Topic: Gramophone Co. of India Ltd. v/s Birendra Bahadur Pandey

Gramophone Co. of India Ltd. v/s Birendra Bahadur Pandey
Equivalent citations: 1984 AIR 667, 1984 SCR (2) 664 - Bench: Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Misra, R.B. (J) - Citation: 1984 Air 667 1984 Scr (2) 664, 1984 Scc (2) 534 1984 Scale (1)338 - Date of Judgment: 21/02/1984

ACT:

Copyright Act, 1955-ss. 51 and 53-word `import'-meaning of. Character of order under s. 53-quasi - judicial. International Law-Whether becomes part of municipal law without aid of municipal statute-Whether override municipal law in case of conflict.

International Law-Rule regarding right of land-locked states of innocent passage of goods across another state. Practice-Courts must interpret national law in a way so as to avoid confrontation with international law. Interpretation-Rule of-While interpreting words of ordinary parlance reference to dictionaries of no avil.

HEADNOTE:

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 s.53 of the Copyright Act, 1957 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 s.53 of the Copyright Act.

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. v. Central Bank, [1977] I All E.R. 881; West Rand Central Gold Mining Co. v. The King, [1905] 2KB 391; Lauterpacht in International Law (General Works); Latham CJ in Politics v. The Common wealth 70 Commonwealth Law Reports 60; Tractoro- export, Mascow    v. M/s. Tarapore & Company and Anr, [1970] 3 SCR 53 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,

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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    H.B. 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 Copyright Act 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 s. 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 words`import' in the Copyright Act,     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 s.     53 of     the Copyright Act 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 Copyright Act into the setting of the International Conventions. [690 B-E]

The word `import' in seces. 51 and 53 of the Copyright Act 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 Nepal.[691 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 v. State of Maryland 6 L, Ed. 78.     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 v. The Municipal Committee, Wardha [1958] SCR 1102. That was a case which arose under the C.P. 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 v. Boddu Paidanna : [1942] FCR 90 and again by the Supreme Court in the State of Bombay v. F.N. Balsara, [1951] SCR 682. [690 G-H, 691 A-E]

An order made under s. 53 of the Copyright Act is quasi-judicial. The Registrar is not bound to make an order under s. 53 of     the Copyright Act 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]

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JUDGMENT:

CIVIL APPELLATE JURISDICTION: 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 & D.N. Gupta, for the Appellant.

Santi Bhushan, S.K. Roy Chowdhury and H.S. Parihar for Respondent No. 1 in CA. 3216 of 1983.

B. Gupta,    S.K. Roy Chowdhary and H.S.    Parihar     for Respondent No. 1. in CA. 3217-18 of 1983

P.A. Francis, R.N. Poddar for the Respondent. K. Parasaran, Attorney General, Gopal Subramaniam and C. V. Subba Rao in response to notice.

G.S. 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

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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 Copyright Act? 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 M/s. 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     Copyright Act, 1957. 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 Customs Act, 1962. 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 Copyright Act and to prevent release

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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 Copyright Act 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

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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. v. The King(1) 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 Art.24 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 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 only     in so    far as it has been adopted by German Customary law, lacks foundation in law. Such a legal maxim would, more-

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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 v. The Commonwealth(1):

"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    v. M/s Tarapore & Company and Anr.(2)

"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

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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

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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. Art. 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.    Art. 4    refers to means of transport     and tariffs. Art. 5 refers     to methods and documentation in regard to customs, transport, Act. Art. 6 refers to storage of goods in transit. Art. 7 refers to delays or difficulties in traffic in transit. Art. 8 refers to free zones or other customs facilities. Art. 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. Art.     10 refers to relation     to most favoured- nation clause.    Art. 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,

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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.

2. 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.

3. 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.

