THE HONBLE SRI JUSTICE A. RAMALINGESWARA RAO Writ Petition Nos 25293 of 2014 and batch 10-07-2015 M/s.Saidharani Shakambari Pvt. Ltd. .. Petitioner The Commissioner & Director of Agriculture, Opp: L.B. Stadium, Basheerbagh, Hyderabad, Telangana State... Respondents Counsel for the Petitioner: Sri P. Subash Counsel for the Respondent: G.P. for Agriculture ?. Cases referred: Nil THE HONBLE SRI JUSTICE A. RAMALINGESWARA RAO Writ Petition Nos.25293, 25298, 31181 and 33325 of 2014; 940, 715, 983, 1314, 1347, 1709, 1974, 3020, 3076, 3088, 3172, 3867, 4289, 4823, 5210, 5314, 8869, 8899, 9107, 11660, 12535, 15445, 15705, 15888, 15898, 16862, 16863, 17232, 17301, 17356, 17417, 17795, 17827, 17893, 18019, 18054, 18169, 18180, 18194, 18217, 18398, 18471, 18507, 18523, 18531, 18750, 18772, 18796, 18887, 18920, 18928, 19122, 19128, 19198, 19213, 19232, 19254, 19625, 19786, 19917, 20010, 20133, 20166, 20286, 20403, 20560, 20576, 20595, 20942, 20954, 20977 and 21112 of 2015 Common Order:
These writ petitions relating to the manufacture and sale of bio-products are being disposed of finally by this common order with the consent of both the counsel.
2. Every year, number of writ petitions are being filed on the present issue and this Court passed several orders by giving guidelines.
3. It is stated that the writ petitioners are challenging the action of the respondent-Commissioner and Director of Agriculture, Hyderabad in interfering with the manufacture, storage and sale of bio-products by issuing a Memo No.II (1)2085/2005, dated 21.01.2006. In the letter of even date by the respondent along with the said Memo, it is stated that these products are not covered either under Insecticides Act, 1968 or under Fertilizer Control (Order) Act, 1985. The substance of the Memo is that since these products are not covered under Insecticides Act, 1968 and Fertilizer Control (Order), 1985, the stocking/exhibiting for sale from the licensed premises is not permitted. The petitioners, who are traders of the said bio-products, filed the above writ petitions on the ground that when the activity is not governed by the provisions of the Act, the respondent authorities cannot interfere with the activities of the petitioners.
4. A counter affidavit is filed by the Commissioner and Director of Agriculture, Andhra Pradesh State, Hyderabad stating that in spite of the directions of this Court from time to time, the respondent authorities are not able to regulate/prevent marketing of the bio-products laced with the chemicals which are harmful to growth of the plant, animal and human beings. It is further stated that Sections 19, 20 and 21 of the Insecticides Act and the Rules made thereunder empower the Insecticide Inspectors to search premises, seize documents, stop distribution of sale of insecticides and take insecticide samples for analysis. The directions of this Court are not serving the purpose. Unless the Department has got sample batch-wise either from the manufacturing premises or from the marketing outlets at any point of time, the Department will not get the correct result basing on the analysis report. The Department of Agriculture is analyzing the bio-product samples in National Institute of Plant Health Management, Hyderabad and it was found that several products manufactured by various companies found to be laced with chemical insecticides. It is the responsibility of the manufacturers of the product to declare the contents/composition and its preparation. Though the manufacturers mention that they manufacture herbal products but they have insecticidal properties and therefore, the provisions of Insecticides Act are attracted. Even if it is not figuring in the schedule, it is for the manufacturer to submit proposal to CIB&RC and get it approved after due testing and proof that product had such properties. In order to control the quality of product, it was stated that the following measures are essential: a) to direct the firms to furnish analysis procedure to analyze for the existence of the components mentioned in the composition stated on label. If analysis procedure is provided, the correct composition of the product can be verified. Due to non-submission of analytical procedure, Department of Agriculture with the help of National Institute of Plant Health Management is screening the products for the presence of more than 100 insecticides leading to high expenditure to department during the analysis of samples. b) to direct the firms to pay the cost of the samples for each batch of the product and restrict the quantity to the maximum size of blending vessel. The firm should furnish maximum size of blending vessel to the verifying competent authorities. c) to allow the Department to destroy products after due seizure whenever bio-products are found laced with insecticides included in the Schedule-III of Insecticides Act, 1968 are found in market; and d) in case, insecticides are found during the analysis of product, concerned authorities should be allowed to take criminal action on the erring firms. It is further stated in the counter affidavit that unless the bio-products manufactures/marketers obtain no objection certificate from the respondent authorities for the purpose of manufacturing/sale of their bio-products, these bio-products will cause intolerable health hazards to the plant, animals, human being and environment.
