Civil Appeal Nos
3216 3218 of 1983
Appeals by Special leave from the Judgment and Order dated the 10th February 1983 of the Calcutta High Court in Original Order Nos
374 376 of 1982
Soli J Sorabjee Harish N Salve Sudip to Sarkar  DN Gupta for the Appellant
Santi Bhushan SK Roy Chowdhury and HS Parihar for Respondent No 1 in CA
3216 of 1983
B Gupta SK Roy Chowdhary and HS Parihar for Respondent No 1
in CA
3217 18 of 1983 PA Francis RN Poddar for the Respondent
K Parasaran Attorney General Gopal Subramaniam and C V Subba Rao in response to notice
GS Sanghi Shankar Mitra and P Sinha for Intervener Oceanic Shipping Agency P Ltd The Judgment of the Court was delivered by CHINNAPPA REDDY J
Nepal is our neighbour
Unfortunately Nepal is land locked
Nepal s only access to the sea is across India
So as one good neighbour to another with a view to maintain develop and strengthen the friendly relations between our two countries by treaty and by International Convention we allow a right of innocent passage in order to facilitate Nepal s international trade
One of the questions before us is the extent of this right  Does the right cover the 670 transit of goods which may not be imported into India May goods which may not be brought into India be taken across Indian territory What does import mean more particularly what does import mean in Sec
53 of the  Can an unauthorised reproduction of a literary dramatic musical or artistic work or a record embodying an unauthorised recording of a record which for short adopting trade parlance we may call a pirated work whose importation into India may be prohibited but whose importation into Nepal is not prohibited be taken across Indian territory to Nepal These are some of the questions which arise for consideration in this appeal
The questions have arisen this way The appellant the Gramophone Company of India Limited is a well known manufacturer or musical records and cassettes
By agreement with the performing artistes to whom royalties are paid the appellant company is the owner of the Copy right in such recordings
The appellant received information from the Custom
Authorities at Calcuttath at a consignment of prerecorded cassettes sent by Universal Overseas Private Ltd Singapore to Ms Sungawa Enterprises Kathmandu Nepal had arrived at Calcutta Port by ship and was awaiting despatch to Nepal
The appellant learnt that a substantial number of cassettes were pirated works  this fact having come to light through the broken condition of the consignment which was lying in the Calcutta docks
Basing upon the information received the appellant sought the intervention of the Registrar of Copyrights for action under Sec
53 of the 
This provision enables the Registrar after making such enquiries as he deems fit to order that copies made out of India of a work which if made in India would infringe copy right shall not be imported
The provision also enables the Registrar to enter any ship dock or premises where such copies may be found and to examine such copies
All copies in respect of which an order is made prohibiting their import are deemed to be goods the import of which is prohibited or restricted under Sec
11 of the 
The provisions of the Custom Act are to have effect in respect of those copies
All copies confiscated under the provisions of the said Act are not to vest in the Government but to be delivered to the owner of the copy right in the work
As the Registrar was not taking expeditious action on the application of the appellant and as it was apprehended that the pirated cassettes would be released for transportation to Nepal the appellant filed a writ application in the Calcutta High Court seeking a writ in the nature of Mandamus to compel the Registrar to pass an appropriate order under Sec
53 of the and to prevent release 671 of the cassettes from the custody of the customs authorities
The learned single judge of the Calcutta High Court on the request of the appellant issued a Rule Nisi and made an interim order permitting the appellant to inspect the consignment of cassettes and if any of the cassettes were thought to infringe the appellant s copyright they were to be kept apart until further orders of the Registrar
After causing the necessary inspection to be made the Registrar was directed to deal with the application under Sec
53 of the in accordance with law after hearing interested parties
The Registrar was directed to deal with the application within eight weeks from the date of the High Court s order
In the event of any of the cassettes held back by the appellant being found not to infringe any provision of the Copy right Act the appellant was to pay damages as assessed by the Court
Against the learned Single Judge s order the consignee preferred an appeal under clause 15 of the Letters Patent
A Division Bench of the Calcutta High Court held that the word import  did not merely mean bringing the goods into India but comprehended something more that is incorporating and mixing or mixing up of the goods imported with the miss of the property in the local area
The learned judges thought it would be wrong to say that there was importation into India the moment the goods crossed the Indian customs barrier
Keeping in view the treaties with Nepal the Division Bench took the view that there was no importation when the goods entered India en route to Nepal
The appeal was therefore allowed and the writ petition filed by the present appellant was dismissed
And so the writ petitioner in the High Court has appealed to us under 136 of the Constitution
First we shall examine if there is any mandate of international law or if the rules of international law afford us any guidance and if such mandate or guidance is perceptive under Indian law
Two questions arise first whether international law is of its own force drawn into the law of the land without the aid of a municipal statute and second whether so drawn it overrides municipal law in case of conflict
It has been said in England that there are two schools of thought one school of thought propounding the doctrine of incorporation and the other the doctrine of transformation
  According to the one rules of international law are incorporated into the law of the land automatically and considered to be part of the law of the land unless in 672 conflict with an Act of Parliament
According to the other rules of International law are not part of the law of the land unless already so by an Act of Parliament judicial decision or long established custom
According to the one whenever the rules of international law changed they would result in a change of the law of the land along with them without the aid of an Act of Parliament
According to the other no such change would occur unless those principles are accepted and adopted by the domestic law 
Lord Danning who had once accepted the transformation doctrine without question later veered round to express a preference for the doctrine of incorporation and explained how courts were justified in applying modern rules of international law when old rules of international law changed
In fact the doctrine of incorporation it appears was accepted in England long before Lord Danning did so
Lord Danning himself referred to some old cases
Apart from those we may refer to West Rand Central Gold Mining Co vs The King1 where the court said It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country and that to which we have assented along with other nations in general may properly be called international law and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant
Lauterpacht in International Law General Works refers to the position in Germany France Belgium and Switzerland and says it is the same
