Calcutta High Court
Ashok Kumar Jain vs Union Of India And Ors on 22 September, 2023
OD 1, 2, 3, 4
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
WPO 416 of 2021
ASHOK KUMAR JAIN
Vs
UNION OF INDIA AND ORS.
WPO 426 of 2021
DAULAL SARDA
Vs
UNION OF INDIA AND ORS.
WPO 436 of 2021
DAULAL SARDA
Vs
UNION OF INDIA AND ORS.
WPO 464 of 2021
JUVRAJ BOTHRA
Vs
UNION OF INDIA AND ORS.
BEFORE:
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date 22nd September, 2023
Appearance:
Mr. Prabhat Ranjan Dwivedi, Adv.
Mr. Priyankar Saha, Adv.
Mr. Chandan Kumar, Adv..
Mr. Hemant Tiwari, Adv
...For the petitioner
Mr. K.K. Maiti, Adv.
Mr. Tapan Bhanja, Adv.
...For Customs Authority
Mr. Kaushik Dey, Adv.
...for DRI
Mr. Somenath Bose, Adv.
Mr. Utpal Maitra, Adv.
Mr. Raj Sekhar Basu, Adv.
...For added respondent
The Court: Heard learned advocates appearing for the parties and
considered their submissions and affidavits-in-opposition filed by the
respondent Customs Authority/ respondent no. 2 and by the added
respondent Arecanut Research and Development Foundation, Mangalore
(hereinafter referred to as ARDF in short).
It has been recorded in the earlier order of this Court dated 15th
September, 2023 that the main legal issues raised by the petitioner in these
writ petitions are that the ceased betel nuts in question which has been
declared as a foreign origin on the basis of a test conducted by ARDF and its
report which is not a government approved laboratory and as to whether
such test report is acceptable under the law and the second issue relates to
violation of principles of natural justice by contending that the Authority
concerned who has tested the betel nuts in question was not allowed to be
cross-examined by the petitioner and thirdly that complete materials /
documents were not provided to the petitioner during the course of
impugned adjudication proceeding and on the factual and legal issue as to
whether ARDF is a government approved laboratory or not?
The petitioners in support of their contention and on the aforesaid
legal issues, have relied on an unreported decision of the Hon'ble Patna High
Court dated 24th July, 2013 in Civil Writ Jurisdiction Case No. 3784 of 2013
(Union of India vs. Salsar Transport Company) and relevant portion of the
said judgment is as follows :
"From the materials placed on the record by learned counsels for the
parties I am also of the view that the sample has not been drawn in
accordance with the provisions of Section 47 and Rule 2.4 of the Food Safety
and Standards Act and Rules. So far as the reliance on the report by M/s.
Arecanut Research & Development Foundation, Mangalore is concerned, the
petitioners have totally failed to bring on record any material to show that it
is an accredited laboratory by a competent authority under the Act and
Rules. Hence no legal liability can flow from the report of such an
institution."
The aforesaid judgment was upheld by the Appeal Court by the order
dated 25th November, 2013. On the same proposition of law petitioners have
also relied on another judgment of the Hon'ble Patna High Court dated 24th
January, 2019 in Civil Writ Jurisdiction Case No. 7589 of 2018 ( M/s.
Ayesha Exports vs. Union of India). The relevant paragraph of the aforesaid
judgment being paragraph 12 is quoted hereunder :
"12. Having heard learned Senior counsel for the petitioner and
learned Additional Solicitor General of India, this court is of the considered
opinion that once the learned coordinate Bench of this court has held that in
absence of there being any material to show that M/s. Arecanut Research &
Development Foundation, Mangalore is an accredited laboratory by
competent authority under the Act and Rules, it's report cannot have a
consequence of fastening of any legal liability and 'No legal liability can flow
from the report of such an institution' the respondent authorities were not
justified in again relying upon the ADRF Mangalore's report to justify the
seizure in question. In fact such an attempt of the respondent authorities
would be contemptuous in nature as it is likely to cause harassment to the
traders, by not following the judgment of the court."
Mr. Dwivedi, learned advocate appearing for the petitioners submits
that against the aforesaid judgment dated 24th July, 2013, department had
gone to appeal before the Hon'ble Supreme Court and the SLP was dismissed
by the order dated 8th May, 2014 though by the said order question of law
was kept open.
Mr. Maiti, learned advocate appearing for the respondents customs
authority could not produce any document before this Court to establish
that ARDF is a government approved laboratory. He simply relied on the
recording in the impugned adjudication order particularly 1.17.8 of the
impugned adjudication order and on perusal of which I find that nowhere it
is specifically stated therein that the aforesaid laboratory is a government
approved laboratory. I also find that the allegation of the petitioner on the
aforesaid legal issue is strengthened and fortified by a document annexed to
the writ petition being letter dated 4th January, 2018 issued by the
Government of India, Directorate of Arecanut and Spices Development,
Ministry of Agricultural and Farmers Welfare where in answer to the query
no. 4 it has been clearly stated that the aforesaid laboratory is not approved
and authorized to carry out such test and determine the origin of betel nuts.
Learned advocate for the ARDF/private respondent's argument
supports the legal contention of the petitioner raised in this writ petition that
the aforesaid laboratory upon the test of which respondent customs
authority has relied is not a government approved laboratory and as such its
test with regard to the origin of the betel nuts is not reliable and acceptable.
Considering the facts and circumstances of the case and submission
of the parties and the aforesaid judgments of the Hon'ble Patna High Court
and the aforesaid letter dated 4th January, 2018 issued by the Ministry of
Agricultural and Farmers Welfare and submission of added respondent
ARDF, I am of the considered view that the impugned adjudication order
based on report by the aforesaid laboratory is not sustainable in law and is
liable to be set aside accordingly and the matter is remanded back to the
adjudicating authority concerned to pass fresh adjudication order in
accordance with law after getting the betel nuts in question tested in a
government approved laboratory as Mr. Maiti, learned advocate appearing for
the respondent himself has agreed. All the issues raised in this writ petition
are kept open for the petitioner to raise the same in course of fresh
adjudication proceeding.
With these observations and directions, these writ petitions
being WPO 416 of 2021, WPO 426 of 2021, WPO 436 of 2021 and
WPO 464 of 2021 stand disposed of.
(MD. NIZAMUDDIN, J.)
TR/
