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M/s. Jhass Agro Industries, rep.by its Managing Partner, S. Jayachandra Reddy & Others v/s The State of Telangana, rep.by its Principal Secretary, Home Department & Others

    Writ Petition No. 10745 of 2019

    Decided On, 01 July 2019

    At, High Court of for the State of Telangana


    For the Petitioners: V.R. Reddy Kovvuri, Advocate. For the Respondents: G.P. for Home & G.P. Agriculture.

Judgment Text

1. Heard learned counsel for petitioners Sri V R Reddy Kovvuri, learned Government Pleader for Home and learned Government Pleader for Agriculture.

2. Petitioners claim to be involved in producing and marketing of bio-products. On 26.04.2019 raid was conducted by the Quality Control Inspector-cum-Agricultural Officer, Hayathnagar in M/s.Jhass Agro Industries, and M/s. Jass Agri Science premises, M/s. Kinolac Bio Life Sciences located in Sy.No.27 (part), Sai Colony, Hayathnagar, Ranga Reddy district, and seized the stock of three companies, samples of bio-products were collected and sent to DDA-PTL Coding Centre, Malakpet, to assess whether the said products contained pesticides or insecticides. In this writ petition, petitioners challenge the seizure of entire stock.

3. The averments made in the affidavit filed in support of writ petition would disclose that petitioners are engaged in the business of manufacturing, sale and supply of bio-products without usage of any toxic chemicals. According to petitioners, their products enrich the soil and ensure protection of the plants/crops from viral, bacterial, fungus and other infections and also useful for getting more produce of the crop. According to petitioners, there is no requirement to obtain license for marketing of the bio-products. As there is no requirement to obtain license for marketing, though it may be permissible for the competent authority to collect samples, send them to appropriate laboratory to ascertain the content of the products and to take action, they have no power to seize the stock, and therefore action of respondent No.3 in seizing the bio-products, produced and marketed by the petitioners is illegal and contrary to earlier directions issued by this Court in W.P.No.25293 of 2014 and batch, dated 10.07.2015.

4. The Insecticides Act, 1968 (for short, ‘Act, 1968’) was promulgated on 02.09.1968. This Act seeks to regulate import, manufacture, sale, transport, distribution and use of insecticides. Primary objective to regulate is, to prevent risk to human beings and animals. According to section 3(e) of the Act, 1968, ‘insecticide’ means any substance specified in the Schedule; or such other substances including fungicides and weedicides as the Central Government may, by notification in the Official Gazette, include in the Schedule. The definition also includes any preparation containing any one or more of such substances. It vests power in the Insecticide Inspector to enter and search at all reasonable time any premises in which he has a reason to believe that an offence under the Act or Rules made there under has been or is being or is about to be committed, or for the purpose of satisfying himself under that the provisions of this Act or the Rules made there under or the conditions of any certificate of registration or license issued there under are being complied with. On 21.06.2006 the Commissioner and Director of Agriculture issued memo. It appears the memo would hold that products mentioned there under are not covered by the Insecticides Act, 1968 or the Fertilizer (Control) Order, 1985, and therefore stocking/exhibiting for sale from the licensed premises would not be permitted. The memo was challenged in W.P.No.25293 of 2014 and batch. While petitioners claimed that bio-products are not covered by the Act, 1968 and therefore respondents can not interfere with their activities, whereas the stand of the respondents was that in the absence of any information furnished by the petitioners, they were regulating their activities.

5. Batch of writ petitions were heard and disposed of by common order dated 10.07.2015. Three points considered by the learned single Judge were; i) whether the petitioners can manufacture/storage/market the products in the name of bioproducts 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?

6. Having regard to the respective submissions, learned single Judge observed that Court would not hold that activities of the petitioners and the interference of the respondents are totally illegal and that balance has to be maintained in the facts and circumstances of the case. Learned single Judge observed that in view of the provisions of the Insecticides Act and Fertilizer (Control) Order the activities of the petitioners can be regulated. Learned single judge issued nine directions. Suffice to note that in the guidelines prescribed by the learned single Judge, learned single Judge observed that persons dealing in bi-products required to maintain proper packing and marking of the product; the packing should contain ingredients included in the product, analytical procedure and their percentage; that manufacturer should intimate the concerned Commissioner of Agriculture with regard to the manufacturing activity; the dealer of bio-products should have the information with regard to the source of purchase of bio-products and should maintain a register for the said purpose. Court observed that it is for the authorities to inspect the bioproducts, to take samples in order to verify whether any such product contains harmful substances attracting the provisions of the Insecticides Act and the Fertilizer (Control) Order; and issued further directions. The directions would require a person manufacturing/holding the stock to disclose the aspects mentioned above.