He quotes what a German Court said to meet an argument that the role of customary international law conflicted with Art24 of the German Code of Civil Procedure
The court had said The legislature of the German Reich did not and could not intend any violation of generally recognised rules of international law when enacting article 24 of the German Code of Civil Procedure
Lauterpacht refers to another German case where the argument that there ought not to be a direct recourse to the law of nations except in so far as there has been formed a German customary law  was rejected with the statement The contention of the Creditor that international law is applicable only in so far as it has been adopted by German Customary law lacks foundation in law
Such a legal maxim would more 673 over if generally applied lead to the untenable result that in the intercourse of nations with one another there would obtain not a uniform system international law but a series of more or less diverse municipal laws
Lauterpacht summarises the position this way While it is clear that international law may and does act directly within the State it is equally clear that as a rule that direct operation of international law is within the State subject to the overriding authority of municipal law
Courts must apply statutes even if they conflict with international law
The supremacy of international law lasts pro foro interno only so long as the State does not expressly and unequivocally derogate from it
When it thus prescribes a departure from international law conventional or customary judges are confronted with a conflict of international law and municipal law and being organs appointed by the State they are compelled to apply the latter
There can be no question that nations must march with the international community and the Municipal law must respect rules of International law even as nations respect international opinion
The comity of Nations requires that Rules of International law may be accommodated in the Municipal Law even without express legislative sanction provided they do not run into conflict with Acts of Parliament
But when they do run into such conflict the sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves
The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law unless they are in conflict with Act of Parliament
Comity of Nations or no Municipal Law must prevail in case of conflict
National Courts cannot say yes if Parliament has said no to a principle of international law
National Courts will endorse international law but not if it conflicts with national law
National courts being organs of the National State and not organs of international law must perforce apply national law if international law conflicts with it
But the Courts are under an obligation within legitimate limits to so interpret the Municipal Statute as to avoid conformation with the comity of Nations or the well established principles of International law
But if conflict is inevitable the latter must yield
674 The proposition has been well stated by Latham CJ in Politics vs The Commonwealth1 Every statute is to be interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations or with the established rules of international law  
It must be held that legislation otherwise within the power of the
Commonwealth Parliament does not become invalid because it conflicts with a rule of international law though every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity
The question therefore is not a question of the power of the Commonwealth Parliament to legislate in breach of international law but is a question whether in fact it has done so
The Supreme Court of India has said practically the same thing in Tractor export Moscow vs Ms Tarapore  Company and Anr2 Now as stated in Halsboury s Laws of England Vol 36 page 414 there is a presumption that Parliament does not assert or assume jurisdiction which goes beyond the limits established by the common consent of nations and statutes are to be interpreted provided that their language permits so as not to be inconsistent with the comity of nations or with the established principles of international law
But this principle applies only where there is an ambiguity and must give way before a clearly expressed intention
If statutory enactments are clear in meaning they must be construed according to their meaning even though they are contrary to the comity of nations or international law
The observations show that the court was only concerned with a principle of interpretation but by implication it may be possible to say that the court preferred the doctrine of incorporation otherwise the question of interpretation would not truly arise
What has been 675 said in the Tractoroexport case is entirely consistent with what we have said earlier
Is there any well established principle of international law on the question of the right of land locked States to innocent passage of goods across the soil of another State It appears that the leading authorities on international law have expressed divergent views on the question of the transit rights of land locked countries
While one group of writers such as Sibert Scelle and others have held the view that these countries have an inherent right of transit across neighbouring countries other equally eminent authorities such as Mc Nair and Hyde have held the view that these rights are not principles recognised by international law but arrange but arrangements made by sovereign States
1 The result of the lack of unanimity has been that the land locked countries have to rely on bilateral regional or multi lateral agreements for the recognition of their rights
The very existence of innumerable bilateral treaties while on the one hand it raises it raises a presumption of the existence of a customary right of transit on the other it indicates the dependence of the right on agreement
The discontenting situation led to attempts by national to commodity the rules relating to transit trade
The earliest attempt was the Convention on the Freedom of Transit known generally as the Barcelona Convention
The second attempt was the Convention on the High Cease 1958
The most recent in the 1965 CONVENTION ON TRANSIT TRADE OF LAND LOCKED STATES
As this is the latest Convention on the subject and as both India and Nepal have signed the Convention it may be useful to refer to it in some detail
The Convention was the result of a Resolution of the United Nations General Assembly which recognising the need of land locked countries for adequate transit facilities in promoting international trade invited the Governments of Member States to give full recognition to the needs of land locked Member States in the matter of transit trade and therefore to accord them adequate facilities in terms of international law and practice in this regard bearing mind the future requirements resulting from the economic development of the land locked countries
Article 1 a of the Convention defines the term land locked States  as meaning any Contracting State which has no sea cast
The term traffic in Transit is defined like this the passage of goods including unaccompanied baggage across the territory of a Contracting State between 676 a land locked State and the sea when the passage is a portion of a complete journey which begins or terminates within the territory of that land locked State and which includes sea transport directly preceding or following such passage
The transshipment warehousing breaking bulk and change in the mode of transport of such goods as well as the assembly disassembly or reassembly of machinery and bulky goods shall not render the passage of goods outside the definition of traffic in transit provided that any such operation is undertaken solely for the convenience of transportation