5. A separate counter affidavit is filed by the Commissioner and Director of Agriculture, Telangana State, Hyderabad stating that micro nutrients come under Fertilizer (Control) Order, 1985 and for manufacturing and marketing micro nutrients, the writ petitioners have to take the manufacturing and marketing permission or licenses from the licensing authority, Department of Agriculture as per the provisions of Fertilizer (Control) Order, 1985. It is further stated that unless the alleged bio-products produced by the petitioners are sent for analysis, the presence of Insecticides or chemicals cannot be traced.
6. A perusal of the above stands taken by the respective Governments would show that they themselves are not sure with regard to the application of proper provisions of law to the activity undertaken by the respondents. On the basis of the stand taken by the then Government of Andhra Pradesh, a learned single Judge of this Court disposed of W.P.No.8207 of 2006 and batch by holding as under: In view of the fact that no license is required under the Act for manufacture and sale of bio-products as long as they do not contain any ingredients of insecticide as mentioned in the schedule, i.e., Antagonistic Fungi and Bacteria, respondents cannot interfere with the store, sale and distribution of bio-products belonging to the petitioners. It is needless to say if the bio-products contain any chemical or insecticides which endangers the environment, it is always open for the concerned authorities to take appropriate action against the petitioners-manufacturers and the dealers of the said bio-products, and by the Executive Magistrate in exercise of powers under Section 133 Cr.P.C. Another learned single Judge of this Court disposed of W.P.Nos.13732 of 2006 and 19551 of 2007 and batch through an order dated 14.09.2007, by holding as follows: (a) it shall be open to the petitioners to submit a sample of 5 kg. of each product dealt with by them, together with the corresponding literature, throwing light upon the manufacturing process as well as the contents thereof, to the respondent herein; (b) within two (2) weeks from the date of submission of the samples and the literature by the petitioners, the respondent shall get the same analyzed in a suitable laboratory and intimate the result of the analysis, to the petitioners; (c) in case, the analysis reveals that the products dealt with by the petitioners answer the description of the products mentioned in Schedule-III to the Control Order, the petitioners shall be entitled to deal with the products, only after obtaining licence under the Control Order. On the other hand, if the result is found otherwise, the petitioners shall not be subjected to the regime under the Control Order or the Act; and (d) if the respondent fails to intimate the result of the analysis within two (2) weeks from the date of submission of the samples and the literature, it shall be open to the petitioners to deal with the products, notwithstanding the impugned letter and the memo, as long as the products are not insecticides or chemicals. Through an order dated 28.08.2007, another learned single Judge of this Court disposed of W.P.No.17508 of 2007 and batch with the above observations only when the petitioners therein challenged the Memo dated 21.01.2006. Another order was passed on 01.11.2011 in W.P.No.17337 of 2010 and W.P.No.21550 of 2011 and batch more or less with the same observations.
7. In spite of the above orders, the filing of cases before this Court arising out of interference by the respondents did not cease. As stated by the Commissioner and Director of Agriculture, Andhra Pradesh and Telangana States, Hyderabad in the counter affidavits filed in the batch of cases, it appears that the petitioners as well as respondents are not clear with regard to the rights and jurisdiction over the alleged bio-products. Hence, it has become necessary for this Court to re-visit the issue and conclusively decide the points raised in the above batch of cases.
8. The points that arise for consideration in this batch of writ petitions are (i) whether the petitioners can manufacture/storage/ market the products in the name of bio-products without disclosing the contents thereof; (ii) whether the respondents can interfere with such activity without any authority of law; and (iii) is there any provision that is attracted in the case of products which are called bio-products?.
9. There are two categories of bio-products viz., conventional bio-products and emerging bio-products. The emerging bio-products or bio-based products include bio-fuels, bio-energy, starch-based and cellulose-based ethanol, bio-based adhesives, bio-chemicals, bio-plastics etc. The emerging bio-products are active subjects of research and development. Bio-resource engineering is related to the applications of biological engineering, chemical engineering and agricultural engineering usually based on biological and/or agricultural feedstocks. The agricultural and bio-resource engineers develop efficient and environmentally sensitive methods of producing food, fiber, timber, bio-based products and renewable energy sources. The bio- resource engineering is more general and encompasses a wider range of technologies and various elements such as biomass, biological waste treatment, bio-energy, bio-transformations and bio-resource systems analysis, and technologies associated with thermo chemical conversion technologies; combustion, pyrolysis gasification, catalysis etc.
