. ,

'GRAMOPHONE coMPANY OF IN~IA LTD.

:,.

-J v.

B!R.ENDRA BAHADUR PANDEY & . ORS.

Ftbraury 21 ,' '1984

. ' } . [0. CHINMAPPA REDDY, E.S. YENKATARAMIAH A..'ID R.B.MISRA, JJ.j ' . '

Cl1pJ'rltht Act, 1955-J.O, 51 11rrd SJ-w11rd 'import'-maninz of. Char"-

tr oferdtr uruhr s. 53-quasi-judicial,

. JntD1tt1tlona/ La,.._WMtlJU bet:oms part of municipal law without aid of

mipa} ltD!ui~Whtt!Je~ OoemQt mwt/cipa~ {uw /fl COIC of cl!/ffct.

/ltter~atlona{ Law-Rule rttardill¥ ri¥1tl of land: locked states of innoctnl I''"Ml¥' of too<h acr; ss a'fiOthtr state.

l'ractice-Couru nu., t lnterprtt Mtlona/ law in a way io as '" a•oid con /rolltallDn Willr lntvnatlo1111l low.

. lnterprttatk,,._p, u[e of-While lltrpretlnt ""'rds tJf•rcfinarypar{artt:l ufi rnrct 111 dlctlonar/n of 110 tZYI/, • • •

lly trea;~ and by inlematiooal convcntibn. lndia allo;,., s transit fac!liti~ to Nepal, ha lltlJ.'lbour and a land-locked country.

A companY bouc:d 111

K3thnandu

N~"'1 ned . • t•- froiD . ' : .- •mPO a consramuent of pro-recor.Jcd cassc ''" S•apporo whidt ..,.._ waitin; itt despatch to Nepal at Calcutta Port. IU tbo

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I. 'oRAMOPHONE ell). v. B. B: P.ANDI5Y 665 ,.

~ apellant crupany suspected those cassettes. toJbe unauthorised' rep, roduction' of

its rords' and • cassettes, 'the import of which ipJo India :was , Prohibited, tlte

appe!)ant-c_ompal, lY nro"9ed. the Ragistrar 4>f Copyrights for actionunder s.53 of the cOpyright Act; 1957 which enables the. Rgistrar, after. lil.aking such en~

quaries .as he deeme.4 fit, to order that copies made ' out of india of a work .whk.h if made in india .would infringe copyright, shall .110t be importe<l. A.s the Registrar~ did. not take expenditius action,• the ippella, nt:compapy moved the High

Court by a writ petition. A single Jr; dge made an interim , oJder permitting the appeliant-company. -to inspect the consignmet nd if any of the cassettes were 1 found to have infiinged. the appellarH's copyhght, 1hey were to be kept apart

until further oders of the Registrar. The . Registrar ·.was directed to deal with

the application of the appe]lantcompany. in ACCOrdnce.with)a:.... The s:onsi'gnee preferred an appeal against this odef of ftbe single Judge .. A' Division)3ench of •. the High Court allowed the appeal and dismissed the, writ petition of the appellant cpmpimy.

The Division Bench heid, that there was no i¢prtation whenthe goods entered. India tJn route to Nepal. - 'The Divisic;>D Bench was of the view; th&t the , word 'import' did not merely tneart bringing thd, goods into India, but com- .. prehended something more,' that 'is, "incorportiog and. mixing, or 'mixing up of. the goods imported with the rilass of the property in tb~· local area". The . company obtained special leave' to appeal. The questions which arose were : .

_(i) whther international law . is, of, its own force, drawn ifito 'the law .of the land without the aid of a municipal-statute, '(ii) whether, so drawn, it oerrid~ municipal Jaw in case of conflict~ (iii). whether there is any weli estabiished rule' · of :internat'ioiral law on the question of the right of-land-locked stat01 to inno ·

'~t . passage f the goods across. 'til~;'.oil or another state; and' (iv). ;, bat js

the meaning of the,\\ ord 'ipoll' usco_ in s53 of the Copyright Act.

'lo..o~~. ' • • • :-~ ' • i ~

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.. I., Allowing. the ap{>eal,

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HELD: ...

- . . ;:: On qutstions (i); & (ii)"!

~ .. . . . . . ..,...,...,,.:-;.;;: :rhere'can be np question that rlations must march with c (~ational - :

mrnunity an'd the municipal law must respect ruloa of .. international law oven ac •.. nations respect international pinion .. The mity of' nations requires that rules of international law may be accommodated in , the mumcipal law even without expt~ legislative ·.sanction provided tl)ey d~ no_t run into copfiict with Acts of Parliament. But when they do run into such conffict~ the sovereignty and the . integrit-Y. of the republic 11nd the Sl!peacy -ftho c<institut~ legislatures in

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6&6 SUPRI!MB COUltT REPORTS [ 1984) 2 tc.-.

making the lawS:=Y oot , be subjected to etern;1l rules except to the 1 ·. Jeeitimltely accepted by the consituted legislatures themselves. The d lttt . . th .. th hI f ' OClnllCof incof110r&t; on also rccoen•ses e post !too at t e rues o tntero:luonal ..

incorpora~ into nation:ll law and considered to be part of th~ rutionallllrt unltss thty art in conflict witlt on A.C'I of Por/iomttrl .• Comity of cations or "· rounicipal law l!IUSt prevail in case or conflict.

Nation~! courts canr.ot sa no. • • • • 1 r · '

Y ''" if Parliament bas satd no to a pnnctp c o tnlemauonal law. National conn, will endorse international taw but nt if it conflicts will national 1~. l'atioll.ll courts being organ.~ of the national state rnd not ons of intenutioll>) I•• must rforcc apply national law if international law. conflicts with it. But lite: courts are under an oblia; atlon within leeitimatc limits. to so interpret the llllmicipal statute as to avoid; confron!:-..tion with the cqmity of nations or lhc: ,..0 established principle• of iuternation:11 law. But if conflict is inevilable. the ltttu must yield. [67l EH) ·

• Ptr Lora Da"''Utt AIR {n Tr.nduxt Traditt¥ Corpt. v. Ctl!tral BaM, [1977) I All I!.R. 881; Wm Rand C'tntrnl Gold !1/iJt{ng Co . ._, The b(, [19051 21CB J9/; L/JIIttrpacht in /ntutionaf /..JIW (CetU:-; al Works); uuham CJ

111 PoUtks.v. Th• Comme;,•'talth 70 Comrnonw03ltjl l; w ReporLS 60; Trrxrmr>- upon, Mascow . v. M!1. Tarapo" 4c Compur1y a11d A11r, (1970) 3 SCR. S3ctfcc rod to.

On fUtJIIotl (Iii).

As .the leJoin& authomies on intccnation:.l JAw c.; prci!Cd di, clg<!DI vit•l on the quest ton cif the tr.>rwt ri~:hts of land-locked counlric:l. tbo rC$ult, has bel:ll that~ lan.!-lockcd.countrie. have (o , c]y oh bilateral, rcaoin.1l or multi-lattW •&roententa for tbc rctXliUIU"on or tbc:ir rtgh!:i •. The very e.U>tcnce of innUitl<rilblc biateral tre.ties. Yobilc 00 tho ooc band it raises a pruruptioq or the ·ilt~ of a custoMAry rit of tnnsit, on tbc otbor it indicates the dependon~ of ri&hl on aaroement. 1bc most recent I96S ConvrJ)UtJD on Tran.iit Ttsde . 0

' • d ' ~....... . . . bile provt.l- n -""""""' Statco, to .. -b•ch both Nepal and India arc !lgnato~1, ~'< oct•..!

10~ for fr~e.Jom of traJWt for the pa•, suec of &?<JtiS between t_ho (an~ (, S state and tho sea, a.:ro.t the terti tory of a transit state c.mphasae the . •areement bc.twccn the land-locked country and the tr.IDsit c:<Juntry. The b•~.t T r nJ l"e1- 111 re&ty o Trade anJ Tn::aty of Transit entered Into bo:tween lmha • 1~ ord 1 d •uartotco •r 0 upan traJc between the two countries in rn~~:ticc mean 1 • tp.!it Nepal to Permit froo lnd unlumpcrcd flow of gooJs .ed bY tolcp:ll fro)llt todi' alld 1 auaranec or froedorn of transit) for goods originatina from ou~·~ 1'rtdf aero~ thcl territory or India to reach Nepal. But tbc Comcntion on. Tr:uutl .;~'let or Ut!d-lotL-d <' ·- lt:a\'0 V . "" "tltet and the Treaties tJ.:t"een the two tuuntn.-• . d ~.r, f . ,. ~~'"'"' C<>ufttry r• to j-~ -ary rtrictions ror tho pufl)OM of protcctJOI

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GllAMO~HONE co. v. JI.B : PANDEY. 667

. \. iterary or artistic' property and preventing false marks, fats~. indications: of origin'- .

_or other methods of unfair competiti'on in order to :, further other gel_lera:t conven- ·

tions . . It is clear that for this purpose, it is not necessary that t, he land-lockd country should . ~- a party .to the general conver; ions --along with 'the trait country. The interpretation placed . by John H.B. 'Fried in the Indian Joumal of international law that ihe provisions .-of the 1965Conventibn)ermit the •. States of transit to enfoce, say a Copyright or trade'.'mark convention even if, for xample, neither the country of origin no; of destination is '~)arty to it appears to be (correct .

' ., . . . . . , . . _interpretation. [67S B-H)

...

