REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.                  OF 2008 (Arising out of S.L.P.(C) No.11808 of 2006)

Union of India and Ors.          ….Appellants

Versus

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

J U D G M E N T

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.

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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

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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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