' AYESHA A. MALIK, J.---Through this petition, the petitioner has impugned the act of repeatedly granting one time permission to import CO2 from India through Wagha Border by the respondent No,1 to the respondents Nos.6 to 12.
2. The case of the petitioner is that it is a public limited company engaged in the production of CO2 for which millions of rupees have been invested by the petitioner in a CO2 recovery plant. The grievance of the petitioner is that the import of CO2 from India through the Wagha Border by the respondents is illegal being contrary to law. Learned counsel for the petitioner argued that the import of CO2 from India through Wagha Border is not allowed under section 5(B)(iii) of Import Policy Orders, 2013 (I.P.O., 2013). Learned counsel argued that by allowing the respondents repeated permission to import CO2 from India through Wagha Border, the respondents have in fact compromised on the standard of the CO2 being imported through the Wagha Border. Learned counsel argued that the import of CO2 requires the process of cleaning, scrubbing and purification before it becomes fit for human consumption. Furthermore, mishandling can also cause explosions. Learned counsel .Argued that in this regard there is no storage facility, no quality checking facility or transport facility available in the import of CO2 from India through Wagha Border. Consequently, the CO2 being imported does not meet with the requirements of Pakistan Standard and Quality Control Authority (respondent No,3) nor is it certified by any authority and it is unfit for human consumption. Learned counsel argued that the respondents Nos.6 to 12 are using the imported CO2 in beverages which are being consumed by the public at large, rendering the entire public of Pakistan at risk for consumption of poisonous CO2. Learned counsel further argued that there is no product testing facility at Wagha Border and there is no infrastructure which has been developed at Wagha Border which can check the quality and specifications of the CO2 which is being imported. Learned counsel further argued that one time permission cannot be granted repeatedly because in doing so the objective of the one time permission is totally lost. Learned counsel argued that no reason is given by the respondent No,1 as to why repeated one time permissions are being granted to import CO2 from India whereas the requirements of section 20 of the I.P.O., 2013 requires that the authority gives reason for grant of one time permission. Learned counsel argued that there is no provision in the I.P.O., 2013 for regularizing the one time permission and the same amounts to abuse of authority by the respondent No,1.
3. Initially, this writ petition was filed against the respondents Nos.1 to 6. However, subsequently, through an order of this Court dated 29-5-2013, the respondents Nos.7 to 12 were also impleaded in the instant petition.
4. Report and parawise comments have been filed by the respondents Nos.1, 2, 5, 7, 8, 9, 11 and 12.
Learned DAG on behalf of the respondent No,1 argued that it is necessary to import CO2 from India in order to meet with the local demand as the local production is unable to satisfy this demand.
Learned DAG further argued that Ministry of Commerce has allowed the import of CO2 from India through. Wagha Border and therefore to regulate the matter permission on a case to case basis is given under section 20 of the I.P.O., 2013.
5. Learned counsel for the respondent No,2 argued that CO2 has not been included in the list of items importable from India through land route Wagha. However, there is no restriction to import the said item from any other specified custom routes. Learned counsel further argued that there is no restriction to import the CO2 as per prevailing Import Policy Order, 2009 or 2013 and as such no certification of food grade is required for custom clearance. The matter of authorization to import CO2 from India through Wagha relates to the Ministry of Commerce, Islamabad.
6. On behalf of respondent No,3 Muhammad Yasin Akhtar, Director appeared in person and stated that the respondent No,3 has no concern with this issue and is not required to certify the quality of the CO2. He stated that a list of products have been given to the respondents No, 2 by the respondent No,1 which have to be certified by the respondent No,3. He stated that the respondent No,3 does not certify any goods other than those mentioned in the list and CO2 is not on the list.
7. No one appeared on behalf of the respondent No,4. Learned Law Officer appeared on behalf of respondent No,5 and stated that this matter has no concern with the respondent No,5.
8. Essentially the case of the respondents Nos.6 to 12 is that the import of CO2 from India through Wagha. Border is permissible as it is covered under the Import and Export Act, 1950 (Act of 1950).
Section 3 of the Act of 1950 provides for the powers to regulate import and export into and out of Pakistan. The Federal Government has provided for import policy orders from time to time, stating its policy thereto. Section 4 of the I.P.O., 2013 provides that import of all goods is allowed from worldwide sources unless specified to be banned, prohibited or restricted, in the I.P.O., 2013. Section 5 provides for prohibition and restriction and. CO2 is neither banned, prohibited or restricted.