An artitic, . literary or musical worlcj is the brain-chilq' .of its athor, Uie.

fn~< of his labour, ?.nd so, considered to bC' his prot)erty. So highly is"it prEled by .

o ' ' ' o • ' I { all civilised nation; that it is thought, worthy 'of protection by national laws and international Conventions relating to Copyright. The International <:; onvention .for . 'the protection of literary or artistic works first signed afBenic on: 9t~ ~Septem:ber, . . . . -- • .. ' t 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

Genea on 6th Septcmber 1952 and revised in Paris iiiH7.1 requires th~ eontracting st; Hes to provi4c for .the adequate and cff(l\:tive Protection of the rights of· authors and other oopyright Proprietors in leterary, scientific and artistic 'works

including writings., musical, dramatic a!ld cinematograph works arid_paintinss Clll raving and.sulpture. ['84 G:H] . /.. . .

I • 4:-On IJIIestn N•. (iv) ·

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. " . . •. . . ; . . . ' ' . . ' , · the word 'import' is not defined iii. the' Copyright Act'thoughit is defined

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in the. Customs Ac( But the same \Vordmay . mean .different things in different .. enactments and in different conteX\S: Jt may eyen mean different things at different •· . places m the_samcstatute. It'ati depends on the sense of the provision'•where it occurs. \ {? Reference to dictionaries is hudly of any avail particularly in the case of words of .ordillilry1parJance with a variety of well-know meanings. Such.word. take colQUr .

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. from the context. Appealto the Latin root won't help. The ppealJLmust .be io lie

• " • • • r .. sensor the statute. [~89 fl ,. ·

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, Thesubmission tbatwhere!fga'ods are~ ( brougbt into the. coutry not for ._colllillerce; but for onward transmission to another country, there can; in law, be .no importation, is not acceptable. In the first.i>_lace, the language of s .. 53 'does not justifyreading the.words 'imported for commerce' for ttic words •imported; Nr ia

there any reason to assume that such was the ob.iect of tthe legislature: While-inter-. .!'

pre~~ tbc ords ' import' in he Copyright Act, oe must take [note that while fbe, A .PeStive requiremeilt a( the Copyright Converitions:is to pu)icct cop)ligl.t, .negatively .. . . .. . . '

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SUPREME COURT RBPORT~

[1984] 2 S.C.R.

also, the :rlhsit Tr~le 'Cnention and te bilateal Treaty make exceptis enabl- 'ing tho tranait atate to tak~ mea5ue to pr.otect Cyrigbt. If this much is bornein mind, it becoma clear that that thy word ·import'in s. -53 of th~ Copyright Act

cannot, bear the llatroW interpritatio'n llOUght to be p!ace<J upon it to limit it to import for commerce. It ml!Ut interpreted irf a senes which-will fit the Copyright Act into the setting of the Intcrn; ttional Con'(e,!]tions. [690 B-E]

'. • • • • • •• < • '.

The word •import' in sce&. 51 and(.53 of the Copyright Act mea)'ls br.g ing into India.from ouMidt India', that it is not limited to importation for com-· tllefCe only: but includes importation for transitacros the eountry. This interpretation, far from beillli inconsistent with any principle of _InternationPI Law, i, s entitely in accord with International Conventions and the Treati~ between India and Nepal.[,91 H, 692A),

Tb.c' Hiah Court 'thOught that goods may be said to be Imported i_nt0 • the country o?ly if there is an ineorPoration. or mixing up of tht good~ imported with the mas~ of. the ProPerty in the local area. ln othe~ words the ll!gh Court

reli~ on the Oriaillt\1 Package n.octrine' as enunciated by Chief Justice Marshall in Browll ~; St~1e o.( Maryland 6 L, Ed. 78. Reliance was placed by the , High

Court upon the decision of this Court in the Central. india Spinni11g and Weaving

&;. Mam(facturinz Co. -J, td.

The :Empr; I!!S Mills, Nagpur v.

THe Municlpol C<Jmmitte,, Wardha [1958] SCR 1.102~ That was a C6Se which arose under .the C.P. and B~:rar MunicipaHtie!!. Act and the question was whether the Pc!wcr to

impoe '"a terminal tax. goods .or animals importid into or exported from the limit• of a 'munlcipaljty'; included -tho right to levy tax on goods .which 'were". n•ither, loaded or unloaded 'at Wardha but were mereiy carried .across throunh toe .

unicipal area'. We are afraid the case is really not of any guidance to us. sin'ce ·.

~ .. ' . . 0 in the context of a 'termin!ll t&x:' the , word,<~ 'imported and-exported' could be construed in no other manner than was done by, the Court. We must hower

._ say that the 'origi'tlal PaCkge doctrine' on !Vhieh reliance was placed wa! exprcs- ;

ly. disapproved tirat by tbi Federal. Court in the Province of Madra! v. Boddu

Paida1111a : [1942] FCR 90 and again by the Suprcme.Couit m Stat~ of Bombay _v-~ 1

P.N. Ba!Mlra, [1951] SCR 6112 .. [693 G-H, 691 A-Bl

AQ 'order made under s. 53 of the Copyright 'Act is quasi-judicia[ .. The Registrar is not boun4 to make an order under s: 53 of the Copyright Act so soon as an appJfcatr0 n ia presimted to him bY the owner of the Copyright. Ho has

narally to consider the context of the n1ischief sought to be prevented. He must consider whether the _cepios would infringe tho Copyright if the copies were made ia India. He must. consider whether the app_licant owns the copyright _or the . duly authorised Agent of the Copyright. He must hear those claiming to be ·

affected if an ordor .]s made atnd - conider any contention that may be put forward'

aa 'an excuie for the lmport. He maY cooider any oth.er rdevant circumstance. Since all legitimate defence's are upen and the~ enquiry is quasi-judici.al, :no one can s&riottsly 80J!tplain. [692'1'!-01

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llf • ' • • • • •• 'GRAMOPHONil co. v. B. it P.4.NDEY. ( Chinnappa' ReddY, J.) 66~ . . . . . - - ' . . . . . -{, . . \ . . CI; viL~APPELLATB JmusorcriON: Civil Appeal Nos. 3216·3218 of A 198,3.'

.. Appeals by peci3:l ea~ from the Judgment ·md Ordet date.d the lOth February, 1983 of the Calcutta, High Court in €)ri-ginal rder ...•. B

bs. 374-376 .of 19S2:

Soli J. SorabJee, Harish N. Salve, Sudip; o.Sarkr & D.N. Gupta, _.;..r- . for the Appel, Ir~.t. · ·

. '" •

fsnti Bhtuhan, S.K. Roy Chodhur!Y and"il.S. Parihar for Respondent No. ) in CA._ 32i6 of ~983.. •. '

. " - . , B. Gupta, 's.K. Roy Chowdhary and H.S. Pdrihar for R.ep9n.· dent No; 1. -in cA. 3217·18 -of 1983. ' . . /' I

. . .P.A. Francis, :i.N. PoiJar for te Respnde:k

, f .

I(, Prasaran,; Attorney General, Gop'a/ Subrarnaniaf'IJ nd e. v ..

J..i;;::__J Subba J?.ao in response to notice. . .· 4

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_ 'G.S. Sanghi,. Shankar Mitra and P. Sinha for Intervener-:-

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Oceank Shippig Agency'(P.) Lt, d.. . /

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""· •. "' The 1u9.gment 'or the Cou; t was, delivered by '

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CHINNAPPA Reooy, 1. Nepal is our neighbor. Unfortunately •. ·Nepal is land-locked. Nepal's only access: to the ea is 'across ndia. So, as one good neighbour to another with a view to 'malntain, develop and strengthe~- the frendly relatins ;_between • our two· countries, , by . . treaty and by Internaional Convention,' we. allow a right of iruicent passage , in ordr to facilitate Npal'~. intcrn.ational tr;_e.de. One of the . . . . - questions before us iii teextent of this right :Does the right 'covr the

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670 tfPRiiMll COUU RBPORT~ [19~4} :G s.C.R.

'ta:nsit of oods which may _not be imported into 'India? May good~

whichmay not be brought-intoJndia be taken across Indian territory? . What does "import'' mean, more particu~rly what does "import"

mean in Sec. 53 of the Copyright Ad? Can an unauthorised reprccl.uc•

tion of a lit::rary, dramatic, musical or artistic work or n record eJ)1 bodying an nauthorised recording of a record (which, for short, dopt ing trade parlance, we may call' a pirated work), whcse irr.pcrtafion into India may be prohibited, but .whose importation into Nepal :is not prohibited, be taken across India~ territory to Nepal? These are some o( the questions which arise fM comideration in this appeal. . . ,.. .

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The questions. have arisen this way: The appellant, the Gramo- . ' ' . . phone Company of.. India Limited, is (j. wcll-knowri manufactrer of musical records and cassetts. By agrecmell.t with the -performing artistes to whom royalitics are paid, the appellant company 'is the pwner of _the 'Cqpy right in. such recordings. The appellant received

nformation from the Custom. Authnritie.s at Calcuttath at a consign- .. t ' . . ~-"" ment bf prerecorded cassettes sent by Universal Ovrseas Private Ltd. SingaP,.ore to M/s. Sungawa Enterorises, Kathmandu, ~Nepa~, had. arrived at'Calcutta Port by ship and was awaitingct.espatch to Nepal.