Nothing in this paragraph shall be construed as imposing an obligation on any Contracting State to establish or permit the establishment of permanent facilities on its territory for such assembly disassembly or reassembly The term transit State is defined as meaning any Contracting State with or without a sea coast situated between a land locked State and the sea through whose territory traffic in transit passes 
Article 2 prescribes that freedom of transit shall be granted under the terms of this Convention for traffic in transit and means of transport
Traffic in transit is to be facilitated on routes in use mutually acceptable for transit to the Contracting States concerned
No discrimination is to be exercise based on the place of origin departure entry exit or destination or any circumstances relating to the ownership of the goods or the ownership place of registration or flag of vessels land vehicles or other means of transport used
article 3 provides for exemption of Traffic in Transit from customs duties or import or export taxes or any special dues in respect of transit within the transit State
article 4 refers to means of transport and tariffs
article 5 refers to methods and documentation in regard to customs transport Act
article 6 refers to storage of goods in transit
article 7 refers to delays or difficulties in traffic in transit
article 8 refers to free zones or other customs facilities
article 9 refers to provision of greater facilities
All that we need mention about Articles 4 to 9 is that details have necessarily to be worked out by mutual agreement
article 10 refers to relation to most favoured nation clause
article 11 refers to exceptions to Convention  or grounds of pubic health securities and protection
of intellectual property
It is perhaps useful to extract the whole of Art 11
Exceptions to Convention on grounds of public health security and protection of intellectual property 1
No Contracting State shall be bund by this Convention to afford transit to persons whose admission into its territory is forbidden 677 or for goods of a kind of which the importation is prohibited either on grounds of public morals public health or security or as a precaution against diseases of animals or plants or against pests
Each Contracting State shall be entitled to take reasonable precautions and measures to ensure that persons and goods particularly goods which are the subject of a monopoly are really in transit and that the means of transport are really used for the passage of such goods as well as to protect the safety of the routes and means of communication
Nothing in this Convention shall affect the measures which a Contracting State may be called upon to take in pursuance of provisions in a general international convention whether of a word wide or regional character to which it is a party whether such convention was already concluded on the date of this Convention or is concluded later when such provisions relate a to export or import or transit of particular kinds of articles such as narcotics or other dangerous drugs or arms or b to protection of industrial literary or artistic property or protection of trade names and indications of source or appellations of origin and the suppression of unfair competition
Nothing in this Convention shall prevent any Contracting State from taking any action necessary for the protection of its essential security interests
article 12 refers to exceptions in case of emergency
article 13 refers to application of the Convention in time of war
article 14 refers to obligations under the Convention and rights and duties of United Nations Members
article 15 refers to reciprocity
article 16 refers to settlement of disputes
article 17 refers to signature
article 18 refers to ratification
article 19
refers to accession
article 20 refers to entry in to force
article 21 refers to revision
article 22 refers to notifications by the Secretary General
And article 23 refers to authentic texts
618 It is thus seen that the Convention while providing for freedom of transit for the passage of goods between a land locked State and the sea across the territory of a transit State emphasizes the need for agreement between the land locked country and the transit country and more important for our present purposes it specifies certain exceptions
It is indeed remarkable that the Convention places traffic illicit in industrial literary or artistic property on the same footing as traffic in narcotics dangerous drugs and arms
This opinion of the International Community as revealed by the convention must be borne in my mind in our further consideration of the question
It may be interesting to notice here what Johan HE Fried who represented the Government of Nepal as one of the members of the delegation at the UN Conference which produced the Convention has to say about these exceptions
In an article which he wrote in the Indian Journal of International law he said The test of a treaty are its exceptions
The proof of a treaty pudding is when it cannot be eaten
It is the old problem of finding a balance between demands for saving clauses and the opposite claim that the very value of a treaty depends on its reliability
For land locked States conditions under their outlet to the outside world may be curtailed can of course be crucial
The Convention declares exceptions permissible for five reasons 1 certain well specified reasons of public policy 2 because of overriding international obligations 3 emergency in the country of transit 4 in case of war 5 protection of its essential security interests
A few words about each in view of their extraordinary importance
Exceptions for reasons of public policy
The State of transit may this is permissive not obligatory prohibit transit of certain goods for the reason that their import into its own territory is prohibited namely article 11 Para 1 a grounds of public morals eg indecent literature 679 b on grounds of public health or public security eg contaminated food or improperly packed explosives c as precaution against animal diseases plant diseases or pests
This clause dubbed at the Conference as the dirty pictures and rotten fish clause will not hamper international trade if properly applied
The same can probably be said of the measures which a Contracting State may be called upon to take poutetre amena a prendre in the equally authentic French version which is several niches less permissive in obedience to certain international treaties to which it is a party namely treaty provisions relating to a expert import or i transit of particular kinds of articles such as narcotics or other dangerous drugs or arms
As to arms this would therefore only become operative if a worldwide or regional treaty prohibiting or restricting international arms trade existed
b protection of industrial literary or artistic property or protection of trade names and the like These provisions are noteworthy because they permit the States of transit to enforce say a copy right or trade mark convention even if for example neither the country of origin nor of destination is party to it    
Far as these provisions go transit traffic must not be hampered for any other reason of public policy of the State of transit
If that State forbids importation of certain luxury goods for financial reasons or of certain textiles to protect its own spinning industry that is economic reasons or of shortwave radios for political reasons all such goods must still be permitted to pass through its territory
Qualifiedmergency       680 4
