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Judgment
A.K. Sikri, Acting Chief Justice
CM 10173/2012 (delay)
Delay in filing the counter affidavit by the respondent No. 2 is condoned.
CM stands disposed of.
WP (C) 3165/2012
This petition purportedly filed as Public Interest Litigation challenges the vires of certain provisions of the Patents Act, 1970 and Circulars. The prayer clause reads as under:
(a) Declare that Section 107A(b) of the Patents Act, 1970 does not permit parallel imports which are not duly authorized under Indian law; and consequently
(b) Quash the Impugned Circular No. 13/2012-Customs (also numbered as F. No. 528/21039/08-Cus/ICD) titled "Enforcement of Intellectual Property Rights on imported goods - Clarification on the issue of parallel imports-regarding" dated May 8, 2012, issued by the Respondent No. 1 as illegal since it is violative of Sections 48 and 107A(b) of the Patents Act, 1970 and Section 11 of the Customs Act, 1962;
(c) In the interim, stay the impugned Circular until the disposal of the instant Petition.
It is stated by the petitioner that Section 107A(b) of the Patents Act, 1970 permits imports of patented products only from a person who is duly authorized under Indian law. Any import which is sourced from a person who is not duly authorized under Indian law does not receive the benefit of Section 107A(b), and is hence violative of the right of import granted to a patentee u/s 48 of the Act. The impugned Circular issued by the respondent No. 1 in consultation with respondent No. 2 implicitly takes the unqualified and broad position that Section 107A(b) permits all kinds of "parallel imports" i.e. including imports which are not duly authorized under Indian law. Consequently, the impugned Circular runs counter to the legislative intent manifest in Section 107A(b) of the Patents Act, 1970, thereby facilitating infringement of the right of import granted u/s 48 of the Patents Act. Therefore, the impugned Circular is violative of Section 11 of the Customs Act since it facilitates contravention of the Patents Act. In short, the impugned Circular represents an Executive action which overrides the sacrosanct will of the Legislature.
We are afraid such a kind of writ petition cannot be entertained as PIL. The petitioner is trying to advance the cause of those persons who are neither indigent nor illiterate nor vulnerable groups. They are not persons who cannot approach the Court themselves. The persons concerned with such imports, who may be allegedly affected by the aforesaid provisions, are well off importers and, therefore, if there is any grievance of any such person, he can approach the Court.
Moreover, provisions of a particular Statute or Circular which is statutory in nature cannot be challenged in vacuum. We are, therefore, of the opinion that this petition as PIL is totally misconceived and is accordingly dismissed.