The appellat Iea.Jnt that a substantial number of~assettes wre 'pira-j ted works-', this fact having come to light through the bjoken condition of the consignment which' was lying in the Calcutta docks. Basing upon the information receiv.ed, the appellant sought the intervention of theRegistra: of Coy.rights for action undr Sec. 53 o, f the Cpyright __;.;.., Act, 1957. Tl11S ptoVJSlon enables .the Regtstrar1 after makmg such . enquiries as he deems fit, to order t'hat copies made m1t of India of a work which if made in India would in.fringe copy right, shall not .be imported. The provision also enables the Registrar to enteli any 'shipr., docJ< or.pren?.iseswhere 'such copies may be found. and to examine suc~1, oopies. All copies in respect of which an order is made prohibiting I, their import arc deemed to be goods the import of which. is prohibited

or restricted uner Sec. 11 o.f the Customs Act, 1962. n, e prcvis.icn~ . : . of the Custom Act, are to have.effcct in respect of these copies. 'All

copies confiscated under the provisi<>ES of the said Act are not to vest in the Government, but to be delie'r<'d to the owner of the copy right in the work. As the Registrar was net taking exyrditious action on the . . application of the appellant and as it was apprehenr.ed th~.t the pirated cassettes woul<!. be releaseJ. fer tr~.nq:Crtaticn t~ Nep, pl, the appellant filed a writ app1ication in the Calcutta High Court seeki'ng a writ in 'the nature :of andamus to compel e Rrgi&tar:::r to p..ss rn. appropriate crder under Sec. 53 of the Copyrit Act 1wd to prevent releae

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GRAMOPHONil CO. V. B.B. _PAND!JY ,(Chinnappa ReddyJ.). ~71

of t1.e c:1ssettes fr0m the custody of the customs authorities. . . . . .

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The learned single judge. of the Calcutt, a High Court, on the request of the appellant, issued a Rule Nis~ and made ai1 interim order permitt- 1ing the appeUant to inspect the consignmept of casscttei>"and if any"of

the cassettes' we_re thought tb infringe the appellants copyr'igb( they . wereto be kept apart:ntil further orders oft}lc Regstrar. After causing the necessary'inspectionto bemade, the Registrar was directed to deal 'with the application under Sec. 53 of the Copyright Act in accordance

.~~ -· with lawafter heating interest_ed p:Uties. The :Registrar was di, rected ·. to deal with the :'1-Pplicationwithin eight weks from tlie date o'f the ---¥ ...... High Curt; s br9-ec: In the _event of any of th~ cassettes held back by the appellant being found not to infinge any provision of the Copyright Act,, he appellant was to pay damages as assessed by. the GOurt. '.

Against the learp.ed s1ng1c Judge's order, the. consignee preferm1 a_n I appeal und'er daus'e. 15 of the Letter!' Patent. A Diision Bnch of. the C:tlcuttaJiigh Court held that the word 'import' did not merely mean.

bringing he' g')ods intq' India, .but~mprehendea something ffioe, that is; "in'; orporting and mixing, or mixing up of the goods imported with the' m1SS of the property in the local area". /The learned judges t]:lought·, . it wo:u!d b':l wrong to say that there .Was importation 'into India, the v moentthe goods crossed the lniJ.ian customs barrieL Keeping in view ·

. the . t; eaties with. Nepa11 . th~ Divisin. Bench took the view-that

~· .,... . there was no importation when -the go_ocl.s entered India en _ .. , route to-Nepal: The appeal was, thetefore;. a!Jowed and the . writ ; petition filed by the. present appellant was dismissed . .:.And so, the

--writ petitionr , in the High Court has appealed to us ' Ulder' 136 of the

 Con5titution.

First, we shaltl'!am{ne if.thereis-any_mtida.te ofinternati~al

: <

I~ w or if the ruk's of international law afford us any guidance and if F such mandate or guidance is preceptive under indian law. Two questions arise: first, whethcrinternationallaw 1s, of, its, own (oice, drawn . ito the la'w of, th~ land without the aid of a muniipal statute and, . second, whethe.r ,'so dra \v, n, it overrides' municipal Ia win case of onfiict.

lt'has been said in England that there are two schools of thought,. one . school o'f thought propounding the doctrine of--incorporation 1,\nd the

G.· Other, the doctrine cf transformation.(] J AccordiriS to the one rules of inten1ational law are icorpm-1-ted into the' law of fue land. auto.-.

ticnJly and .conside'red -to be part of the law of the land unless in ·. ' . ' . .. . . . . ' ' . . .

----TO- •••• • • . (1) Per Lord . Danning MR i11 Trtrtdltxt 1)ading Corpn, v: Central' Bank •

• [1-977(1) All ~.R. 881] .

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SUPREMI COURT REPORTS . [1984] 2 s; c.R.

~- . conflict with an Act of Parliamnt. According to the other, rules of International law are not :part .of the law of the land, unless already so by an Act ofParlia!lJ.ent, judicial decision or long established custom.

According to the one whenever the rules.of international law changed,

tey would result in a change ofihe law of the land ·.along ith them, 'without the aid of an At:t of Parliament'. According to the other, no • su; h change would occur unless those principles are 'accepted and adopted by the dmestic law'. Lord Danning who had once accepted the transformation doctrine without qucs_ti'on, late~ veered round to express a preference for the doctrine of incorporation nnd_ explained how courts were justified in applying -modern rules of international law when old rules of international law changed. rn fact, the' doctrine of incorporation, it app'ears, was accepted in England long before . Lord Danning did s<-1. Lord .Darwing himsef referred to some old cases. Apart from those, we may refer to West Rand Central GfJld

Mining Co. v. The King<11 where the court said:

. :"It is quite rue that whatever has received the common cons"<.nt of civilized nr.tions must have received the assent of . our countr~~~ and that to which we have assented alo.ng wth other .11ations in gene,.a'l may proper]~;. be C'tllcd international Ia w, and as such wm 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". · 1' ~-

Lauterpacht in International Law (Generl Works) refers to the position in Grmany, France, Belgium and Switzerland and says . it is the same. He quotes what a German Court said to met anargum.ent that the role of customary international law conflicted wi1hArt.24 of the German Code f Civil Procedure. The court had said, "The legislature of the German ReiCh did not and could not intend any

iolatioli of generally recognisc:-d niles ofi nternational law, when enacting Art. 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 nlY in so far as jt has be.en adopted by German Customary Iaw, lacks foundation in law. Such a legal maxim would, more-

(2) [1905 8 KB. 391

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l.' , ..

. . \ . . . GRAMOPHONE Co.v. B.B. PANDEY (ChinnappaReddy, J.) 613 '

- over, if generally applied,· lead to th~ untenable .re'ult that.in the'in: . ....; tercourse of nations' with one. another; there would obtain not a uni- \ form system__:_internationii la~-bu't a series of more r less diverse municipal laws";"" Lauterpacht sum.ariss the

1position, this way!..:_ ' . .

. . "While it is clear that interational law may and d'oes ac't dlrectly)within the St.ate, it is equally clear that as a rulethat . .,:...... ) . . direct operation qf inter'aiinal Jaw is within the State subjeci

to the qverridirig authorityof municipal law. cours. must pply .. __x-... statutes even if they conflic't witli international law. The supre- ' . mileY>: of interriatio'naliaw, lasts, pro foro infeni?,. only so loilg . as the State does not expressly and' uriequivcally. derogate from

 it. When it thus prescribe~ a_ departure from iqternationallaw, . . C~ventiomtl or .cntomary, ; j~ges ae Confronted , with-~· con-

. :thct of international law and municipal law and; being <;>rgans

appointed by the State~ thy are compelled to apply the later" ..

. '

\ l . . . There can be no qestion that. ations ·ust a-rh . with; the

- international cominnity nd the Municipal law mus't respect rules of ' Intenational law even as nations respect intern~ tiona! opiiuon. Tl; te; . comity o( Natins requires that Rles or:'Ititerriational law 'may be

- ::. ·" i-:

. A

. '- 'ti B .

.. " t". accommodated in 'te Muicipal Law. eve_n without.express tegislatve

: : action provided thy do no't run into' ctifiiet with Acts of Parliament .. _ , -..1Pt when 'they do run into such qnflict, the sovereignty and the inte- ' _._ r

.__ --trity of he Republic and thesupr€l:macy of the. constitut¢d lt; gislatures

in making the' laws. may 'not be subjected1t6 exter!J.alrules except to the

extent legitimately accepted by the constituted .legislatures themselves .. '

The doctrine of incorporation also recognises the position that the .. _,. rules of internationallaw re incorporated into natiQnal Jaw and con~ .

F . sidered to be part ofthe .national law, unless . theyar~ in covflictwith ; --' ... an At of Pqliamnt; _Comity , ofNat.ions pr no, MunicipaLLaw must . . . , . preva1I in case t)f conflict. National Courts cannot say yes if Parlia- . ·

ment has said no to a principle of internatio.nallaw. National <.:; ourts ·

will endorse internationaflaw but not if it conflicts with national law~ .

Naio11al courts beig organs of. the ationl. State 'and_nqt ogans

G ·. of mternationallaw must perforce apply .national law if.internawnal 'Ia.. law confiicts~'with iL But the Corts ate under an obligation within 'legitimate limits, to so interpret' the Municipal ' Statute 'as to' avoi4o

confrontation with the comity of Nations or the weil established prin- ' cipll!s of Internatiohal Ia w. But. if conflict is inevitable; thelatter IPU&t

yi~Id. .. .

J. . • . .

._' ,' ·-.. ' ...

. •·

.,.

~-..

. -.fl '

_..

674 SUPJlEMI COU!tT ~RI3P01l"J;'S

( . [1984] 2 s.c.R.

~-.

Tl1e proposition has ben well sta:ted by Latham CJ in Politics r.

