Union Of India & Ors vs M/S. Exim Rajathi India Pvt. Ltd

Union of India and Ors. ....Appellants

Versus

M/s Exim Rajathi India Pvt. Ltd. ....Respondent

JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of

the Bombay High Court in Writ Petition No.642/2006. The respondents had

imported 56 metric tons of garlic from China which was found to be

infected with Embellisia alli (fungus) and traces of Urocystis Capulae. The appellants withheld the permit for import of consignment until further

orders. Respondent nos.1 and 2 filed a writ petition in the Bombay High

Court which was directed as follows:

"The third respondent is directed to carry out

fumigation treatment by using Methyl Bromide as

prescribed in the Plant Quarantine (regulation of Import

into India) Order 2003 on the 56 metric tones of Chinese

garlic imported by the petitioners and lying in the

bonded warehouse at the Petitioner's costs.

After fumigation is complete which generally

takes 48 hours, the Respondent no.3 and 4 are directed to

forthwith permit the Petitioners to clear the 56 metric

tones of Chines garlic imported by the Petitioners and

lying in the bonded warehouse upon payment of

necessary duties on the actual weight of the garlic (since

the weight of the garlic has reduced since it landed on

the JNPT port) and completion of formalities, without

any further orders.

2 The order dated 6th October, 2005 passed by the

Third respondent and the order dated 28th December,

2005 are hereby set aside."

3. Review petition was filed which was dismissed. According to

learned counsel for the appellants there is strong risk of this fungus (at

present totality absent in India) affecting the future cultivation in India for

the reason that the scales of such infected garlic are peeled of for its use,

thrown into dust bins as garbage and used a manure. This is one of the

ways by which some of the fungus got introduced in countries including

India and elsewhere and caused permanent damage to the crops which the

agricultural experts found difficult to solve.

4. In the instant case, before the garlic was loaded in China for import

into India by the respondents, it was treated with methyl bromide

fumigation. But this is a treatment for killing insects and pests and not for

killing fungi. Fungi can be killed by fungicides and if earlier treated with

fungicides it becomes harmful for human consumption. The methyl

bromide fumigation treatment is not found to be effective against fungi as

found on testing by IARI, New Delhi. Methyl bromide treatment is

3 generally not recommended for perishable goods/commodities like garlic as

it has phyto-toxic effects and may deteriorate the quality by absorption of

bromide gas in the commodity. Methyl bromide fumigation treatment is

given for propagative material and not for consumption. Thus, such treated

garlic is dangerous for human consumption and also for Indian Agriculture.

5. Learned counsel for the respondent disputes the aforesaid stand of the

appellant.

6. With reference to the order dated 2.9.2008, learned counsel for the

respondent stated that the garlic which is the subject matter of dispute may

be destroyed by firing it in an acceptable manner in an open space.

7. In view of the peculiar circumstances of the case, we direct that the

articles shall be taken from the Customs Warehouse to a place where

destruction is to be made. The date, time and place shall be indicated by the

respondent nos. 1 and 2 to the appellants. The articles shall be destroyed by

fire in the presence of an authorized officer of appellant no.1. The cost of

the transportation from the Customs Warehouse to the place of destruction

shall be borne by respondent nos. 1 and 2.

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8. The appeal is accordingly disposed of.

.................................................J. (Dr. ARIJIT PASAYAT)

......

.............................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, November 26, 2008

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