10. Organic certification addresses a growing worldwide demand for organic food. It is intended to assure quality and prevent fraud, and to promote commerce. While such certification was not necessary in the early days of the organic movement, when small farmers would sell their produce directly at farmers markets, as organics have grown in popularity, more and more consumers are purchasing organic food through traditional channels, such as supermarkets. Hence, there is need for third party regulatory certification. The said certification identifies suppliers of product approved for use in certified operations and for consumers, certified organic serves as a product assurance.
11. So far as India is concerned, APEDA regulates the certification of organic products as per National Standards for Organic Production. The NPOP standards for production and accreditation system have been recognized by European Commission and Switzerland as equivalent to their country standards. Similarly, USDA has recognized NPOP conformity assessment procedures of accreditation as equivalent to that of US. With these recognitions, Indian organic products duly certified by the accredited certification bodies of India are accepted by the importing countries.
12. The Insecticides Act, 1968 was enacted for regulating the import, manufacture, sale, transport, distribution and use of insecticides with a view of prevent risk to human beings or animals and matters connected therewith. It was amended from time to time and lastly in the year 2000. Section 3 (e) of the Act defines Insecticide and it reads thus: (e) Insecticide means,-- (i) any substance specified in the schedule; or (ii) such other substances (including fungicides and weedicides) as the Central Governemnt may, after consultation with the Board, by notification in the official Gazette, include in the schedule from time to time; or (iii) any preparation containing any one or more of such substances. Section 3 (k) defines misbranded, which reads thus: (k) misbranded an insecticide shall be deemed to be misbranded,- (i) if its label contains any statement, design or graphic representation relating thereto which is false or misleading in any material particular, or if it package is otherwise deceptive in respect of its contents; or (ii) if it is an imitation of, or is sold under the name of, another insecticide; or (iii) if its label does not contain a warning or caution which may be necessary and sufficient, if complied with to prevent risk to human beings or animals; or (iv) if any word, statement or other information required by or under this Act to appear on the label is not displayed thereon in such conspicuous manner as the other words, statements, designs or graphic matter have been displayed on the label and in such terms as to render it likely to be read and understood by any ordinary individual under customary conditions of purchase and use; or (v) if it is not packed or labeled as required by or under this Act; or (vi) if it is not registered in the manner required by or under this Act; or (vii) if the label contains any reference to registration other than the registration number; or (viii) if the insecticide has a toxicity which is higher than the level prescribed or is mixed or packed with any substance so as to alter its nature or quality or contains any substance which is not included in the registration. Section 3 (l) defines package, which reads thus: (l) package means a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper, or other thing in which an insecticide is placed or packed. Section 9 deals with the registration of insecticides. Section 13 deals with grant of licence. Section 17 deals with prohibition of import and manufacture of certain insecticides. Section 17 reads thus:
17. Prohibition of import and manufacture of certain insecticides:- (1) No person shall, himself or by any person on his behalf, import or manufacture- (a) any misbranded insecticides; (b) any insecticide the sale, distribution or use of which is for the time being prohibited under Section 27; (c) any insecticide except in accordance with the condition on which it was registered; (d) any insecticide in contravention of any other provision of this Act or of any rule made thereunder: Provided that any person who has applied for registration of an insecticide under any of the provisos to sub-section (1) of Section 9 may continue to import or manufacture any such insecticide and such insecticide shall not be deemed to be a misbranded insecticide within the meaning of sub- section (vi) or sub-clause (vii) or sub-clause (viii) of Clause (k) of Section 3, until he has been informed by the Registration Committee of its decision to refuse to register the said insecticide. (2) No person shall, himself or any person on his behalf, manufacture any insecticide except under, and in accordance with the conditions of, a licence issued for such purpose under this Act. Similarly, Section 18 deals with the prohibition of sale, etc., of certain insecticides and it reads thus:
18. Prohibition of sale, etc., of certain insecticides:-- (1) No person shall, himself or by any person on his behalf, sell, stock or exhibit for sale, distribute, transport use, or cause to be, used by any worker,-- (a) any insecticide which is not registered under this Act; (b) any insecticide, the sale, distribution or use of which is for the time being prohibited under Section 27; (c) any insecticide in contravention of any other provision of this Act or of any rule made thereunder. (2) No person shall, himself or by any person on his behalf, sell, stock or exhibit for sale or distribute or use for commercial pest control operations any insecticide except under, and in accordance with the conditions of, a licence issued for such purpose under this Act. The Act provides for appointment of Insecticide Inspectors and Insecticide Analysts with their powers and procedure for seizure etc. Section 27 deals with prohibition of sale, etc., of insecticides for reasons of public safety and it reads thus:
27. Prohibition of sale, etc., of insecticides for reasons of public safety:-- (1) if, on receipt of a report under Section 26 or otherwise, the Central Government or the State Government is of opinion, for reasons to be recorded in writing, that the use of any insecticide specified in Clause (e) of Section 3 or any specific batch thereof is likely to involve such risk to human beings or animals a to render it expedient or necessary to take immediate action then that Government may, by notification in the official Gazette, prohibit the sale, distribution or use of the insecticide or batch, in such area, to such extent and for such period (not exceeding sixty days) as may be specified in the notification pending investigation into matter. Provided that where the investigation is not completed within the said period, the Central Government or the State Government, as the case may be, may extend it by such further period or periods not exceeding thirty days in the aggregate as it may specify in a like manner. (2) If, as a result of its own investigation or on receipt of the report from the State Government, and after consultation with the Registration Committee, the Central Government, is satisfied that the use of the said insecticide or batch is or is not likely to cause any such risk, it may pass such order (including an order refusing to register the insecticide or canceling the certificate of registration, if any granted in respect thereof) as it deems fit, depending on the circumstances of the case. Offences and punishment are provided in Section 29. The Central Government was given the power to make rules in Section 36. The State Government is also empowered to make rule under Section 37. In accordance with the rule making power, the Central Government made the rules, called the Insecticides Rules, 1971.
13. Apart from the above provisions, there is Insecticides (Price, Stock Display and Submission of Reports) Order 1986 issued under Section 3 of the Essential Commodities Act, 1955 made by the Central Government.
14. In view of the above provisions of law dealing with manufacture and sale of insecticides, it is not open for the respondents to say that the activity indulged by the petitioners in the name of bio-products, but actually containing an insecticide used for supply to farmers cannot be controlled. The respondents can take the aid of above provisions.
15. It is also relevant to notice that in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955, the Central Government made an order called the Fertilizer (Control) Order, 1985. In the said Order, Clause 2 defines certain terms and relevant terms which are necessary for the purpose of our case are extracted as under: (aa) Bio-fertilizer means the product containing carrier based (sold or liquid) living micro-organisms which are agriculturally useful in terms of nitrogen fixation, phosphorus solublization or nutrient mobilization, to increase the productivity of the soil and/or crop. (d) Compound or complex fertilizer means a fertilizer containing two or more nutrients during the production of which chemical reaction takes place. (h) Fertilizer means any substance used or intended to be used as a fertilizer of the soil and/or crop and specified in Part A of Schedule I and includes a mixture of fertilizer [special mixture of fertilizers Bio-fertilizers specified in Schedule III and organic fertilizers specified in Schedule IV].. (k) Granulated mixture means a mixture of fertilizers made by intimately mixing two or more fertilizers with or without inert material and granulating them together, without involving any chemical reaction. (n) Mixture of fertilizers means a mixture of fertilizers made by physically mixing two or more fertilizers with or without inert material in physical or granular form and includes a mixture of NPK fertilizers, a mixture of micronutrient fertilizers and a mixture of NPK with micronutrient fertilizers. (oo) Organic fertilizer means substances made up of one or more unprocessed material(s) of a biological nature (plant/animal) and may include unprocessed mineral materials that have been altered through microbiological decomposition process. (v) Special mixture of fertilizers means any mixture of fertilizers prepared for experimental purposes in pursuance of a requisition made by any person (including a person engaged in the cultivation of tea, coffee or rubber) for sale to that person in such quantity and within such period as may be specified in such requisition.
16. Chapter-II deals with the control of distribution of fertilizers by manufacturer/importer. Chapter-IV deals with authorization or registration of dealers. Chapter-V deals with manufacturer of mixture of fertilizers, organic fertilizers and bio- fertilizers. Restrictions on manufacture, sale etc. of fertilizers is contained in Chapter-VI of the Order. Clause 21 of the Order provides for manufacturers and pool handling agencies to comply with certain requirements in regard to packing and marking etc. They are also supposed to maintain laboratory facilities under Clause 21-A. The disposal of non-standard fertilizers is contained in Clause-23. There are restrictions on sale/use of fertilizers in Clause-25. The State Government is given power to appoint registering authority under Clause-26 and is given power to appoint notified authorities for the specific areas mentioned in Clause 26-A. Clause-27 deals with appointment of Inspectors and their powers are also prescribed in the Act. The Controller is given power to direct the dealers, manufacturers, importers and pool handling agencies to maintain the records. Thus, the Fertilizer (Control) Order, 1985 deals with various aspects of fertilizers.