The Cominonwealt!z111 : ~

"Every statute is to be interpreted imd applied, as far' 'as its language admits, as not to' -be inconsistent with the comity of nations or with the established rules. of international Jaw .... : .... ·

It mus! be her4 that lcgislatin othqrwlse within the power of ' the Commonwealth Parliament does not -become invalid because _..,_. tit conflicts with a rule of international law, thdgh every effort

. should be made to construe Commonwealth. statute~ so as avoid breaches of international law and -of inteinational comity.· . . . The question. therefore, is not a question of the power of the Commonwealth Parliament to legislate in t>nach of international law, but is a question whether in fact it h:>s done w".

. I • I I

The Supreme Court of fndia has sid practicaHy the same thing tFf ' t2) in Hnetorotxport, Mascowv. M/s Taraprrre & Company and Anr.

"Now; q.s stated in Halsboury's La.ws of England, Vol .. 36,

page 414, there is a presumption that Parliament does not .assert j • or assume jurisdiction which goes beyond the limits esablishcd by the .¥ommon consent of nations <Jnd statutes are to be _inter:-j., pteted provided, that their language permits. so as not to ~_,__ . inconsistent with th6 .comity of nations cr with the establishd

principles -of internaticnal law .. But this principle applies only where there is an ambiguity 'tn~ must .give way before a clearly ·.expressed intenti0n. Jf statutory enactments are ckc.r _in mean-

~-· . ing, they must be constrnrd according to their meaning _'even

tliough they are contrary .to the comity ()f nations or international

law''.

. .. ; The observations show that' the co11rt was only concerned with . : • f fj 'a principle of i-nterpretation, but, by, impliCation, it may be poss.ible

to say that the court preferred the doctrine of incorporation; otherwise ·, A_ the:--question of interpretation WO\lld not truly asise. Wlu!t has been ' . '( '

(1) 70 Commonwealth Law Reports 60.

(2) [1970] 3 SCli ?3. ' (.

. i

, :-t.. sai_d i 11 th~ rractoroexport case is entirely consistent :with what we hac.

• 1 satd earher./ · . · · · - . \ . . . •

 rs th.'!re . .any weH estabhshed principle of international law on the Jque_stio)l of the. right f land--locked states to innocentr p..ssage of :

'pods acmss the soil ; of aJlOthe~ State?. Tt appears that "the leading ·.~ authorities on international law have expressed divergent. :views on the· .

J- -..... ;.,... qu'!Stion of. th~ transit rights/ of !and~---locked countries, While one gro, up'of writers,_ such as, SibeJ:t, Scel!e and othet'i? have held the view..- . ··..tl:r; f1 ths~ co\.t.ntri.es i11ve my inherent righi of transit across Jieighbvu.r- _ -, Jg couatries; other equally emitl<;:nt -authorities, s'uch as. Me Nair

A I

,, .

. a11:d Hyde have held tl1e. view tat these .rights are not principles reo-

-C,

. f -. g'lisd by. intrnational 'law, but arrangements made by sovereign -

Stat~~" .. nJ Tile ro:su1t of the lck ofunanimity has been thaphe .land;--· .-,. , lockd contrie~ have to rely on bilateraL regional or multi.....J.[ateral ... -~ . . ' agr 5m~.ltS for the r.cagnition <?f .their. rights. The' very: existence . of innmerable bilateral treaties, while on the one. Iiand it raises a / "'

• • j • • • •

pr.sLi.mptiotl of the existenc~ of a. customary right of transit, c~ the~ r D . othr it!indicak~ the dpend~nce of the right on agreement. The discol; tentin-g situatio11 led to attempts by nations to codify the .rules reh\t- ing to• tral).sit trade.' Th.e earliest attempt was the Conventioh qn th}

Freedom of Transit known generally s the .Brcelona Ccmventioh. .. _.,.,.. .

The .second attemptwas the Conven, tion on tl1c High Sease, I 9:58: The' JUostrecep.t in the 1965 C6NVENTION.ON TRANSlT TRADE OF £ANn-:.-LOCKED STATES, As this ist11e latest ConveJ!ticn on the. ·. subJect and as both f1idia and: Nepal have signed -the Cqnvc, ntion, it may be useful to refer to it in som, e <, ietai'l. The ConventioJl was the

r~5ult of a Resolution Qf the United Nations General Assembly 'which, . "recoinisiug the need of land-lo£ked countries for'a:dequate transit -

.t . ..,. fayilities in promoting internationa]_trade", ipvitcd "the Governments

 F :of Member States togive t; ullrecognition to the needs of lund--locked . '' M ember'-States it~ the matter of transit trade. :.uid therefore; to aecorcl.

them adequte facilities in terms of'interuational hw .and practice in this t-'.':ga.rd, bearing in. mind the fut'Ui.-e• requirements resulting' from . the economic -deelop; neut or'.tlu~ laud-locked countries". Ariticle. 1 • ·

(a) of the Convention dfins te term '!ndlock.ed State~' as meatig 'auy Contracting state wJ:llch has , no sea-cast. The term. "traf!ic . -~_ .. _ _i_n_T_r_a_n;...s-it_"_i_s_d_e_fi_ri_ed_\_l_ke this: the passage of goods inludirig \mac • compariied b:'!l!'i'•Jl" -across the territory of a' Contractihg Stat< bet~''" ,

 (I) SeeR. Makil Transit' Riahts of Landlocked tountries :. Journal of WorJd ' Trade Law .. Vol. o4 .Pa~:e ?4.

' .

. . .

i . .

. ' -.

' 676 SUPREME COURT REPORTS. t .

[1984] 2 S.C; R.

f land be ked State and the sea when the pass.age is a portion o.f a . J,· complete journey which begitls or terminates Within the territory of

tt land-locked. State and which includes sea 'transport directly ' preceding or follow_ing such passage. The transhipment, warehouing, breaking b1,1lk, and change in the mode of transport of such goods as w.e\l as tb.e assembly, disassembly or reassembly of machinery r..nd bulky goods shall not rnder the passage of goods outside the definition .

l of ':traffice in transit" provided that. any such operation is undertaken ' sofe1y for the convenience of transportation. Nothing in this paragraph- >~-·-.. ' )hall b~ construed as imposing at! obligation on any Contracting State'. .

to est3.blish or permit the establishment o$ peirnanent facilities._, on-~~ territory for such assembly, disassembly or reassembly"; The term ''transit State" is ddined 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'. 'Artic1~ 2 ptescribes tb.at'freedorri of Vransit shall be granted under the terms of ..;.,... .. this Convention for traffic .in transit and means -of trahsport ..

Traffic in transit is to .be facilitated on routes in use mutually . acceptable for transit I to the Contracting States concerned.

d:;:::rimin1tio~ is to b~ exrcised based on the 'Place of origin

dparture, entry, exit or destinatiOn orany <; ircumstances relating to the owership of the goods or' the ownership, place of registration or fiag of yssel~, lnd vhicles or other nieans of transport used. Art. 3 ~- " provides for exempton of Traffic in Transit from customs duties or . import or exprt taxes or any speciai dues' in respect or' transit, within'

the transit Stte .. Art. 4 refers to means of transport and tariffs. AP;. sJ refers to methods and dorumentaion in regard to customs. trano; port, ect. Art. 6 refers to storage ?f goodS in transit. Art. 7 refers to dlays or difficulties in 'traffic ih trl:'..nsit. Art. 8 refers to free zones.or other '

:~ customs facilities. Art. 9 refers t~ provision of greater facilities. All' ¥"' _

that we need mention about Articles 4 to 9 is that details have neces-

~ sarily to be worked out by mutual agreement. Art. 10 refers to relation to most favourecl.:__nation clause. Art. 11 refers f9 'exceptionns to Convention' or grounds cf pubtic health, securt,:, and protection. of intellectual propeH v: It is perhaps usefa( to extract the whole of Art 11.

• j • '

"Exceptions to Convention on grounds of pub.lic health, secW'ity, an& protection of intellectual property

J. No.- -Contacting State shall be bund by this' Convention to afford transit to persons whose admission into its terrlto:ty i11 forbiddea, . '

' .

~ l

-~ • 0

. '

' . . ..

. '

' ¥. - • '' H • • i ... .. ' .

, .. . ,.

• . . ., ...

. .. \ . . . l • . . ' . GRAMOPHONS.CO. V. B.B: -PANDEY (Chimuzppa Reddy, 1.) ·. '6~1

• • • ~- ••• .: - # ' or for good~ of a kind of , whiti the importatio, ri is prohibite~ either ... on grounds of public morals, publi'c health, or security or as a precution agairi.st.disass or animlS r. plan.ts :or against pest~. - .•

• l . /

. 2 .. Each Contracting State .s hal.l b~ entitlect -to take .. reasoqale , . · ... B precautions and measures to ensure that persons and goods,· parttcu Jarly goods which are the subjec't of a in.onopo]y; ·are really intransit, . and that the means of transpor't aie. really used for .the. passage of such- . goods, as 'wll as to prtect the' safety of the .route.s ' and means of com-·. . -~

 ... ;:

I' .. . ; ..

- munication. · · · .. .

• .- l , '. -l .. • ·=· .·.c .

 ( .

. ' ..

\ .

. / . . .

I ' . •

. 3 .. Nothing _iti this Convention shall affect the. measures which . a Gontracting state ntaY be called upon to take in pti.rsuance or'provi-.

siori.s in a , get:leral intern.ational convention, hether f . a word-wide

or regiomil character .. to which. it is a party, whether such convention .. . was already concluded .on .the a.ate of this Convention or is conclu~.e~. .

later, when such provisions relate: ' . '. . ...... .