War         5
Protection of essential security interests    
We may now take a look at the treaties with our neighbour Nepal and the Protocols
First the Treaty of Trade  which was contracted in order to expand trade between their respective territories and encourage collaboration in economic development
article 2 stipulates that the contracting parties shall endeavour to grant maximum facilities and to undertake all necessary measures for the free and unhampered flow of goods needed by one country from the other to and from their respective territories
article 3 enjoins the contracting parties to accord unconditionally to each other treatment no less favourable than that accorded to any third country with respect to a customs duties and charges of any kind imposed on or in connection with importation and exportation and b import regulations including quantitative restrictions
article 4 provides that the contracting parties should on a reciprocal basis exempt from basic customs duty as well as from quantitative restrictions the import of such primary products as may be mutually agreed upon from each other
article 8 casts a duty on the contracting parties to cooperate effectively with each other to prevent infringement and circumvention of the laws rules and regulations of either country in regard to the matters relating to foreign exchange and foreign trade
article 9 specially provides that notwithstanding the earlier provisions of the treaty either Contracting Parry may maintain or introduce such restrictions as are necessary for the purpose of a protecting public morals b Protecting human animal and plant life c Safeguarding national treasures d safeguarding the implementation of laws relating to the import and export of gold and silver bullion and 681 e safeguarding such other interests as may be mutually agreed upon
Article 10 which may be extracted in full is as follows Nothing in this Treaty shall prevent either Contracting Party from taking any measures which may be necessary for the protection of its essential security interests or in pursuance of general international conventions whether already in existence or concluded hereafter to which it is a party relating to transit export or import of particular kinds of articles such as opium or other dangerous drugs or in pursuance of general conventions intended to prevent infringement of industrial literary or artistic property or relating to false marks false indications of origin or other methods of unfair competition
It appears to us that the Treaty of Trade concerned itself with trade between India and Nepal and not with trade between Nepal and other countries
The provisions relating to import export transit and the free and unhampered flow of goods refer to the import and the export from one country to another ie from India to Nepal and from Nepal to India and to the transit and the free and unhampered flow of goods in the course of trade between the two countries
Even so express reservation is made to enable each of the countries to impose restrictions for certain purposes and to take such measures as may be necessary for the protection of essential security interests and effectuating international conventions relating to opium and other dangerous drugs and also to effectuate general conventions intended to prevent infringement of industrial literary or artistic property or relating to false marks false indications or origin or other methods of unfair competition
article 10 The Treaty of Transit is more relevant
Its scheme and sequence and even the language indicate that it is based on the 1965 CONVENTION ON TRANSIT TRADE OF LAND LOCKED COUNTRIES
The Preamble to the treaty mentions that a treaty has been concluded recognising that Nepal as a land locked country needs access to and from the sea to promote its international trade and recognising the need to facilitate the traffic in transit through their territories 
article 3 defines Transit  in Transit  and is as follows The term Traffic in Transit  means the passage of goods including unaccompanied baggage across the territory of a Contracting party when the passage is a portion of a complete journey which begins 682 or terminates within the territory of the other Contracting Party
The transshipment warehousing breaking bulk and change in the mode of transport of such goods as well as the assembly or reassembly of machinery and bulky goods shall not render the passage of goods outside the idefinition of traffic in transit provided any such operation is undertaken solely for the convenience of transportation
Nothing in the Article shall be construed as imposing an obligation on either Contracting Party to establish or permit the establishment of permanent facilities on its territory for such assembly disassembly or reassembly
Art1 requires the Contracting Parties to accord Traffic in Transit  freedom of transit across their respective territories through routes mutually agreed upon making no destination based on flag of vessels the places of origin departure entry exit destination ownership of goods or vessels
article 4 exempts Traffic in Transit from customs duties and transit duties or other charges except reasonable charges for transportation and such other charges as are commensurate with the costs of services rendered in respect of such transit
article 5 requires each of the Contracting Parties to provide for the convenience of traffic in transit warehouses or sheds for the storage of traffic in transit awaiting customs clearance before onward transmission
article 6 stipulates that Traffic in Transit shall be subject to the procedure laid down in the Protocol Articles 8 and 9 correspond to the provisions of Articles 11 12 and 13 of the 1965 CONVENTION ON TRANSIT TRADE OF LAND LOCKED STATES and are similar to Article 9 and 5 to 10 of the Treaty of Trade and reserve the right of each of the contracting parties to impose restrictions for certain purposes and take measures in connection with certain interests
In particular article 9 mentions that nothing in the treaty shall prevent either Contracting Party from taking any measure which may be necessary in pursuance of general conventions intended to prevent infringement of industrial literary or artistic property or relating to false marks false indications of origin or other methods of 683 unfair competition
The protocol annexed to the Treaty of Transit contains a detailed procedure for the transit of goods across the territory of India en route from the Port of Calcutta to their Nepalese destination
The Protocol contains detailed provisions to ensure the goods reaching Nepal and to prevent the contingency of the goods escaping into the Indian market while on the way to Nepal
While the Treaty of Trade generally guarantees to each of the Contracting Parties the free and unhampered flow of goods needed by one country from the other the Treaty of Transit generally guarantees to each of the Contracting Parties freedom of transit across the territory of the other Contracting Party in respect of goods which have to pass through the territory of such other Contracting party to reach the first Contracting Party from outside the territory of the second Contracting Party
In practice the two treaties really mean a guarantee to Nepal to permit free and unhampered flow of goods needed by Nepal from India and a guarantee of freedom of transit for goods originating from outside India across the territory of India to reach Nepal
In the matter of payment of customs duties the Treaty of Trade provides for the most favourable treatment while the Treaty of Transit grants exemption from such payment
Both treaties contain reservations