Learned counsel argued that the quality of the CO2 that is being imported is in consonance with the proscribed international standards and the basic premise of the instant petition that has been filed is misconceived and misleading. Learned counsel argued that nothing has been brought on record by the petitioner to show that the CO2 being imported by the respondents Nos.6 to 12 is unfit for human consumption or unsafe in any manner whatsoever. Learned counsel argued that the petitioner has filed the instant petition with mala fide intent simply to further its own commercial interest as the petitioner manufacture CO2 and is desirous of monopolizing the market and selling CO2 at an exorbitant price. Learned counsel argued that since the local production cannot meet with the local demand, hence the respondent No,1 has allowed the respondents Nos.6 to 12 to import CO2 from India through Wagha Border. Learned counsel further argued that the CO2 being imported by the respondents Nos.6 to 12 is one hundred percent fit for human consumption and as such there is nothing dangerous or unsafe about it. Learned counsel argued that the stated respondents are all compliant with international standard for processing, transporting and using CO2. They argued that the petitioner is also required to meet this international standard and the entire petition is misconceived and misleading and as such is not maintainable.
9. On behalf of the respondent No,12, Ms. Ayesha Hamid appeared and argued that the International Society of Beverage Technologies (ISBT) is the only international society dedicated to the scientific and technical aspects of non-alcoholic beverage industry. The ISBT Carbon Dioxide Sub-Committee was formed in 1992 to address concerns relating to the quality of carbon dioxide used by the beverage industry. They issued the ISBT CO2 Guideline in 1999 and have revised them from time to time. These are the quality guidelines setting out the parameters for quality, for processing, storing and managing CO2. In any beverage where CO2 is utilized these ISBT Guidelines have to be complied with. She stated that the beverage company itself carries out a quality audit.
There is no system devised or adopted by the Government of Pakistan which can test CO2. The respondent No,3 cannot do any testing on the spot nor is there any testing facility available in Karachi at the Port to test CO2. She argued that the users of CO2 have to be ISBT compliant which includes the petitioner. The ISBT standard ensures that the quality is maintained and the production has to be ISBT certified. In this regard, all the respondents are ISBT compliant. The CO2 is tested in India and "approved vendor status" is granted to those vendors who meet the ISBT Guidelines. Hence the respondents can only purchase CO2 from an approved vendor and in the case of the respondent No,12 it has three approved vendors in India. She further explained that there is no specific storage facility provided for CO2 at Wagha or Karachi because the CO2 is loaded in cryogenic tanks which are directly transported. Hence there is no need to use any storage facility of the Government.
10. Learned counsel for the respondent No,7 Mr. Munawar us Salam argued that CO2 is not a banned item as contained in Appendix-A of the I.P.O., 2013, nor is it a restricted item as mentioned in Appendix-B of the I.P.O., 2013. It is also not mentioned in Appendix-G of the I.P.O., 2013 which provides for the list of items not importable from India. Meaning that it can be imported from India, as there is no ban or prohibition on it. He argued that Appendix `G-I' shows items importable from India through land route Wagha. CO2 does no appear in the list at Appendix `G-I' which is why permission is taken from the respondent No,1 However, he argued that this does not make the permission a one time permission under section 20 of the I.P.O., 2013 as permission is given as per policy as the import from Wagha and not to impose conditions on a restricted item as per the I.P.O., 2013.
11. Heard learned counsel for the parties and have gone through the record available on the file.
12. The petitioner has prayed that the permission granted to the respondents Nos.6 to 12 by therespondent No,1 be declared illegal and they be restrained from importing CO2 from India through Wagha Border. He has also prayed that CO2 imported thus far by the respondents be destroyed. The Federal Government from time to time has issued Import Policy' Orders, which essentially governs the import policy of the Federal Government. The prevailing policy is the I.P.O., 2013. Section 2(d) of the I.P.O., 2013 defines Banned Item to mean a commodity import of which is prohibited under this order. Section 2(i) provides for "Restricted item" to mean a product import of which is subject to conditions specified in this order. Section 4 provides that import of all goods is allowed from worldwide sources unless otherwise elsewhere specified to be banned, prohibited or restricted in this Order. Section 5 provides for prohibitions and restrictions. Section 5(A) provides that goods specified in Appendix `A' are banned for import. The conditions in which the ban shall not be applicable are stated in section 5(A). However, they are not relevant for the purposes of the dispute in the instant petition. Section 5 (B) provides for restrictions such that goods specified in Appendix 'B' shall be importable subject to the conditions laid down therein. Section 5(B)(iii) provides for the import of goods from India or of Indian origin specified in Appendix-G shall not be importable. The goods other than those mentioned in the said Appendix shall be importable from India subject to same conditions and requirements as prescribed under this Order wherever applicable. The case of the petitioner, as pleaded in the petition falls under section 5(B)(iii) of the I.P.O., 2013. Section 5(B)(iii) provides for two lists, namely Appendix-G which provides for the list of items, which cannot be imported from India. These items are absolutely restricted for import from India and CO2 is not mentioned in this list, therefore, it is not an item, which is absolutely restricted for import from India. Appendix `G-I' provides for the list of items which can be imported from India through land route from Wagha. This list specifies those items which can be imported from India through the Wagha Border. Again this list does not contain CO2. The question then arises as to whether CO2 is restricted under section 5(B)(iii) since it is not mentioned in the list allowing import through Wagha Border. The I.P.O., 2013 uses three words to specify whether or not an item can be imported into Pakistan. An item can be categorically banned or it can be prohibited and then there are items which are restricted. CO2 is neither a banned item nor a prohibited item nor is it included in the list of restricted items. Appendix 'GT provides for items importable form India through land route from Wagha, which means that the items mentioned in the list can be imported through Wagha Border. Appendix-G "Note-6" provides that goods specified in Appendix G-Ishall be importable as well via land route from Wagha. Reading "Note-6" leads to the conclusion that the items mentioned in Appendix `G-I' are not the only items that can be imported from India through Wagha Border. Appendix `G-I' contains the list of those, which are importable from India subject to any terms and conditions specified in the I.P.O., 2013. However, if an item is not banned or prohibited under the I.P.O., 2013 then the respondent No,1 can consider and give permission to import that item as per its requirement and policy. In this case, the respondents Nos.6 to 12 have been taking permission from the respondent No,1 to import CO2 into Pakistan from India through Wagha Border.