.··.

(a) J to expot or import' or ransit .of particulAr kinds of articles

. such 'as. na.rcotlcs, or' ot\le~ dngerous. d.ii; gs,, or a'rins~ . ·?r~ ..

'E .

. .· , ) . . , ' ! • \ ·, . . / . .

._.U__.

(b) . to.· protection 'of {ndiJstria/, lirel'ary or artisti~ pt:operty, oi

protectio~ .of trade names; an'd i'ndications of . source or appellations of origri,._and .the suppression of rlnfair competi-

....

ti~ . .. . .. . . . . !

. I . . . .. o - • • •

4. Nothing in this Convention shall prevent any- ContractinJ; 'l . state from taking ~JlY action necessary for the protedlon of its essential

. . . security interests';: Art. '12 refers .t9 exceptions in case of . emergeny. ·

' Art. 13 refers to application ofthe. Cori.ventin in_time ofwar.'Art. 14 ..

{,~G refers to obligations under the Convention and rits. and dties of . United Nations Member.s .. Art. is, i'efers, to:reciprocity. Art. 16 refer's . . . to settlement of disputes. Art . .17 .refers to signature. Art. 18. refers to ... . "' .::ratification . . Art. 19 refers. to accession.. A~!· _20 _refers .to cntr; y in to . · ,,

 (force. Art. ~~ refers to revision. Art. 22 rtfers to .notifications by the .

 H

.Secrctary.:._oceral. And Art. -23 referi to a\ltltentic. texts. .. · ' . ,, . .. ·~~· ·, ;....

' .

' .l' . . ·~ '),, . \ .

, ." .

.I . . . ...

I .

I E

" G

L • ' I I lis thus seen that the Convention while' proviJ.inr; for freedom of transit for the pasa9e of goods between a landlocked State and . the sea, across tile territory of a transit .State emphasizes the need fer .. agreemnt betwell. the land-locked country and the transit country . and, more important for our present purposes, ; t -spe, cificcscertain exceptions. It is indeed remarkable that the Convention places traffic

(illicit) in incLli.trial, literary or artistic property on the, same footing

as traffic in narcotics, - d:1.ngen.us dmgs and afms. This .. opinicn of the . :Int':':rn'l.tin.al C9mmunity as revealed by the convention must tie borne

In my mind in our~ further consideration of the question. It \rna} be 1 ·.

I ' •. • interesting to notice her~ wb?..t John H.E: Pried, who. respresented the Government of Nepal as ne of the members of the delei.ation at the U.N. Conference which produced the Convention, has to sal about these exceptions. Ip an article which "he wrote in the Indian Toumal

of lntetnationallaw; l)c st1:d,: . .

~ "The test of a trcPi.ty are its exceptions. The proof of a · treaty puctding.is, when it cannot be eaten: Itis the old problem offi.njing a balance btwecn demands for saving clauses, and the o.rposite ~[aim that the very value of a treaty depends on its . reliability. For land locked States, conditions unrler whih their outlet t<;> the outsi9, e world may be curtailed can of course be

.\-- 1

cruciaL - -~·- •

The Con.venton . declares exceptions permissible for five rt; asons

J ·

(1) crtain wdl_:_specified reasons of public policy; (2) because of . overriding intrnational oblig3.tions; (3) emergency in the country of . transit; (4) in case of war: (5) protectionofitsessential security interests. . .. \ . . / . . , .. r

- . r . . ·. . . \ ' '

- A few words about each, in view of. theire extraordinary importance.

1. Exceptions for reasons of public policy. The State of transit may:-this . is permi, ss'ive; not . obligatory_:_proliibit transit of certain goods fqr the reason thaftheir import into its wn territry is prchitite< .. , namely (Art 11: Pll!"a I): · ·..., c.. ..

H .. ~

{a) grount.~ of public morals_:_ e.&., indecent literature; ,,,

, ..

/ . •/ . ; , . .

GRAMOPHONE CO. v. n.b. PANDEY (C/timw; pa Reddy, J.) 679

~ .. '.

(b)· on grounds of pblic v;~lth or public •, securi{, y; (t.g., con-

' . . / ' 1 taminated foon ?f improperlv_packed exploives); ·

.. '

(c) as precaution against ariima 1_ diseases plant diseases or pests._

. ·• . ' . ..

I Tills clause (dubbed at the Ccn.fe_rence as the "dirty' pictur~; s and rotten fish -clase") w:ill not :hampr international trade if properly

... ~-. applied. ·

:~ 2. The_ same can ptoar~. be sid of the ''measiues\.Vhich a

Contracting State .may be called u'po11 to take. ("poritetre mena a

prendre~· in the .qually authentic _'.French ve_rsion which is scveTtl

nic{es t@ss per_missiv<!) in obedience to certain international treaties' to which it is a -party, namely, treaty provisions. relating to

: . . , ' . .

(a) "export, imjJOrt or (i) transit of particular kjnd~ of articles. such as narcotics. or other dangero1Js drugs, or arm1i"- (As to arms .this would therefor~ o1ily be~011?-e operative if· , a wor1dwid~ or ngional -treaty prohibiting or_ restric; ting international arms trad~ existed).. I ' ' r ' "'- • •.

(b)

.L. . . -

"protectin 9! industrial, literary 9r artistic property, or protection of trade names", and. the like ~-

...

___ ; J.~

' ·.

.\.

.These provisions are ~; tewirthy because they permit ih'e ' Stat, es of transit t? enforce:. say a coyy-right or trade"mark COil~.

vention even f. for example, 'tieither the country of origin nqr of

istnation itS party to it ......... :: ....... :· ...... : ...... , .. , .... : ........... .

Far as tl1ese provision~ go,'.transit traffic must not be hampered for any oter reason o(public po1icy of _the State of transit. Ifthat Stat~ forbids importation of cer'tain luxury goons for :fi.nan- . . I .. cial reasons; or of certain textiles to protect it~ own spinning im!ustry, that is, economic reasons, or of shorhave radios for, political reasons..::_all such goods must still 'be prmitted to pass. through its territory.

I .

3 .. Qualified. Emer&eq ... .-........... .' ....... .. : ................ : ....... : >, ' • •

A ' --·

.'C

D.

'

' r I.

680 SUpREME. COURT ltBPORTS. [1984] 2 s.C:k.

4 .. War.: ......................... ...... : ..... :.: .............................. .

). .Protection of essential se~Jrity interests ....... : .. , ...•.. : ·

We may now take a look at the treaties with our neighbour Nepal and the P.rotoco1s. First,. the 'Treaty of Trade' which was contracted "in ()fder to epand trade between their respective territories and encoUrage collaboratio1 in economic devl.opment". Art. 2 1stipulates that the .contracting parties shall endeavour-to grant maximum facilit'ies and to undertake an necessary measures for the free and unha~- -.--

pered fl..ow of gopds, nee(ied by one country from the other, to and - from their respective territories. Art. J enjoins the contracting parties :to. accord unconditionally to eac'h other treatment no less • favourable . than that accorded to any third country with fespect t.o (a) customs duties and charges of any kind impo'scd on,.or in connection with im- . _porta.tion and exportation and-(b) import regulations including quantita1ive restricti9ns.· Art. 4 provides that the cntracting parties should, on a reciprocal basis,. exempt from basic customs 'duty as well as from .quantit.'ltive restrictions t'he import of such primary products 'as may be mutually agreed upon, from each other. Art. 8 casts. a 'duty

on the ntracting parties to cooperate effectively with ea.ch other t9 p.reve'nt !nfringement and circumvention of the laws, rul, p and regulations of either country in regard to the matters relating to . foreign yxchange and foreign trade. Art. 9 specially pr9vides that "Q.Otwithstanding "tile earlier provisions of the treaty either Contracting Pary 1ruiy maintain or introduce such restrictions as are necessary for the purpose of ' ·

F ·•

G ·,

(a) prOtecting pulic morals,

' .

'-.J

(b) Protectin& hlllll3.n, animal and plant life,

... ' (c) Safeprdhl.g national treasures,

(d) safeguarding the implementation of law~ reiating to the , iaport nd export of jOld and silver bullion, .· and , '

.\--

. ...J

. 7' __

·, ",\ .... ' ··:.r.·

.. -

'' . ----...

' -

:::\ ~· .. .... , ,~

'. ' ,,

: .. :- ... ~:.;_;.

• : > '•' ~- ,• • : . ..;;- -~ ' ¥_a.1 • \ ...... .- • + / •

'- ' > ~. '

. - ... " <' ' ' ,

I I ~, ! . ' .:

' "

(e) '' safeguarding such othecititere~; ts as may be mutlly agreed

 . upon. ., i

• Article (to)whiCh may be extracted in full is as follows: "Nothing in this Treaty shall prevent either COntractin~ Party from taking any ·" .measures which may be necessary.for the protection of its essential

scurity i'ntrdts or i~ pursuance. of general international convention~;

• whetr alfeady in ex:itence or cnclude4 hereafter, to which it is a . party relating tO. transit, xport or import of particular kinds' of articles· , . s'uch as opiu:n or other dangerous drugs or in. pursuance of-general

conventions inter.de1'to prevent ilifringement of industrial, litefa, ry or artistic.property or.relathig.to false marks, falseindicaticn1ofori, in- ' or other method!) of urifair conipetitionn. ' ' .