There is a reservation enabling the imposition of such restrictions as are necessary for the purpose of protecting public morals human animal and plant life safeguarding national treasures the implementation of laws relating to the import and export of gold and silver bullion and the safeguarding of other mutually agreed interests
There is an express reservation for the protection of essential security interests
There is also provision for necessary measures in pursuance of general international conventions relating to transit export or import of articles such as opium or other dangerous drugs
There is further provision for taking necessary measures in pursuance of general conventions intended to prevent infringement of industrial literary and artistic property or relating to false marks false indications of origin or other methods of unfair competition
So the two treaties generally assure to Nepal the free and unhampered flow from India and freedom of transit across India to goods or of goods which we may say in the broad way are not res extra commercium
In particular the treaties expressly contain reservations enabling each of the contracting parties to 684 take measures in pursuance of general conventions for the protection of industrial literary and artistic property
So we have it that article 11 of the 1965 CONVENTION ON TRANSIT TRADE OF LAND LOCKED STATES article 10 of the Treaty of Trade and article 9 of the Treaty of Transit contain exceptions to protect industrial literary or artistic property and to prevent false marks false indications of origin or other methods of unfair competition pursuant to general conventions
Neither the International Convention of 1965 nor the Treaties between the two nations prohibit the imposing of restrictions for this purpose
On the other hand they contain reservations to the contrary
So great is the concern of the International Community for industrial literary or artistic property that the Convention on Transit Trade of Land locked Countries views traffic in this kind of property with the same gravity as it views traffic in narcotics dangerous drugs and arms
So the Convention on Transit Trade of Land locked States and the Treaties between the two countries leave either country free to impose necessary restrictions for the purpose of protecting industrial literary or artistic property and preventing faise marks false indications of origin or other methods of unfair competitions in order to further other general conventions
It is clear that for this purpose it is not necessary that the land locked country should be a party to the general Convention along with the transit country
The interpretation placed by Johan HE Fried that the provisions of the 1965
Convention permit the States of transit to enforce sa a Copyright or trade mark convention even if for example neither the country of origin nor of destination is party to it appears to us to be a correct interpretation
The next step for us to consider is whether there is any general Convention on Copyright
An artistic literary or musical work is the brain child of its author the fruit of his labour and so considered to be his property
So highly is it prized by all civilised nations that it is thought worthy of protection by national laws and international Conventions relating to Copyright
The International Convention for the protection of literary or artistic works first signed at Berne on 9th September 1886 was revised at Berlin in 1908 at Rome in 1928 at Brussels in 1948 at Stockholm in 1967 and finally at Paris in 1971
article 1 of the Convention as revised constitutes the countries to which the Convention applies into a Union for the protection of 685 the rights of authors in their literary and artistic works
The expression literary and artistic works  is defined to include every production in the literary scientific and artistic domain whatever may be the mode or formation of its expression
It is provided that the work shall enjoy protection in all countries of the Union
Various detailed provisions are made in the Convention for the protection of the works
article 9 provides that authors of literary and artistic works protected by the convention shall enjoy the exclusive right of authorising the reproduction of these works in any manner or form
It is also expressly stipulated that any sound or visual recording shall be considered as a reproduction for the purposes of the Convention
We are not really concerned with the several details of the Convention
But we may refer to article 16 which provides 1
Infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoy legal protection 2
The provisions of the preceding paragraphs shall also apply to reproductions coming from a country where the work is not protected or has ceased to be protected
The seizure shall take place in accordance with the Legislation of each country
India we may mention is a party to the Berne Convention
The Universal Copyright Convention which was first signed in Geneva on September 6 1952 was revised in Paris in 1971
Each Contracting State is called upon to undertake to provide for the adequate and effective protection of the right of authors and other copy right proterietors in literary scientific and artistic works including writings musical dramatic and cinematograph works and paintings engraving and sculpture 
The rights are to include the exclusive right to authorise reproduction by any means public performance and broadcasting
Each Contracting State is required to adopt such measures as are necessary to ensure the application of the Convention
The Convention is not in any way to affect the provision of the Berne Convention for the protection of literary or artistic works or membership in the Union created by that Convention
The Universal Copyright Convention is not applicable to the relationships among countries of 686 the Berne Union in so far as it relates to the protection of works having as their country of origin within the meaning of the Berne Convention a country of the Berne Union
India is a signatory to the Universal Copyright convention also
The time is now ripe for us to refer to our own of 1957
Section 2c h o p f and w define artistic work  dramatic work  literary work musical work  cinematograph film  and record  respectively
2y defines work as meaning any of the following works namely i a literary dramatic musical or artistic works ii a cinematograph film iii a record Record  is defined by Sec
2w to mean any disc tape perforated roll or other device in which sounds are embodied so as to be capable of being reproduced therefrom other than a sound track associated with the cinematograph film
Recording  is defined by Sec
2x to mean the aggregate of the sounds embodied in and capable of being reproduced by means of a record
Infringing copy  in relation to a record is defined to mean by Sec
2miii any such record embodying the same recording
If such record is made or imported in contravention of the provisions of the Act 
131 states that copyright shall subsist through out India in a original literary dramatic musical and artistic works b cinematograph films and c records
14 explains the meaning of Copyright  in relation to various works 
In the case of a record copyright is said to mean the exclaims right by virtue of and subject to the provisions of this Act to do or authorise the doing of any of the following acts by utilising the record namely i to make any other record embodying the same recording 687 ii to cause the recording embodying in the record to be heard in public iii to communicate the recording embodied in the record by radio diffusion Sec 141d