4.     Nothing in this Convention     shall    prevent     any Contracting State from taking    any action necessary for the protection of its essential security interests". Art. 12 refers to exceptions in case of emergency. Art. 13 refers to application of the Convention in time of war. Art. 14 refers to obligations under the Convention and rights and duties of United Nations    Members. Art. 15 refers to reciprocity. Art. 16 refers to settlement of disputes.    Art. 17 refers to signature. Art.     18 refers to ratification. Art. 19. refers to accession. Art. 20    refers to entry in to force. Art. 21 refers to revision. Art. 22 refers to notifications by the Secretary-General. And Art. 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 H.E.     Fried,     who represented the Government of Nepal as one of the members of the delegation    at the    U.N. 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.

1. 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 (Art. 11, Para 1):

(a) grounds of public morals- e.g., indecent literature:

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(b) on grounds of public     health or public security; (e.g., 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.

2. 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.

3. 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". Art. 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. Art. 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. Art. 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. Art. 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. Art. 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

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(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 i.e. 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". (Art. 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'. Art. 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

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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". Art.1 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.

Art. 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.

Art. 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. Art. 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 Art. 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

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take measures in pursuance of general     conventions 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 of Trade and Art. 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 H.E. 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.

Re: Gramophone Co. of India Ltd. v/s Birendra Bahadur Pandey

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. Art. 1    of the     Convention, as revised, constitutes     the countries to which the     Convention applies into a Union for the protection of

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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. Art. 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 Art. 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.

3. 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

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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 Copyright Act of 1957. Section 2(c), (h), (o), (p), (f) and (w) define 'artistic work', dramatic work', literary work, 'musical work', 'cinematograph film' and 'record' respectively. Sec. 2(y) 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. 2(w)     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.    2(x) 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. 2(m)(iii), "any such record embodying the same recording. If    such record    is made or    imported in contravention of     the provisions of the Act'. Sec. 13(1) states that copyright shall subsist through out India in (a) original, literary, dramatic, musical and    artistic works; (b) cinematograph films; and (c) records. Sec. 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;

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(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. 14(1)(d).

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,


Sec. 52 enumerates the acts which shall not constitute an infringement     of copyright. It is unnecessary to refer to the various acts enumerated in Sec. 52. 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,:

"53.(1) 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- section(1) applies shall be deemed to be goods of which the import has been prohibited or restricted under Sec. 11 of the Customs Act, 1962,     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.

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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 Customs Act 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 Copyright Act ? The word is not defined in the Copyright Act 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 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 v. Commercial Tax Officer, [1961] 1 SCR 902 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 Customs Act. Sec. 2(23) of the Customs Act, 1962 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 Customs Act to interpret expressions in the Copyright Act even if it is permissible to do so because Sec. 53 of the Copyright Act is made to run with Sec. 11 of the Customs Act. 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 Copyright Act 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 Copyright Act, 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 Copyright Act 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 Copyright Act 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 v. The Municipal Committee, Wardha [1958] SCR 1102). That was a case which arose under the C.P. and Berar Municipalities Act and the    question was whether the power to impose 'a terminal tax on goods or animals imported into

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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 v. State of Maryland 6 L.Ed. 78. 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 v. Buddu Paidama, [1942]     FCR 90     and again by the Supreme Court in State of Bombay v. F.N. Balsara, [1951] SCR 682. 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 Copyright Act 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 v. Union of India : [1965] 2 S.C.R. 213, Shawhney v. Sylvania and Laxman,     77 Bom. LR.    380, Bernado v. Collector of Customs A.I.R. 1960 Kerala 170, to urge that importation was complete so     soon as the Customs barrier was crossed. They are cases under the Customs Act and it    is needless for us to seek aid from there when there is enough direct light     under the Copyright Act 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 Copyright Act

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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 Customs Act. There upon the relevant provisions of the Customs Act 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 Customs Act and an order made under Sec. 53 of the Copyright Act 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 Sec.72 of the Copyright Act.    We mention the character of the order under Sec. 53 to indicate that the effect of an order under of the Copyright Act is not as portentous as a notification under Sec. 11     of the     Customs Act. The Registrar is nor bound to make an     order under Sec. 53 of the Copyright Act 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.

H.S.K.     Appeal allowed.