• 4 • • •

' ' ' ., ' ,' It ppean to· us. that th~ TreatY. of Trade. oncernd itself with trade between II}dia andNepal and not with trade between Nepal arid other cottntries. The provisions retating to iplport, export, transit and , the fre 'and' unhampered .fiow of goods refer to the import and the .

eport from one country to anothe~ i.e . . from India to .Nepal and from ' Nepal. to. India and to .the trn.Si_t nd the rree .and unhampered flow 'of . goods in the course of trade between the / two countries .. :Even so, . . express teservatin is maCf.e to enable each ofthe . countries . .to impose ./ restrictions for certain purposes. and to take lluch measures as imiy be . ' nccessacy for th~ .protection .of essential security 'interests and effectua- >'ting international conventions rlating to opium and other dangerous .- .; drugs and also to effectuate "general. crmventions intended . t~ pi:vent ·

infringemeilt of ina!Jstrial, literary. or. drtistiC proptrty or relating to false marks, false indications or 'origin or 'other method's or unfair.

competition". {Art. l 0) <

' ' .

.. . . . . TheTrety of Tranit'is.moe relea-.t. it, .sc11.eae, .. and 'sequence .

and even'the language indicate that it.is based .en the 1965 CONVEN.

TION ON TRANSit.TRADE OF t.AND-:-LOCKED COUNTRiES.

Th~Prearnble t<? the treaty mentions that a_ treaty hu. bee~ ndded. •recognising that Nepal as a la.nd"'c-lockod country needs access to and . .from -the: Sea tO promote its intei'IU.tiOnal trade, and ~Ogci8itlg 1 the I, need •to facilitate the traffice 'in tri.usit through. tl!eir territoriea'.

Art: 3 defines 'Triffic i~ Tran; it' and is as follows: , ..

.C ' '. ·.

'E.·

.···

.G

. / ~. .

I . ''The tenn 'Traffic in. Transit' means the passa~- of ;9ods Including. unaccompanied. baggage .a'cross'the.· territory of a . Contr.actin& ... lrl , .. ,'I.Prty when the passa&e ia a protion'_of a coinplet~ jouraey ?.hca lfepll ·. '

. .

' ·. \

. '

.... 682

. 'SUPREMB COURT REPORTS [1984] 2 s.c.R .

or terminates within' the tcrritor1 of the other Contracting Party. The transhipment, warehousing. breaking bulk ad change in the mode of transport of such goods as well as the assembly or reassembly of machinery and .onlky glclds slull ngt render the passage of goods cutsid.e the it1,'!fi.nition of "traffic in transit"· provided any such operation is

u'ndertaken olely for_., the convenience .. of transportation. Nothing .in .. the Article shall be construed as imposing an obligation on eithe.r Contrac_ting Pn:ty to e; stablish or. permit 'the establishment of • permanent facilities on its territory for such assembly, dis-assembly, or re- , assembly"; -

~ .r . . . •

- Art.l requires the Contracting Parties to accord '7raffic in Transit' freedom of transit across their respective territories through routes mutually agreed upon makig no destination 'based on flag of vesels the places of origin: departure entry, exi( _desti'nation, ownership o(

goods:or vesels.. . . .

Ai:t. 4 exempts Traffic in Trasit from .customs duties and trails-. it duties or other charges except reasonabie charges for transporta~ ·

tion and such other charges as are. commensurate -with the .costs of services rendcrc& in respect of such' transit. . ·

. - ·:Art. 5 requires eah of th~ Contracting Parties to provide, for the convenience of traffic in transit,. warehouses or sheds, for the 'storage: of traffic in trnsit awahing customs .clearance before onward transmission.

( .

I .

Art. 6 stipulates that Traffic in Transit shall • be subject to the

.procedur~ laid down in the Protocol, Articles 8 and 9 correspond to the provisions of Articles 11; 12and 13 'of the 1965 CONV~NTION ON TRANSIT TRADE OF LAND-LOCKED STATES and are

similar to Article 9 nd 5 to 10 of the Treaty of Trade and reserve .the right of each of the. contracting p;.trties to 'impose restrictions for certain. purposes and 'take measures in connection with certain interests. In particular Art. 9 mentions that nothing. in the treaty shall

preveiJ, t either ontractihg Party from taking any meas.ure which may be ncessary in _.pursuance of general conventions intended to prevent infringement ofindustrial, literary or artistic property' or rlat

ing to false mark_§, false indications of oriin or other. mthods of A

\,•

' ....

' .

' )

I. --"'-----

1 . If

:..._.

' ' ' ' - ' ........ ' . ' ' ' ', GRAMOPHONE co.- v. B.B. PANDEY (Chinnppa fteddy,1), 683 '' ' ' . \

' ' . unfair competition.

. A . •.' 'I

The protocl arinexeq to the Treaty of Transit contains a detailed procedure fo'r the tanSit Of gOOdS aCfQSS the territory 'I - ' ' ' ' ' ,, . ' ' of India en-route from , the Pcirt of CalcJitta. to their Nepalese / destination.· . The .Protocol c, oritains detailed . provisions t~ .'

B : ensure the goods reaching Nepal and to: prevent tl1e contingency. of the goods escaping into the Iildian market whiie Oll the way to Nepal. /

' '' ' •' ' ~'-· ' r .,.

While the Treaty of Trade generally garantees to 'each of the ' Contracting Pa.rtis the free and . unhampered flo~ of goods needed

. by one-country from tl1e other, the Tre:a ty of Transit generally guaran- . . tees to each 'of the Coiitracting Parties freedom o'ftransi.t across the

territcry of the other Contrating Party in respect of 'goods which

have 'to pass through the territory of sucl1 other Contracting party to.

. rea, ch the first Contracting- Party .from otside tl1e -territory of the second Contracting Party.

I~ practice the two treaties.really mean a guarantee o Nepal to permit free and unhaippered flovt of good~ needed by Nepal froriJ India and a guarantee of freedom of tninsif .. for goods originating from outside India acro, ss the territory of India to reach epal. :. In the matter of payment of customs duties the ·

r D

. Treaty of Trade provides for the most favourable treatment while the

 Treaty of Transit grants ecmption from such pay.; nent: Both treaties

. , E contain reservatio!l~- ·.there is a reservation enabling. the imposi, tin ·

of such restictions as are~ necessary for the purpose of protecting public , morals, human, animal, -md ' plant life, safeguarding'. national treasures,. the implementation ' of l<~ ws . relating to the impcirt and export of gold arid silver bullion and the.safeguarding of other' mutually agreed interest~. 'there is an express reservation for the 'protection of .essential sec.urity interests. There is also provision for ne, cesary mcasui-s in pursuan.ce 'Of general international conventions elti1}g to transit, export oi: import of articles such as opium

or. other dangerous drugS.

There. is further _ prvision for taking necessary mea'sures in' pursuance of general conventions .intended 'to prevent ipfringment o.f industrial, literary and rtitic pfope:r:tY or · relating to false marks, f<llse indicatio"ns of origin or other metods of unfair co-mPetition. So, the two treaties _...generally :assure to Nepal the free and unhampere<:L flow from India 1and . freed01_n of transit .... acros~ 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 resrvati(?ns enabling each of the contracting parties to

'-..._

~ t • i . ~

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684 , ' ~UPREME COURT ltEPORn

[1984] 2 S; C.R. • . . . A- ' take measures in pursuance of general convei1tions for the protection

of industrial, literary and artistic property.

So we have it that Art. 11 of the 1965 CONVENTION ON TRANSIT .TRADE. OF LAND-LOCKED STATES, Art. 10 of the Treaty ; f Trade and Art. 9 of the' T(eaty .of Transit -contain exceptions to protect ''industrial, literary or artistic property" and to prcv1nt "false marks, false indications.-of origiH or other methods of unfair con1petition", pursuant to generat conventions .. Neither the ·

International C?nvez1tion of 1965-.nor the Treaties between the two . nation~ prohibit th~ imposing 'of restrictions for this purpose. On the .. other'h"lnd, tb.ey contain reservations to the contrary. So great is the

concern of the Inrernational Corqmunity for industrial, literary or artistic property that the Convention on Tra.nsit. Trade of Landlockd .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 necessry restrictions for th(J_ purpose of protecting industrial,

litrary or-artistic proprty and preventing false marks, f~Ise indicatioJ'ts of origin or other methods of unfair competitions in order -f.O furtt1er other general converitions.. It is clear that for this purnose, it is "n8t necessary that the land-:locked "conntry should be a party to the general Convention along with the transit country. The inter

pretation placed by John H.E. Frd that .the provisions of the 1965

Convntion.permit the States of transit to enforce, sa/ a Copyright_

or. tra<, ie mark convention even if, for example, neither "the country . of •origin . nor of destination is. part1 to it appears to us to be a

corrct interpretation.

'-·.

The next step for us to consider is whether there is any generl

Cnvention Copyright. An artisti~,. , literary or musical work is th'! brain-child of its author, the fruit of his labour, and, so, considered

t~ be his property. So highly is it prized by a\1 civilised. nations that it is thought worthy of protetion by national laws and _international

C)nventions relating to Copyright. The Internationaf 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 fi:Q.ally at J?;::ris- . in 1971. Art. 1 of the Convention, as revised, constitutes the couritr; es . . , r \.· to which the Convention applie~ into a Union for the protection of . j

...,. '

... - • • - ., •

""" I'"•' .... "' -·, r. ~

~~-.

· ~· '. '.

1 .

. ..

. '. GRAMOPHONE CO. v, B. B. PAt;_DEY (Chinnappa Reddy, J.) GaS;, ! .

the'rights ofnthrs.iu theirlitcrary' and artisticJwork.s>_ Th~ expression

'litera~ and. artistic orks'., is' defined to include every production in the literary, scientific and artistic c;!.main whatever ay be the ino4e : or formation of. its expression. His P, Tovideclthat thc.work shall enjoy ... .

