Delhi High Court
J. Sai Deepak vs Central Board Of Excise & Customs ... on 22 August, 2012
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No. 3165 of 2012
% Judgment delivered on: August 22, 2012
J. SAI DEEPAK ... PETITIONER
through : In-person
VERSUS
CENTRAL BOARD OF EXCISE &
CUSTOMS AND ANR. ...RESPONDENTS
through: Mr. Satish Kumar, Adv. for
Respondent No.1
Ms. Sweety Manchanda,
CGSC for Respondent No.2
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI (Acting Chief Justice)
CM 10173/2012 (delay)
Delay in filing the counter affidavit by the respondent No.2 is
condoned.
CM stands disposed of.
WP(C) 3165/2012
This petition purportedly filed as Public Interest Litigation
challenges the vires of certain provisions of the Patents Act, 1970 and
Circulars. The prayer clause reads as under:
"(a) Declare that Section 107A(b) of the Patents Act,
1970 does not permit parallel imports which are not duly
authorized under Indian law; and consequently
(b) Quash the Impugned Circular No. 13/2012-
Customs (also numbered as F.No. 528/21039/08-
Cus/ICD) titled "Enforcement of Intellectual Property
Rights on imported goods - Clarification on the issue of
parallel imports-regarding" dated May 8, 2012, issued by
the Respondent No.1 as illegal since it is violative of
Sections 48 and 107A(b) of the Patents Act, 1970 and
Section 11 of the Customs Act, 1962;
(c) In the interim, stay the impugned Circular until the
disposal of the instant Petition."
2. It is stated by the petitioner that Section 107A(b) of the Patents
Act, 1970 permits imports of patented products only from a person who is
duly authorized under Indian law. Any import which is sourced from a
person who is not duly authorized under Indian law does not receive the
benefit of Section 107A(b), and is hence violative of the right of import
granted to a patentee under Section 48 of the Act. The impugned Circular
issued by the respondent No.1 in consultation with respondent No.2
implicitly takes the unqualified and broad position that Section 107A(b)
permits all kinds of "parallel imports" i.e. including imports which are
not duly authorized under Indian law. Consequently, the impugned
Circular runs counter to the legislative intent manifest in Section 107A(b)
of the Patents Act, 1970, thereby facilitating infringement of the right of
import granted under Section 48 of the Patents Act. Therefore, the
impugned Circular is violative of Section 11 of the Customs Act since it
facilitates contravention of the Patents Act. In short, the impugned
Circular represents an Executive action which overrides the sacrosanct
will of the Legislature.
3. We are afraid such a kind of writ petition cannot be entertained as
PIL. The petitioner is trying to advance the cause of those persons who
are neither indigent nor illiterate nor vulnerable groups. They are not
persons who cannot approach the Court themselves. The persons
concerned with such imports, who may be allegedly affected by the
aforesaid provisions, are well off importers and, therefore, if there is any
grievance of any such person, he can approach the Court.
4. Moreover, provisions of a particular Statute or Circular which is
statutory in nature cannot be challenged in vacuum.
5. We are, therefore, of the opinion that this petition as PIL is totally
misconceived and is accordingly dismissed.
ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE
AUGUST 22, 2012
pk