17. It is not clear from the averments made in the affidavits filed in support of these writ petitions, whether all the petitioners are indulging in similar type of activities or not. It is also not clear whether all the petitioners are manufacturers or dealers in the bio-products. The bio-product is a broad word which may include a bio-fertilizer or some other material substance containing insecticidal properties. But, the product in which the petitioners are dealing is being used in agriculture only. The case of the petitioners is that in the absence of any law, the respondents cannot interfere with their activities, whereas, the respondents state that in the absence of any information furnished by the petitioners, they are handicapped in regulating their activities.
18. In the said circumstances, this Court cannot hold that the activities of the petitioners and the interference of the respondents are totally illegal. A balance has to be maintained in the facts and circumstances of the case, but such balance must have the sanction of law. The existing provisions are the provisions of Insecticides Act and Fertilizer (Control) Order. The provisions of these two enactments are sufficient to regulate the activities of the petitioners. Before taking any action on suspicion, it is necessary for the authorities to take a sample of the product in which the petitioners are dealing. On the basis of such sample only, the respondent authorities can see whether one or the other provisions of the said enactments can be applied. The respondents cannot interfere with the activities of the petitioners without following due process of law. The petitioners are entitled to exercise their fundamental right guaranteed under Article 19 (1)(g) of the Constitution of India, but the said right is subject to a restriction enunciated in the said Article.
19. Keeping in view the above facts and circumstances, all these writ petitions are disposed of with the following directions: i) The petitioners shall not deal with bio-products without maintaining proper packing and marking of the product. The packing of bio-products shall contain the ingredients included in the product, analytical procedure and their percentage. This enables the authority to verify the contents of the product. ii) The manufacturer of every bio-product should intimate the concerned Commissioner of Agriculture with regard to the manufacturing activity undertaken by it with name of the product, process and its content. The Commissioner of Agriculture need not grant any permission and mere information from the manufacturer is enough for this purpose. The Commissioner of Agriculture shall issue an acknowledgement of such information. iii) The dealer of bio-products should have the information with regard to the source of purchase of bio-products and shall maintain a register for the said purpose in order to enable the authorities to inspect the stock from time to time. iv) It is for the authorities to inspect the bio-products in the location of the manufacturer prior to its despatch to the dealer or in the location of the dealer and take sample thereof in order to verify whether any such product contains harmful substances attracting the provisions of Insecticides Act, 1968 or used as a fertilizer violating the provisions of Fertilizer (Control) Order, 1985. The sample of the product shall be collected from the said source by the authorities under the signature of the persons dealing with bio-products and the authority who is collecting for the purpose of sending it to the appropriate Laboratory in order to verify the contents of the said product. v) From a copy of the report if any prohibited substance is found by the authority, the authority shall issue a notice along with a copy of the report to the persons dealing with the product and take necessary action against such persons either under the provisions of Insecticides Act, 1968 or Fertilizer (Control) Order, 1985. After receipt of the explanation from the person, the authority can pass appropriate orders under the provisions of the said enactments. vi) The report from the concerned Laboratory shall be obtained as expeditiously as possible, preferably not later than a week from the date of collection of the sample and till such time, the concerned authority can withhold manufacture and sale of bio-product. Against the order passed by the authority who collected sample, the aggrieved party can file an appeal to the higher authority as provided in the above provisions if so advised. vii) The collection of samples and the process of passing order shall not be resorted to routinely but should be on credible information that the product is causing damage to the public agriculture activity and on prima facie satisfaction of such information. viii) The respondents shall not violate the law and resort to unnecessary harassment of the manufacturers or dealers in a routine manner. ix) In case of violation of the above directions, it is open to the petitioners to bring it to the notice of the higher authorities of the action of the officers violating the directions, and the higher authority to the authority interfering with the activity of the petitioners shall dispose of the representations with utmost expediency and not later than ten days from the receipt thereof.
20. Miscellaneous Petitions, if any pending in these writ petition, shall stand closed. There shall be no order as to costs. ______________________________ A. RAMALINGESWARA RAO, J Date: .07.2015