. .... ',

-' 'pr9tection in all countris of the Unioi1. Variq.us d<; taikd pr, ovisions~

are rilade in the Convention for the protection of the wori.s. Art. 9 pro: . vides that" authors or literary and artistic 'vorks protected by theconven~

. tion shali enjoy the exclusive right o.f authorising the 'reproduction of these . .... -.... , . . . . . ' . works i~· any manner or form. It is also expressly stipulated that any"' . : sound or visual recording. shall be c'onsidcred .... as a 'reproduction for _....-l\lfhe purposes of the Convention: We arc not really conceined with

. the several details of the Convention. B].lt'we may refer t~ 'Art. 16 whiCh

 provides: ·

''1.

Jnfr{ngig CO.J?ies o/ a wor.k• shall be liable to: seizltre in . any CO!Irltry of the Union where the work enjoy 'iegalprotectioi£; . . ' ., . ' .

2. The provisions of the prceding. ; aragraph~ -sha'll ,. also apply to repi'od$1ction.S comitg from a country 1vhere the work is not protecte~ . or.has ce:tsed to e-profected. . ..... . . .

~ . ot . ,. .. . . • '

 3.

Th~· seizure shall take place in accordance wth the Legisia-·.

E --'--#on of each contry ' ': India we may mention .is a parfy to the-Befne

.~ ·

 Convention. ·

The Universal Copyr.ight c6nvntion whi.ch was first sigt{ed In ' . . . . il . . ,, . •. Gneva on September 6,'1952 was revised in Paris in 1971. Each Con-

~ tratirig State is, called upon to undertake 'to pr; vide for theaduate

and eff":ctive protection 'of the 'right of authors arid , other, copy-right

'poperietors in literary, scientific and artistic w<;>rks including writings,

musical, dramatic and' cinematograph '¥,0TkS nd paintings, engraving

~ and sculpture', The ights_are to include the exclusive 'right to autho~ rise reprod.uction' by l\n, y means: publc P.erformance and broadcasting.· 1 ·, Bach 'Contracting State is required to adopt such measures as are necessary to risure ihe application of the Convention. The .. Convention.: is not in-any way to affect the provisiotl. of the Berp.e Convention for the' protection of literary 'or aitistic works or membership in the Union. 2reated by that Convention. The Universal Copyright

Convention is. not apJ?li, cable to the. relationships among countriet ef

- ~- ""

' ' ...

I '

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.....

.K.·

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SUPREME COURT REPORTS '.


having as their country of origin, within the meaning of the Berne Convention, a country of the Berne Union. India is a sighat01y to the Univesal Copyright convent'ion also. ..

. • The time i~ now ripe for us to refer to our own Copyright Act .of 1957. Section 2(c), (h), (o). (p), (f). d (w) define 'artistic work', 'dramatic' work',' 'literary work', 'musical work', 'cinema, to-' . graph film' .and 'record' respectively .. Sec. 2(y) 'defines '•work" as

':,...

mqming. any of th~ following. works,. nam:el~, ~·

(i) a literary, dramatic, mmical or artistic works;

(ii) a cinematograph film'; ·

. . /.

(iii) a record. ..

. ,

. 'Record' is defiried by sc. 2(w) to mefjn 'any disc. tap~, perforated roll or other evice. in which sounds are embodied so as tn be capable of being reproduced therefrom, other than a soun(.t tr:1•; k associated with the cln<:!matogruph fiilm. 'Recording' is dcfinc(l J by Sec. 2(x) to. mdm :the aggregate of thy sounds_embo.d.ied i'n a:·:(:. c;'lpable of being repr0duced by means of a 'record" .. ~Infrir.ging · G;)fJY: in relation to a rcord is defined 'to rhean; by Sec. 2(m)(iii), ., '';'tny such . record embodying tM same .recording. lf such r.:':cord is made or imported in contravention of the provisions of the' Act''. Sec. 13(1) states . .th.B.t copyright shall subsist through out India in (a) original, literary, draatic, mnsical and artistic. works;

(b) cinematograph films; and (c) records. Sec. 14 explains the eaning of 'Copyright' in relation to vartous 'works'. In the . case of., a rec_ord, copyright -is said to mean "the exclusive righ~, by virtue of, and subjectto the provisions of, this Act to do or authorise the doing of any '0{ the . fonowin& acts by uW!in~ t11e

record, namely : . · . 1 . ·

~. ..... '

' , (i) to make any other record embodying the _same recording;

. i

...

. >

'' '.

. GRAMOPHONE CO. v. B. B . . Pi\NDEY. (Chinnappa Reddy; J.) 087. ¥. 0

.. (ii) to cause the recording embodying m the record to be

 A

eard in public;

(iii)' to communicate the rcording embodiep. in the reco'rd.

by .t:adio diffusion" (Sec. 14(1)(d). \ . • ,,

, • • . . Sections l7 to 2l cical with ·_ownership of Copyright anrl

.- •:"' tile rights of the own::r', t, Sections 22 to 29-.with •Term of Co11y- ; right', Sections 30 to 32 with •Licences',. Sections 33 .to 36 , ith . ~~-Performing Rights . Scities': Se'ciions .37 to 39 with. Rights of Broadc'asting Authorities, Sections 40 to 43 with International Co'py-

C · right and Sections 44 . to. so'..- with Registration . of Co.pvright.

Soetions Sl to 53 dal with infringe met of copyright .

. Sec. 51 sttteswhen copyright .in . a work shall be deemed - • to b; infringed., In prticu1ar Clause (b) states that Copyright D shall be deemed to be infringed 'when auy person- •, • ,

. :.:. (i) . makes for sale or hire, or sells or 'lets for , hir~,. or by · · way of trttde diplays or offers for sale or hire, or ' .,_

-! . ..l.... (ii) ditributes : either for the purpose of trade or tb suh au extent as to affect'prejudici!lilY the owner of.the copyriht, or '

.. .

-~ i,

" ( •

,;, "' . . . .

(iii) by way'of trade exhibits i~ public, or.-~

-· . ' s •

~- ,. .(iv) imports (except for the priv'ate and .domestic" use of tb.!_, J.tnporter) into India, .

.\ any infringing copie, s ~( the work'. .,..

 'Thee is. a.u ctxplaatio~ to which it is not necessary to referfor. the purposes' of this case, ·. • · " " . ' - .

. J

,-

- I . .

' 'H

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SUPA'EM!. COURT Rr.PORTS'

A . Sec .. 52 . enumerateste acts which shall not constitute an

B • . -·

infringment of copyright; Tt is-unnecessary to refer to 'the varios

acts enumerated in Sec. 52, it is enough to state that bringing, 'into India ::tn infringing wor'k for . the purpose of transi't t.o Nepalor any other '-.Ountry is not one of the e-xcepted acts.

'Sec. s3 which is of direct relevance it deals with impoi' tation of infringing copies' -needs to be fully extractd'. It -says, : . . "

. . "53. {l) The Registrar of Copyrights, _on application by th<:-~ owner of the copyright in any .work Cf" by this duly authorised agent . an~ on payment of the pre, scribed. fee, n\ay, after making such in •.

_quiry as h~ deems fit, order that copies made cut of India of tbe work which if mnde in Tnrlia would infringe copyright shall not be

-;. ·.

( " •· . imported. -. . ; -..,...~

. ' (2) Subject to any rule$ m3.de under this Act, the Registrar ' of Copyrights or a'ny person authorised by him in this behalf may enter any shi'p, dock or premises where any such copies as are referred to in sub-sectiori (l) may be found m1d 'may. examine such copies ..

. . ', \

(3) All copies to which any rder made under sub-section(])_)._ . ·, applies shall be deeiAed to be goods 0f which the import has been prohibited or. restric.td under Sec. 11 of _the Custo; ns Act, 1962, and all the revisions of that Act shall have effect ac9ordingly; .

. ·,

Provided .that all such copie~ confiscated uner. the'provi; sions of the said Act shall not vest in th.e Government but shall be - delivered o 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 "impo-rted: This "' the Regi_strar may do on the application of the owner of . the Copy-

_right in 'that work or by his duly authorised -agent on payment of the pr-sribed fee and after making such enquiry, as h~ deems fit .

. ..

-< .\

GRAMOPHONE co. v. B.B. PANDEY. (ChinnappaReddy, J.) 689 . . . . . , .

I '

The effect of sbh

1an order by the Registrar is to deem all cop.ics to which the order applies to he goods of& which the import has been prohibited or. restricted under sec.· 11 of the Custom~ Act, I962,.and . to attract all the prvisions !of the Customs , Act on that basis, inCluding the liability .to be c~fiscated, with the slight /modification that .copies confiscated tinder th~ provisions of that Ac{ shall' not vest in

~ the /Government, but sha!I be delivered'to the 'owner of the (::opy- . ·/right. . •

 .' . , , .. Thequestion is what_dpes the word, 'ilJ1po.rt' mea~ in Sec. 53 . . ~?f the Copyright Act ? The word is not -defined in the Copyright . Act though it is defined in the Custom:s Act. . But the' sam~

.:\rord may niean different things i:o.' d ifferet enactn1ents arid in diffe-· . rent contexts. It may even mean differenl things~ at different places in the same statute .. It all depends. on the snse of the .provision ..

if-. ..,. wher: it occurs. Reference to. dic.tionaries. is hardly of any avi1,

. .;

. particularly. in the case of words of ordinary parlance with a varjety . . of wellknowr meanings.- Sucir words take colour from the ontext .. . Appeal to-the Latinroot won't. help. The'--::.appeal mut"be to th.e sense of the statute.

