. Present writ petition has been filed challenging the order dated 26th October, 2015 issued by the Deputy Secretary, Government of India, Ministry of Agriculture and Farmers Welfare, directing the Plant Protection Advisor to file an FIR against the importer and exporter of the timber consignment as the Phytosanitary Certificate of the Exporter was forged.
2. Ms.Prema Priyadarshini, learned counsel for petitioner states that for a meager amount of Rs.5000 to Rs.6000 generally spent for the fumigation of the timber in the exporting country, the petitioner would not have procured a forged certificate. 2016:DHC:1936
3. She submits that for fault of an exporter, petitioner who is an importer cannot be blamed. In support of her contention, she relies upon Rules 3(16), 3(17), 9(1), 9(2) and 14(1) of the Plant Quarantine (Regulation of Import into India) Order, 2003 [hereinafter referred to as "Quarantine Order"]. The said Rules are reproduced hereinbelow:
4. On the other hand, learned counsel for the respondents contends that no import of consignment of timber can be permitted into India unless accompanied by the original Phytosanitary Certificate issued by an authorized officer at the country of origin. In support of her contention, learned counsel for the respondents relies upon Rule 3 (20) of the Quarantine Order. The same is reproduced hereinbelow:-
5. She also points out that as the petitioner was a repeat offender, the petitioner’s application for relaxation of conditions of Import Permit and Phytosanitary Certificate was referred to the Department of Agriculture and Cooperation.
6. Upon a query being raised by this Court, learned counsel for the respondents states that the Govt. of Ivory Coast has confirmed that a Phytosanitary Certificate issued to the petitioner is fraudulent. An email in this regard handed over by the learned counsel for the respondents to this Court is reproduced hereinbelow:- “………Original Message……… From angele yao˂affiensamu@yahoo.fr˃ Date: Oct 23, 2015 2:01:10 PM Subject: Re: Regarding PSC To:Anita˂anita.puri@nic.in˃.SILUE GNENEYERI˂gnesilue@yahoo.fr˃ Cc:“isyspht@aviso.ci”˂isysphyt@aviso.ci˃.us ppII˂bp.bimal@gov.in˃ Hello Madam/Sir I regret to inform you that the phytosanitary certificate concerned is a fraudulent certificate. Mr. Coulibaly LASSINA is retired. It therefore can not sign certificates.” With Kind regards YAO Amenan Angele Ingenieur Agronome ***************** Ministere de l‟Agriculture (MINAGRI) de la Cote d‟lvoire Direction de la Protection des Vegetaux, du Controle et de la Qualite (DPVCQ) Chef du Service de l‟lnspection Phytosanitaire au Port Maritime d‟ Abidjan.”
7. Having heard the learned counsel for the parties, this Court is of the view that in accordance with the Plant Quarantine Order, timber has to be fumigated by the exporter. Rules 3 (20) and 9 (1) make it abundantly clear that fumigation prior to export is mandatory. No importer can state that because the timber has been fumigated in India, it should not be sent back to the country of origin.
8. Though, undoubtedly the power of relaxation is contained in the Quarantine Order, yet it has to be exercised for some cogent reasons and that too, in larger public interest. In fact, as pointed out by the Supreme Court in Union of India and Others Vs. Exim Rajathi India Private Limited, (2009) 16 SCC 263, import of food and trees can be dangerous both for humans as well as for agriculture. This Court is also of the view that even if the fault cannot be attributed to the petitioner for non-fumigation by the exporter, the consignment in question cannot be allowed to remain in India as firstly, it would lay down a wrong precedent and secondly, non-fulfillment of mandatory condition of fumigation at exporter's end could have serious ramification for our flora and fauna as well as environment in general.
9. Consequently, this Court if of the view that the impugned order calls for no interference. However, the petitioner is given liberty to sue the exporter for damages in accordance with law.
10. Accordingly, the writ petition and the applications stand disposed of. MANMOHAN, J MARCH 08, 2016 KA