ORDER
K.S. Bakthavatsalam, J.
1. The petitioner is a manufacturer of insecticides. The Agricultural Officer (Quality Control) of the office of the Assistant Director of Agriculture, Papanasam, took a sample of Plant Protection Chemical Monocrotophos 35% from the shop of the petitioner's dealer located at No. 37, Gandhi Road, Kumbakonam. Only one sample of the insecticides was taken and sent to the Assistant Agricultural Chemist, Pesticides Testing Laboratory, Aduthurai, for analysis and the Assistant Agricultural Chemist, Aduthurai, submitted his report stating that the contents showed 238 ml. as against 250 ml. declared on the label and his report disclosed that it was 'misbranded'. Based on this report, the first respondent herein, passed the order appealed against, directing the suspension of the manufacturing licence No. 9/1972 of the petitioner for a period of 10 days from 16.12.1990 to 25.12.1990. Against this order, the petitioner preferred an appeal to the appellate authority who is the Director of Agriculture, under the Insecticides Act, 1968 and the appellate authority upheld the order of the original authority. Hence the petitioner is before the court challenging the order of suspension passed by the appellate authority.
2. The petitioner alleges in the affidavit filed in support of the writ petition that the Insecticides Act, 1968 (Central Act No. 46 of 1968) is intended to prevent risk to human beings in the use of insecticides and if the contents of the container is defective in quality, it will come under Section 3(k)(i) of the Insecticides Act, 1968 stating that the article must be deemed to be 'misbranded'. It is also alleged in the affidavit that under Section 3(K)(i) of the Insecticides Act, 1968 (hereinafter referred to as 'the Act') will not apply to a case where the actual quantity found in the container is less than the quantity declared on the label. It is further alleged in the affidavit that Section 19 of the Act provides for the appointment of Insecticides Analysts and the qualification of an Insecticide Analyst is prescribed in Rule 21 of the Rules framed there under. According to the affidavit filed by the petitioner it is stated that the Act and the rules framed there under do not contemplate the Analyst measuring the volume of the insecticide and the report of the analyst is to be sent in Form XI. It is further alleged that 'weights' and 'measures' are matters governed by the Standards of Weights and Measures Act, 1976 (hereinafter referred to as 'The Standards Act') and the Central Government, in exercise of the rule-making power contained in Section 83 of the Standards Act, framed 'The Standards of Weights and Measures (Packaged Commodities) Rules, 1977. It is pointed out in the affidavit that it is only the 'Director' under the Standards Act and any person authorised under Section 29 of the Standards Act who can draw samples and determine the weight of volume (measure) and nobody else can determine the weight or measure. It is also pointed out that the Insecticide Analyst is least qualified to determine the measure and the Insecticide Analyst not being one authorised to determine the weight or measure, the report of the analyst relating to volume is illegal and cannot form basis for any action. It is further alleged in the affidavit that the duties of the insecticide analyst under Rule 23 are to analyse or test and furnish reports or results of such test or analysis the result could only relate to effectiveness and report could only relate to ingredients as also presence of adulterants if any and it is no part of the duty or power of an insecticide analyst to declare the produce 'misbranded' and the report of the Analyst declaring the product 'misbranded' is illegal. It is also pointed out that the appellate authority having found that the material is sub-standard due to volume and not having found the product 'misbranded', ought to have allowed the appeal and set aside the order of the first respondent.
3. Notice of motion has been ordered by me on 9.1.1991.
4. A counter affidavit has been filed by the respondents. It is stated in the counter affidavit that the orders of the first and second respondent are in according with the provisions of the Act and the rules framed there under and they are legally correct. A reference is made to Section 3(K)(i) and Rule 19(v) of the Act. It is further stated in the counter affidavit that Rule 24(2) authorises the Insecticide Analyst to state whether the ingredients as stated on the label are present and in view of the said provision in the Act and Rules, there is clear provision for testing the volumes and weights. It is further stated in the counter affidavit that Section 3(i) of the Act speaks about 'misbranded' and Rule 24(2) does not debar the authorities from checking the volumes and the Insecticide Analyst will analyse the volume content as exhibited on the label and when it is not in consonance with the label, the report has been given as 'misbranded.' It is also submitted in the counter affidavit that during the course of analysis, either weight or measure has to be ascertained to fix quality and lesser weight or measure will necessarily be in lack of quality, disproving the printed information either on the packet or on the container and in such cases, no authenticity to check the weight or measure is needed and when deficiency in volume is found out, it is construed that there will be deficiency in quality also.
5. Mr. S.K.L. Ratan, learned Senior Counsel appearing for the petitioner took me to the relevant provisions of the Act especially Section 19 and Section 24 of the Act apart from Rules 21 to 23 of the Rules framed under the said Act which speak about the qualifications of the Insecticide Analysts and the powers and duties of the Insecticide Inspectors: According to Mr. S.K.L. Ratan, learned Senior Counsel, the Insecticide Analyst has no business to go into the volume of the container and it is not one of his duties enjoined as per the Act and the rules framed thereunder and points out that the Insecticide Analysis are appointed under Section 19 of the Act and the Insecticide Inspectors are appointed under Section 20of the Act. Under Section 24 of the Act, the Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under Sub-section (6) of Section 22, should within a period of sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form. According to the learned Senior Counsel, the reasoning given for suspension of the licence in this case is wholly untenable and the authorities are not empowered to do so under the provisions of the Act and the rules framed thereunder.