Sections 17 to 21 deal with Ownership of Copyright and the rights of the owner  Sections 22 to 29 with Term of Copyright  Sections 30 to 32 with Licences  Sections 33 to 36 with Performing Rights Societies  Sections 37 to 39 with Rights of Broadcasting Authorities Sections 40 to 43 with International Copyright and Sections 44 to 50 with Registration of Copyright
Sections 51 to 53 deal with infringement of Copyright
Sec 51 states when Copyright in a work shall be deemed to be infringed
In particular clause b states that Copyright shall be deemed to be infringed when any person i makes for sale or hire or sells or lets for hire or by way of trade displays or offers for sale or hire or ii distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright or iii by way of trade exhibits in public or iv imports except for the private and domestic use of the importer into India any infringing copies of the work 
There is an explanation to which it is not necessary to refer for the purposes of this case enumerates the acts which shall not constitute an infringement of copyright
It is unnecessary to refer to the various acts enumerated in Sec
it is enough to state that bringing into India an infringing work for the purpose of transit to Nepal or any other country is not one of the excepted acts
Sec 53 which is of direct relevance as it deals with importation of infringing copies  needs to be fully extracted 
It says 531 The Registrar of Copyrights on application by the owner of the copyright in any work or by this duly authorised agent and on payment of the prescribed fee may after making such inquiry as he deems fit order that copies made out of India of the work which if made in India would infringe copyright shall not be imported
2 Subject to any rules made under this Act the Registrar of Copyrights or any person authorised by him in this behalf may enter any ship dock or premises where any such copies as are referred to in sub section 1 may be found and may examine such copies
3 All copies to which any order made under sub section1 applies shall be deemed to be goods of which the import has been prohibited or restricted under Sec 11 of the  and all the provisions of that Act shall have effect accordingly Provided that all such copies confiscated under the provisions of the said Act shall not vest in the Government but shall be delivered to the owner of the copyright in the work
This provision empowers the Registrar of Copyrights to make an order that copies made out of India of any work which if made in India would infringe Copyright shall not be imported
This the Registrar may do on the application of the owner of the Copyright in that work or by his duly authorised agent on payment of the prescribed fee and after making such enquiry as he deems fit
689 The effect of such an order by the Registrar is to deem all copies to which the order applies to be goods of which the port has been prohibited or restricted under sec
11 of the Custom Act 1962 and to attract all the provisions of the that basis including the liability to be confiscated with the modification that copies confiscated under the provisions of the Act shall not vest in the Government but shall be delivered to the owner of the Copyright
The question is what does the word import  mean in Sec
53 of the  The word is not defined in the though it is defined in the 
But the same word may mean different things in different enactments and in different contexts
It may even mean different things at different places in the same statute
It all depends on the sense of the provision where it occurs
Reference to dictionaries is hardly of any avail particularly in the case of words of ordinary parlance with a variety of well known meanings
Such words take colour from the context
Appeal to the Latin root won t help
The appeal must be to the sense of the statute
Hidayatullah J in Burmah Shall etc vs Commercial Tax Officer has illustrated how the contextual meanings of the very words import  and export  may vary
We may look at Sec
53 rather than elsewhere to discover the meaning of the word import
We find that the meaning is stated in that provision itself
If we ask what is not to be imported we find the answer is copies made out of India which if made in India would infringe copyright
So it follows that import  in the provision means bringing into India from out of India
That we see in precisely how import is defined under the 
223 of the defines the word in this manner Import with its grammatical variation and cognate expression means bringing into India from a place outside India
But we do not propose to have recourse to to interpret expressions in the even if it is permissible to do so because Sec
53 of the is made to run with Sec 11 of the 
690 It was admitted by the learned counsel for the respondents that where go are brought into the country not for commerce but for onward submission to another country there can in law be no important
It was said that the object of the was to precious authorised reproduction of the work or the unauthorised explosion of the reproduction of a work in India and this object would not be frustrated if infringing copies of a work were allowed transit across the country
If goods are brought in only to go out there is no import it was said
It is difficult to agree with this submission thought it did find favour with the Division Bench of the Calcutta High Court in the judgment under appeal
In the first place the language of Sec 53 does not justify reading the words imported for commerce for the words imported 
Nor is there any reason to assume that such was the object of the legislature
We have already mentioned the imported attached by International opinion as manifested by the various International Conventions and Treaties to the protection of Copyright and the gravity with which traffic in industrial literary or artistic property is viewed treating such traffic on par with traffic in narcotics dangerous drugs and arms
In interpreting the word import  in the  we must take note that while positive requirement of the Copyright Conventions is to protect copyright negatively also the Transit Trade Convention and the bilateral Treaty make exceptions enabling the Transit State to take measure to protect Copyright
If this much is borne in mind it becomes bear that the word import  in Sec
53 of the cannot bear the narrow interpretation sought to be placed upon it to limit it to import for commerce
It must be interpreted in a sense which will fit the into the setting of the International Conventions
The Calcutta High Court thought that goods may be said to be imported into the country only if there is an incorporation or mixing up of the goods imported with the mass of the property in the local area
In other words the High Court realized on the original package doctrine  as enunciate by the American Court
Reliance was placed by the High Court upon the decision of this court in the Central India Spinning and Weaving  Manufacturing Co Ltd The Empress Mills Nagpur vs The Municipal Committee Wardha  That was a case which arose under the CP and Berar Municipalities Act and the question was whether the power to impose a terminal tax on goods or animals imported into 691 or exported from the limits of a municipality included the right to levy tax on goods which were neither loaded or unloaded at Wardha but were merely carried across through the municipal area 
This court said that it did not