The respondent No,1 being the relevant authority could give such permission in order to meet the local demand for CO2. It is noted that CO2 is not an edible item. It is an ingredient which is used in the manufacturing of different products including beverages. The respondent No,1 has been giving permission to the stated respondents for importing the CO2 as a matter of its policy. The grievance of the petitioner is that if any permission is given then the same is given under section 20 of the I.P.O., 2013, which provides that the Federal Government may for the reasons to be recorded allow import in relaxation of any prohibition or restriction under this order. A plain reading of the section shows that there is nothing in this section which provides that the permission can only be given one time. It is the petitioner's interpretation of section 20 of the I.P.O., 2013 that the permission can be given only one time and any further permission being granted is contrary to section 20 of the I.P.O., 2013. The objective of this section is to regulate and control the import of all restricted or prohibited items under the I.P.O., 2013. The respondent No,1 can relax any restriction or prohibition as per its policy. The item CO2 is not specifically restricted or prohibited under the I.P.O., 2013 for which a relaxation is required. It is the import via land route from Wagha which is controlled and regulated hence permission is sought to import items through Wagha from India. In the instant case, the respondent No,1 has categorically stated that regular permission is being given to the respondents Nos. 6 to 12 as and when they move their application to meet the increasing demand of carbonated beverages in which CO2 is required. The local supply cannot meet this increasing demand, hence the respondent No,1 has deemed it appropriate to allow the respondents Nos.6 to 12 to import CO2 from India through Wagha Border from time to time. To the mind of this Court, this is a policy decision exercised by the respondent No,1 which does not call for interference by this Court.
13. The petitioner has also stated that the import of CO2 from India through Wagha Border is causing serious compromise to the quality of CO2, rendering it unfit for human consumption.
Nothing has been brought on record to show how the petitioner has come to this conclusion that the CO2 which is imported is unfit for human consumption. The petitioner has also stated that the import through Wagha Border is not desirous because there are no testing, storage or transportation facilities available at Wagha Border. Learned counsel for the respondent No,12 has ably articulated the manner in which CO2 is tested as per ISBT standards and guidelines and she has been able to show to the Court that the so called testing facilities, the petitioner alleges are not available at Wagha Border or any other Port in Pakistan. The respondents Nos.6 to 12 purchase CO2 in India from their approved vendors to ensure that the CO2 is ISBT compliant and the respondent No,3 as per the statement made by its Director does not certify the standard of CO2 imported into Pakistan. The respondent No,3 only provides specification for carbonated beverages. However, they do not regulate the standard or quality of the CO2 itself, hence neither the respondent No,1 nor the respondent No,2 have any prescribed standard for checking the quality of the CO2. In terms what has been stated before this Court when CO2 arrives at the Wagha Border the respondents themselves through their own testing mechanism test the CO2 imported for their own convenience and record. The respondent No,2 may test the CO2 imported only to verify that it is CO2 that has been imported and nothing else. However, other than that there is no mechanism or standard prescribed on the basis of which testing can be done at Wagha Border or elsewhere. Hence this contention of the petitioner is contrary to the facts and record. It also noted from what has been stated by the respondents that there is no storage facility required by the respondents Nos.6-12 because the CO2 is transported in cryogenic tanks which are directly transported to the end users.
Again it has been brought to the notice of this Court that if at all, any storage is required it will be provided by the respondents Nos.6 to 12 themselves for their own convenience. Hence there is no merit in this contention raised by the petitioner. After hearing the parties on these issues, I am of the opinion that the petitioner has raised incorrect grounds before this Court on the basis of which it seeks a declaration that the respondents cannot import CO2 through Wagha from India. CO2 is not a prohibited or restricted item under the I.P.O., 2013 and it does not require special handling and testing by the respondents Nos.2, 3, 4 and 5. The item is regulated and controlled by ISBT guidelines and the respondent No,3 has no role to play for standardizing its quality or certifying it.
14. In view of the aforesaid, this petition is dismissed.