6. Per contra, Mr. V. Raghupathy, Additional Government Pleader (Writs) appearing for the respondents, states that under Section 3(k)(i) of the Act if the label-contains any statement design or graphic representation relating thereto which is false or misleading in any material particulars or if its package is otherwise deceptive in respect of its content, it can be called, as 'misbranded' and submits that the insecticide shall be deemed to be misbranded if it comes under various Sub-cluases in Section 3(k) of the Act. Learned Additional Government Pleader also states that since the volume is one of the ingredients and when it is noted that the volume is not correct, the action taken in this case is perfectly valid in law. 7. I have considered the arguments of Mr. S.K.L. Ratan, learned Senior Counsel appearing for the petitioner, and also that of the learned Additional Government Pleader (Writs) appearing for the respondents. On a consideration of the entire facts and circumstances of the case, I am fully satisfied that the impugned order cannot stand for scrutiny even for a minute by this Court. The Insecticides Act, 1968 is enacted to regulate the import, manufacture, sale, transport, distribution and use of insecticide with a view to prevent risk to human beings or animals, and for matters connected therewith. In order to appreciate the contentions of both parties, it is necessary to extract the relevant provisions of the Act. Section 3(e) of the Act reads as follows:
(c) 'insecticide' means: (i) any substance specified in the schedule; or (ii) such other substances (including fungicides and we decides) as the Central Government 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;'
'Misbranded' is defined in Section 3(k) of the Act and so far as the case before me is concerned, it is enough to refer to Sub-cluase (k)(i) which is to the following effect: (i) if its label contains any statement, design or graphic representation relating thereto which is false or misleading in any material particular, or if its package is otherwise deceptive in respect of its contents; or
Section 14 of the Act provides for revocation, suspension and amendment of licences. Section 19 of the Act speaks above the appointment of persons as Insecticide Analysts by the Central or a State Government. Section 20 speaks about the appointment of Insecticide Inspectors. The power of the Insecticide Inspectors are enumerated under Section 21 of the Act. Sub-clause (c) ofSection 21(1) empowers the Insecticide Inspectors to take samples of any Insecticide and send such samples for analysis to the Insecticide Analyst for test in the prescribed manner. Section 24 speaks about the report of the Insecticide Analyst. Section 24(1) of the Act is in the following terms;
(1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under Sub-section (8) of Section 22, shall, within a period of sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form.
Then if we turn to the rules framed under the Act, it is necessary to mention Rules 21 to 23 of the Act which are in Chapter VI of the Rules. The qualifications of Insecticide Analyst are prescribed under Rule 21 and the powers of the Insecticide Analyst are given under Rule 23 and the duties of Insecticide Analyst are given under Rule 23. Rule 23 is as follows:
Duties of Insecticide Analyst:- (1) The Insecticide Analyst shall analyse or cause to be analysed or lest or cause to be tested such samples of Insecticides as may be sent to him by the Insecticide Inspector under the provisions of the Act and shall furnish reports or results of such tests or analysis.
(2) An Insecticide Analyst shall, from time to time, forward to the State Government reports giving the result of analytical work and investigation with a view to their publication at the discretion of the Government.
The procedure to be adopted by the Insecticide Inspector after the receipt of sample is stated in Rule 24. Rule 24(2) speaks as to how the test or analysis has to be carried out by the Insecticide Analyst. After the test of analysis has been carried out under Sub-rule (2) the Insecticide Analyst shall forthwith supply to the Insecticide Inspector a report in triplicate in Form IX of the result of test or analysis. A reading of the provisions of the Act and the Rules framed there under clearly show that the Insecticide Analyst has no jurisdiction to go into the question whether thenet volume as noted in the label is contained in the container. In my view the argument of Mr. S.K.L. Ratan, learned Senior Counsel appearing for the petitioner that the Insecticide Analyst is not empowered to test the volume, as well founded. I do not think the Insecticide Analyst can go into the question whether the contents in the container contains 250 ml. as noted in the label. Just because the container in this case is found to have contained only the contents of 238 ml., it cannot be said that the material was substandard due to the Volume. I am not able to see anywhere in the act that the material can be said to be sub-standard due to the volume. More so, I am not able to accept the contention of the learned Counsel appearing for the respondents that in testing the chemical, the Analyst also tested the volume content in the container which formed one of the parameters of test. The term 'ingredient' which occurs in Rule 24(2) cannot and will not include volume content. I am not able to appreciate the argument of the learned Counsel appearing for the State/respondents that the nett volume has to be taken as ingredient as stated on the label and such an argument does not stand to reason that the ingredient on the label can mean only the ingredient of the insecticide and not what is contained on the label. The statement made in the counter affidavit that under the Rules, the Insecticide Analyst is empowered to check all the ingredients as stated on the label does not at all appeal to me. In the view I had taken that the Insecticide Analyst has no business to go into the volume and took the view that only because of the volume, the materials is stated to be sub-standard, the impugned order is set aside and the writ petition will stand allowed. No costs.