The word import  it was thought meant not merely the bringing into but camprised something more that is incorporating and mixing up of the goods with the mass of the property in the local area  thus accepting the enunciation of the Original Package Doctrine  by Chief Justice Marshall in Brown vs State of Maryland Another reason given by the learned Judges to arrive at the conclusion that they did was that the very levy was a terminal tax  and therefore the words import and export  in the given context had something to do with the idea of a terminus and not an intermediate Stage of a journey
We are afraid the case is really not of any guidance to us since in the context of a terminal tax  the words imported and exported  could be construed in no other manner than was done by the Court
We must however say that the original package doctrine  as enunciated by Chief Justice Marshall on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras vs Buddu Paidama and again by the Supreme Court in State of Bombay vs FN Balsara  Apparently these decisions were not brought to the notice of the court which decided the case of Central India Spinning and Weaving and Manufacturing Co Ltd The Empress Mills Nagpur Municipal Committee Wardha
So we derive no help from this case
As we said we prefer to interpret the words import  as it is found in the rather than research for its meaning by referring to other than research statutes where it has been used
The learned counsel for the appellant invited our attention to Radhakishan vs Union of India  1965 2 SCR 213 Shawhney vs Sylvania and Laxman  Bernado vs Collector of Customs AIR 1960 Kerala 170 to urge that importation was complete so soon as the Customs barrier was crossed
They are cases under the and it is needless for us to seek aid from there when there is enough direct light under the and the various conventions and treaties which have with the subject Copyright  from different angles
We do not also desire to crow our judgment with reference to the history of the Copyright and the Customs legislations in the United Kingdom and India as we do not think it necessary to do so in this case
We have therefore no hesitation in coming to the conclusion that the word import  in Secs
51 and 53 of the 692 means bringing into India from outside India  that it is not limited to importation for commerce only but includes importation for transit across the country
Our interpretation far from being inconsistent with any principle of International law is entirely in accord with International Conventions and the Treaties between India and Nepal
And that we think is as it should be
We have said that an order under Sec
53 may be made by the Registrar of Copyrights on the application of the owner of the Copyright but after making such enquiry as the Registrar deems fit
On the order being made the offending copies are deemed to be goods whose import has been prohibited or restricted under Sec
11 of the 
There upon the relevant provisions of the are to apply with the difference that confiscated copies shall not vest in the Government but shall be delivered to the owner of the Copyright
One fundamental difference between the nature of a Notification under Sec
11 of the and an order made under Sec
53 of the is that the former is quasi legislative in character while the latter is quasi judicial in character
The quasi judicial nature of the order made under Sec
53 is further emphasised by the fact that an appeal is provided to the Copyright Board against the order of the Registrar under Sec72 of the 
We mention the character of the order under Sec 53 to indicate that the effect of an order under of the is not as portentous as a notification under Sec
11 of the 
The Registrar is nor bound to make an order under Sec
53 of the so soon as an application is presented to him by the owner of the Copyright
He has naturally to consider the context of the mischief sought to be prevented
He must consider whether the copies would infringe the Copyright if the copies were made in India
He must consider whether the applicant owns the Copyright or is the duly authorised agent of the Copyright
He must hear these claiming to be affected if an order is made and consider any contention that may be put forward as an excuse for the import
He may consider any other relevant circumstance
Since all legitimate defences are open and the enquiry is quasi judicial no one can seriously complain
In the result the judgment of the Division Bench is set aside and that of the learned single judge restored
There is no order as to costs
We are grateful to the learned Attorney General who appeared at our instance for the assistance given by him
HSK Appeal allowed


Summary:
By treaty and by international convention India allows transit facilities to Nepal its neighbour and a land locked country
A company based in Kathmandu Nepal imported a consignment of pre recorded cassettes from Singapore which was awaiting its despatch to Nepal at Calcutta Port
As the 665 appellant company suspected those cassettes to be unauthorised reproductions of its records and cassettes the import of which into India was prohibited the appellant company moved the Registrar of Copyrights for action under s53 of the which enables the Registrar after making such enquiries as he deemed fit to order that copies made out of India of a work which if made in India would infringe copyright shall not be imported
As the Registrar did not take expenditious action the appellant company moved the High Court by a writ petition
A single Judge made an interim order permitting the appellant company to inspect the consignment and if any of the cassettes were found to have infringed the appellant s copyright they were to be kept apart until further orders of the Registrar
The Registrar was directed to deal with the application of the appellant company in accordance with law
The consignee preferred an appeal against this order of the single Judge
A Division Bench of the High Court allowed the appeal and dismissed the writ petition of the appellant company
The Division Bench held that there was no importation when the goods entered India en route to Nepal
The Division Bench was of the view that the word import  did not merely mean bringing the goods into India but comprehended something more that is incorporating and mixing or mixing up of the goods imported with the mass of the property in the local area
The company obtained special leave to appeal
The questions which arose were  i whether international law is of its own force drawn into the law of the land without the aid of a municipal statute ii whether so drawn it overrides municipal law in case of conflict iii whether there is any well established rule of international law on the question of the right of land locked states to innocent passage of the goods across the soil of another state and iv what is the meaning of the word import  used in s53 of the 
Allowing the appeal  HELD  On questions i  ii
There can be no question that nations must march with the international community and the municipal law must respect rules of international law even as nations respect international opinion
The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament
But when they do run into such conflict the sovereignty and the integrity of the republic and the supremacy of the constituted legislatures in 666 making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves
The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law unless they are in conflict with an Act of Parliament
Comity of nations or no municipal law must prevail in case of conflict
National courts cannot say yes if Parliament has said no to a principle of international law
National courts will endorse international law but not if it conflicts will national law
National courts being organs of the national state and not organs of international law must perforce apply national law if international law conflicts with it