Hidayatullah J in Burmah Shall etc v ..

Cmmercial Tax Officerf [1961] 1 SCR 902 has illustrated how the contextuai mea.tiings of the very 'words •import' and ·~pot'. may . vary. ,, • \

' " -:. .

We may look at Sec. 53, rather than elsewhere, to discover file meaning'of. the word . '•import". We find that the meaning is . . . \, . tated in, that pn;>Visic)n itself. If we ak 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 ·hat 'impor~' in the provision means bringing int<;> India frO'l'l'i. 0ut of India. That,. we. see in precisely ho~ import is defined uner the Cust~!n~, Act. , Se~. f(23). of the Customs Act, 1962, defines the . 'Y?rd in this

nanner ; ·

'. ( :1 "Iinport, 'with its gr&mmatical 'variation and ognate expres. ..... sio~ means bringing int~"lddia" from a place outside India. But we

• do not propose to have recourse to ·.custos Act to interpret ex-. ' . pressions in thd Copyright A, ct even if it is permissible io do so .

because Sec. 53 o{the Copyright Act is made; i<? run wih Sec,.'ll of. the Customs 'Act. / -

\ I .

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690 SUPREIYfE COURT REPORTS (

[1984) 2 S.C.R

Tt was submitted by. the learn~ counsel for the. respondent~ that where goods are brought into. the country not for commerce, put for onward transmission to, another country; there can, in law,-

be n0 importation. If was said that the. object of the Copyright A.ct was. _to prcent_ uputhorised. reproductin of the work_ or te . unautho'nsed explOltahon of the reproduction of a work 111 Indta . a.nd this object would not be frustrated if infringing copies of a work were allowed. ransit across the country. If goods are brought in, only to go out, there is no . import, it was said. It is diflicult to agree with this submission, thoughtit 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 t)1ewords' 'imported for commerce' for the words \ 'imparted'. Nor is t!lere any reason to assui11:: that such vias .the ohject of the legislature. We , have , already mentioned the importance attached by International opinion, as man_ifested by the various International Conventions and Treaties, tQ the protection of .'Copyright and the gravity with which traffic in i'ndustdal, literary or artistic propery is viewed, treating such trffic on par with traffic in narcotics, dangero\1s drugs and . arms .. In interpreting the word 'itnport' i1i the Copyright Act,· we must take

note that whik the .Positive requirement of the Copyright Conventions is to protect opyright, negativel:y also, the Transit Trad_e Convention and the biia, teral Treaty maKe exceptions enabling the Transit State

to 1t1k~ m:asu;:e to protect Copyright. If this much is horne in

., ~-

mind, _it becomes clear that the word '; imporr i~ Sc. 53 of the)__ , Copynght Act cannot bear the narrow mterpretatwn .. sought to be-

~ placed upon it to limit it to ini.port for commerce, It must be interpreted in a sense which- >vill fit the Copyright Act into the setting of the International.Conveutions,

- The Calcutta :{light Opurt .thought that goods .may b~ said t6 be imported into the country only if there is an incorporation or. mixing up of the goods imported wHh themass of the property ht the local area. In other words the High Court ealisd on tge original package 4octrine' as. enunciated by the Amer.ican Court.·- Reliance• was placed by the High Court upon: .the decisi0n of this court in the Cenlrallndla Spipning and: Weaving & Manufacturing Co. Ltd; 1

J.

The. Empress Mills, Nagpur v. The Municipal Committee, Wardha [1958] SCR 11 02). That was a case which ar0se under the C!P. and B, erar Municipalities Act and the question was. whether tffe ppwer to impose ''a terminal-tax ori., goods or m1imals. imported into. ' . .

< '

. \

.-.

G~AMOPHONE co. v. B.B. PANiiEY (Chinnappa RddJi., j) . . ' , . 691 ....

o'i exported fr;)in. the limit's of a municipality" h1cluded' the right to levy tax o;, goods which •wer.e neither' loaded or unloaded. ai ·

I ' .\vardha but Wi3.iC merely Carried aCrOSS through the llUilicip~J area' .

. I

.·This court sai(t that it did not. The word 'import', it was thought'

meant not mrely the bringing int(; 1Jt caniprised something inorc,'

that is 'i!1corpo.rating and mixing up oftlie goods with the mass of

the property in the. loca I area', thus accpting the enunciation of

- U the 'Orighat'Package ~:D-octrinf 1Jy Chief Justice .Marshp/l in Brown ' 'c ·· . v.

State of Maryland 6 LEd-. 78. Another reason 'given by the ' learned Judges ' to arrive at t, he conclusion that they .did, was that . the very levy was a 'terminal tax' a:ud,. therefore, the )\'Ords 'iport

' and export', in Ute giyen context, had :something. to do with the idea of a terminus and not an intermediate Stage-of a jaurnay. We are . ... i' • . ' - ...,__ afraid the case is really not' of any guidanc'e to us since in thecon- ·,..' / text of a 'te.ninal tax' th~ 'Yords 'imported and. exported; could be construed in no other manner than was done by the Court. We must howver say that'the.original package doctrine' as enunciated b'y . ciief Justice Marshall on whtch reliance was plced wa~ expres-·

.sly. disapproved first BY the FederalCourt intheProvine of Madras

v. Bddu Paidanna, [1942] FCR 90 .and again by the upreme

Cour~ in State of Bombfy v. F'.N. Balsara, [1951] SCR 682.·

App~Yently, these decisions .were not broughJto the noticeof he court which decided the case. of Central l1idia Spinning and , Weaving and

Mamifactuing Co. Ltd. The Empress Mills 'N.apur Muf!icipal Com- , mittee, Wardha: So _we drive no help from this case.

A~ we said,

, E.· .... ..... :. we prefer tointerpret the words.'import' as it is found in the Copy-.· ~, :right Act rather than research. for its meaning by. referring to other · . ' than research statutes where it has been used. : ' ' ·. • .. ... .,.,.~ ../ • . ' i " . The learned consel for the appellant invited our attention to. _ I . "'. -, t • Radhakishan v.


. ,/"

 v .. Syli'anid :and Laxmrm, 77 Born. Ll:t 380, Bernado v. Collector oF Customs A. I.~. 1960 kerala L7:J, to urge that importation . was complete so. soon as the Customs barrier was crossed. ·.They are

cases under the customs Act and it is need.Je'ss for US to seek aid from there when there is enough direct light under the Copyright

Act and the \iarious ; conventions and treaties which have with the . subject ''Copyright' from different angles. ·~ e do not al~~ .. desire to' . ' .crow our judgmnt with reference .tc) the history of' the Copyright

and tle. Custom~ legislations~ jn the United Kingdom:' atld India as we do not think It nec'essar~ to do so in this case.\,· ···· .. ·. , . . . \ we have, therefore, no hesitation in coming to the conclusion that tlie~ word .. 'import' in 'Sees. 51 and 53 of the Copyright Act

') ..

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.• .!

': •

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A . ..

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l '692

SUPREMI! COURT REPORTS [19841 2 s.c.R._

' . nieans 'bringing into, India from outside lndia', that it is nqt limited, . to. importation for c9mmerce oti)Y but ioclues importation for transit. aross ·.the country. Our interpretation, far from being intonsi_stent with\ any principle of International law, is entirely in ac'cord with Internationa I • Conventions and , the Treaties between India and Nepat': A;1d; that we think is as it should be. ·-

) ' ·, ' '' We have said that a~ order under Sec. 53 may be made by

.) r'

 the R, f)gistrar 9f Copyrights on the application of the owner of the . :- _, Copyright, but after making such: enquiry as the Rgistrar 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 Customs Act. Thereupon the relevant. provisions of the Customs Act are to apply, with {he difference that confiscated opies

shall not vest itl the. Government, but shall be. delivered to the owner of the (;-opyright.u One fundamental difference between the nature .of n . Notification nder Sec. 11 of the Customs Act and an _. order made under .Sec. 53 of the , Copyright Act is that the former is

 quasi-legislative ·]n char:acter, while the lattet is quasi-Ndidal' . jn '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 Boar~ against the order. of the Registrar under Sec. 72 of the- Cqpyrigtit Act. We mention the character of the order

' ' ' ' / undP.r Sec. 53 to indicate that the effect of an order under Sec. 53 of the Copyright Act is not as portentous as a notification under Sec .. 1.1 of the Customs Act. The Registrar is nor' bound to make )' an order under Sec. 53 df tJ:te Copyright Act so soon as an applica _ - tion is presented to him by the owner of the Copyrighc. He has

natwlly . to consider the . dntext of. the' mischief sought to be

prev~ted. He must consider whether the copies would. infringe the · Copyright if the copies wrre 'illade in India. He must con:ider. whether the , applicant owns the Copyright or ls the duly authorised agent of the .Copyright. He must. hear thse tlaiming to be affected if an order is made and consider any contention that may be put . , forward as an excuse for the impo, rt. fle may consider ny-other rdevant circumtane. Since all legitimate defences are open and . • the enquiry _is qu"si-judicial, n'o one canserious]y complain.~.,

In the re!?lt; the judgment of the Division Bench is set aside and tha_t of the learned single judge .restored. There is no. .order as to costs. woe are grateful to the learned Attorney , General, who appeared at our instance, for the assistance given by hhn.

-' '

Appeal allowed.

lr .... '