7. This judgment in batch of Writ Petitions was challenged in W.A.Nos.1122 and 1236 of 2016. Division Bench observed that though there cannot be an omnibus categorization of all bio-products for the purpose of taking action under the Act, the grounds on which the Insecticide Inspector has reason to believe that insecticides are being sold in contravention of the provisions of the Act and the Rules, would depend upon the facts of each case, and cannot be circumscribed by way of guidelines issued by the Court. Division bench observed that the guidelines prescribed by the learned single Judge can only supplement and not supplant the law, and would remain in force only till appropriate legislation is made. Division Bench observed that the guidelines prescribed in the judgment of the learned single judge would be in addition to, and not in derogation of the powers conferred on the concerned authorities under the Act and the Rules.

8. While so, in the panchanama, it is recorded that on inspection of M/s. Jhass Agro Industries and M/s.Jhass Agri Sciences in D.NO.4-3-105 of Sy.No.27, Sai Nagar Colony, Hayathnagar, it was noticed that products of three companies, petitioners herein, were found. According to the panchanama, the Jassh Agro Industries factory is located in Renigunta, Tirupati in Chitoor district of Andhra Pradesh, but granules produced by the said company is found in the said address. Further, though Jhass Agrl Sciences factory address is the same, but chemistry records, chemistry of machinery and glass wears were not found nor analytical procedures were observed to make the bio-products. Similarly, though M/s.Kinolac Bio Life Sciences factory address is the same, but no production activity was noticed. The samples of bio-products were collected and sent them to laboratory for testing.

9. In the counter-affidavit deposed by the incumbent Commissioner of Agriculture, it is alleged that packing of bio-product is not having analytical procedure. Manufacturing activity is being undertaken in violation of the directions of the learned single Judge and that firms have not maintained sales and purchase registers and failed to produce source of purchase of bioproducts/ raw-materials. What is noted in the panchanama is also reiterated in the counter-affidavit. In addition, it is also contended that in the year 2013, bio-product samples drawn from M/s. Jhass Agri Sciences was found laced with insecticide and action is being taken by the concerned Insecticide Inspector for violating the Act, 1968. These contentions of the respondents are not denied by the petitioners.

10. As briefly noted above, in the judgment of the learned single Judge, dated 10.07.2015, and the Division Bench judgment in W.A.Nos.1122 and 1236 of 2016, the power to inspect and to take consequential steps are held to be valid. Inspection and taking consequential steps are for the purpose of finding out as to whether any bio-product claimed to have been manufactured and/or marketed is laced with pesticides which would be harmful to the human beings as well as plants. Therefore, statutory duty is cast upon the Insecticide Inspector to conduct such inspection and take consequential action. Thus, conducting of inspection on the subject premises, collecting the samples, and sending the samples to laboratory for testing cannot be faulted.

11. Learned counsel for petitioners sought to contend that even assuming the action of the Insecticide Inspector in inspecting, collecting the samples and seizing the stock is valid, but, firstly, he has no power to seize and even if such power is conceded such seizure can be valid only for 30 days. Beyond 30 days continuation of seizure is illegal.

12. On a careful reading of Section 21(1)(d) of the Act, it is seen that there are two components. First one deals with distribution, sale or use. On suspecting of use of pesticides, the Inspector may stop the distribution, sale or use of an insecticide, for a specified period not exceeding 30 days. The second component deals with seizer of stock. No time limit is prescribed on seizure of the stock. Section 22(2) of the Act, 1968 prescribes the procedure to be followed by the Insecticide Inspectors on seizure of stock. This section vests power in the Inspector to revoke the order of seizure, including the return of stock. However, if he seizes the stock, as soon as possible, he should inform the Magistrate and take his orders as to the custody. Petitioners and respondents are silent on steps taken after seizure. As seizure of stock is not laced with time frame and is subject to further steps as required by the Act, decision to seize is not vitiated merely because 30 days lapsed.

13. According to Section 24 of the Act, 1968, the Insecticide Analyst, to whom a sample of any insecticide was sent for test or analysis, shall de

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liver to the Insecticide Inspector his report within a period of 30 days. On receipt of such report, Inspector should furnish one copy of the report to the person from whom the sample was taken and to retain other copy. Thus, Section 24 of the Act, 1968, fixes time limit of 30 days to the Analyst to submit his report. Apparently, so far, report is not submitted. The counter-affidavit is silent as to why report is not secured from the Analyst. In view of the statutory scheme and the guidelines formulated by this Court in the judgment rendered on 10.07.2015 in W.P.No.25293 of 2014 and batch, the action of competent authority in seizing the stock cannot be held as amounting to illegal and arbitrary exercise of power. 14. However, having regard to the mandatory requirements of Section 24 of the Act, 1968, the Commissioner of Agriculture is directed to secure, within two weeks from the date of receipt of copy of this order, the report from the Insecticide Analyst and direct the Inspector to take consequential steps as required by the Act. 15. Writ Petition is accordingly dismissed. Pending miscellaneous petitions shall stand closed.