But the courts are under an obligation within legitimate limits to so interpret the municipal statute as to avoid confrontation with the comity of nations or the well established principles of international law
But if conflict is inevitable the letter must yield
673 E H Per Lord Danning MR in Trend text Trading Corpn
vs Central Bank 1977 I All ER 881 West Rand Central Gold Mining Co vs The King 1905 2KB 391 Lauterpacht in International Law General Works Latham CJ in Politics vs The Common wealth 70 Commonwealth Law Reports 60 Tractoro export Mascow vs Ms Tarapore  Company and Anr  referred to
On question iii
As the leading authorities on international law expressed divergent views on the question of the transit rights of land locked countries the result has been that the land locked countries have to rely on bilateral regional or multi lateral agreements for the recognition of their rights
They very existence of innumerable bilateral treaties while on the one hand it raises a presumption of the existence of a customary right of transit on the other it indicates the dependence of the right on agreement
The most recent 1965 Convention on Transit Trade of Land Locked States to which both Nepal and India are signatories while providing for freedom of transit for the passage of goods between the land locked state and the sea across the territory of a transit state emphasize the need for agreement between the land locked country and the transit country
The bilateral Treaty of Trade and Treaty of Transit entered into between India and Nepal in order to expand trade between the two countries in practice mean a guarantee to Nepal to permit free and unhampered flow of goods needed by Nepal from India and a guarantee of freedom of transit for goods originating from outside India across the territory of India to reach Nepal
But the Convention on Transit Trade of Land locked States and the Treaties between the two countries leave either country free to impose necessary restrictions for the purpose of protecting industrial 667 iterary or artistic property and preventing false marks false indications of origin or other methods of unfair competition in order to further other general conventions
It is clear that for this purpose it is not necessary that the land locked country should be a party to the general conventions along with the transit country
The interpretation placed by John HB Fried in the Indian Journal of international law that the provisions of the 1965 Convention permit the States of transit to enforce say a Copyright or trade mark convention even if for example neither the country of origin nor of destination is party to it appears to be a correct interpretation
675 B H An artistic literary or musical work is the brain child of its author the fruit of his labour and so considered to be his property
So highly is it prized by all civilised nations that it is thought worthy of protection by national laws and international Conventions relating to Copyright
The International Convention for the protection of literary or artistic works first signed at Berne on 9th September 1886 and finally revised at Paris in 1971 provided for protection to the authors of literary and artistic works
The Universal Copyright Convention first signed at Geneva on 6th September 1952 and revised in Paris in 1971 requires the contracting states to provide for the adequate and effective protection of the rights of authors and other copyright proprietors in literary scientific and artistic works including writings musical dramatic and cinematograph works and paintings engraving and sculpture
684 G H On question No iv The word import  is not defined in the though it is defined in the Customs Act
But the same word may mean different things in different enactments and in different contexts
It may even mean different things at different places in the same statute
It all depends on the sense of the provision where it occurs
Reference to dictionaries is hardly of any avail particularly in the case of words of ordinary parlance with a variety of well know meanings
Such word take colour from the context
Appeal to the Latin root won t help
The appeal must be to the sense of the statute
689 C D The submission that where goods are brought into the country not for commerce but for onward transmission to another country there can in law be no importation is not acceptable
In the first place the language of section 53 does not justify reading the words imported for commerce  for the words imported Nor is there any reason to assume that such was the object of the legislature
While interpreting the wordsimport  in the  one must take note that while the positive requirement of the Copyright Conventions is to protect copyright negatively 668 also the Transit Trade Convention and the bilateral Treaty make exceptions enabling the tranait state to take measure to protect Copyright
If this much is borne in mind it becomes clear that the word import  in section 53 of the cannot bear the narrow interpretation sought to be placed upon it to limit it to import for commerce
It must be interpreted in a sense which will fit the into the setting of the International Conventions
690 B E The word import  in seces
51 and 53 of the means bringing into India from outside India  that it is not limited to importation for commerce only but includes importation for transit across the country
This interpretation far from being inconsistent with any principle of International Law is entirely in accord with International Conventions and the Treaties between India and Nepal691 H 692A The High Court thought that goods may be said to be imported into the country only if there is an incorporation or mixing up of the goods imported with the mass of the property in the local area
In other words the High Court relied on the Original Package Doctrine  as enunciated by Chief Justice Marshall in Brown vs State of Maryland Reliance was placed by the High Court upon the decision of this Court in the Central India Spinning and Weaving  Manufacturing Co Ltd The Empress Mills Nagpur vs The Municipal Committee Wardha  That was a case which arose under the CP and Berar Municipalities Act and the question was whether the power to impose a terminal tax goods or animals imported into or exported from the limits of a municipality included the right to levy tax on goods which were neither loaded or unloaded at Wardha but were merely carried across through the municipal area 
We are afraid the case is really not of any guidance to us since in the context of a terminal tax  the words imported and exported  could be construed in no other manner than was done by the Court
We must however say that the original package doctrine  on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras vs Boddu Paidanna  and again by the Supreme Court in the State of Bombay vs FN Balsara  690 G H 691 A E An order made under section 53 of the is quasi judicial
The Registrar is not bound to make an order under section 53 of the so soon as an application is presented to him by the owner of the Copyright
He has naturally to consider the context of the mischief sought to be prevented
He must consider whether the copies would infringe the Copyright if the copies were made in India
He must consider whether the applicant owns the copyright or the duly authorised agent of the Copyright
He must hear those claiming to be affected if an order is made and consider any contention that may be put forward as an excuse for the import
He may consider any other relevant circumstance
Since all legitimate defences are upon and the enquiry is quasi judicial no one can seriously complain
692 E G 669