Legal principle

Questions such as prescribing a safe distance between general and hazardous cargo are matters of scientific expertise on which a court under Article 226 defers to the Commissioner of Customs and will not interfere unless the prescription is arbitrary, since a standard once laid down is not immune to change.

Court decision

The Court disposed of the Petition with no order as to costs, holding that nothing arbitrary was shown in the impugned decisions: the prescription of distance between hazardous cargo and office buildings, and between general and hazardous cargo, 'cannot by any means be regarded as arbitrary or ultra vires.' The result favoured the Department in that the measures were not struck down, but since the CBEC had referred the matter to the Union Ministries of Environment and Forests and of Shipping, the Court expected those Ministries (with Finance/Department of Revenue) to undertake a collaborative, expert-based re-evaluation and left the competent authority free to take a considered decision on the standard.

Facts

M/s CFS Association of India, representing eleven Container Freight Stations handling nearly 80% of local container cargo at Nhava-Sheva, challenged Circular 4/2011, Public Notice 8/2011 and a check list issued under a letter dated 3 March 2011 (modified 6 April 2011). Following suggestions of the Parliamentary Committee on Subordinate Legislation, the CBEC issued safety guidelines requiring hazardous cargo to be stored in an isolated place and, under clause 5, at a minimum of 200 metres from the main office, administrative or customs office building; the Deputy Commissioner's check list prescribed a minimum distance of 100 metres between the storage of hazardous and general cargo. CCSPs intending to store or handle hazardous cargo were required to apply for verification of compliance under Regulation 10(2), and the Association's request to reduce the 100-metre distance for want of yard space was refused, the Commissioner stating no compromise on safety was possible. The Petitioner contended these measures were unconstitutional and ultra vires Articles 14 and 19(1)(g) of the Constitution, the Environment (Protection) Act 1986 and the 2007 JNPT Dangerous Goods Regulations.

Key provisions

• Section 45, Customs Act, 1962 — Restrictions on custody and removal of imported goods
• Regulation 5, Handling of Cargo in Customs Areas Regulations, 2009 — Conditions to be fulfilled by Customs Cargo Service provider