TMI Blog2023 (9) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ Court to reach a fact conclusion whether Ethephon is an insecticide that may not cause any of the specified harm to any form of plant or animal life, generally. Neither the Court is an expert in the science of chemistry or environment, nor it has any expert jurisprudential material available to it as may safely lead it to the conclusion that import and/or manufacture of Ethephon may not cause the effect of preventing or destroying or repelling or mitigating any insect or rodent or fungi or weed or any other form of plant or animal life. 35. A fact enquiry would be required to be conducted before the contention being canvassed by the learned counsel for the petitioner may be accepted. That consideration has become necessary in the face of the claim of exemption set up by the petitioner. That claim must arise and be tested before the fact-finding authority i.e., the statutory authorities. At present, Ethephon being a scheduled commodity under the Insecticides Act, it falls outside the scope of any fruitful discussion if it is an insecticide for the purpose of the Insecticide Act. Clearly, it is. In absence of any further fact proven to establish any exemption available t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agarawal,Sudhanshu Kumar,Swapnil Kumar,Uma Nath Pandey ORDER 1. Heard Sri Pridarshi Manish (through video conferencing) along with Sri Anil Kumar holding brief of Sri Mohit Singh, learned counsel for the petitioner and Sri Krishna Agrawal, learned counsel for the Revenue. None other has appeared in these proceedings. 2. The present writ petition has been filed for various relief described in the Relief clause. However, at present Sri Pridarshi Manish has pressed the prayer nos. B, D, E and F. They read as below: B. Issue a writ, order or direction in the nature of mandamus to the Respondents to release the goods detained at the factory premises of the Petitioner Company; and / or D. Issue a writ of declaration to declare the search conducted at the factory premises, office premises as well as the residential premises of one of the directors of the Petitioner Company is illegal; and/or E. Issue a writ, order or direction in the nature of mandamus to direct the Respondent to release the goods which has been illegally detained by panchanama dated 08.07.2021 (Annexure P- 38); and/or F. Issue a writ, order or directions in the natue of certiorari to set- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for the search. Due to the urgency, learned counsel for the petitioner stated, the challenge to the search is not being pressed as that would involve further delay in adjudication of the dispute pertaining to seizure. Accordingly, prayer no. C and D of the writ petition are not pressed, at this stage, without prejudice to the rights of the petitioner to raise appropriate grounds of challenge (as may otherwise be available), in the statutory proceedings. 5. As to the detention and seizure, first it is the submission of the learned counsel for the petitioner - under Section 110 read with Section 111(d) of the Act, only such goods may be seized and or be confiscated as may have been imported contrary to any prohibition imposed either under the Act or any other law for the time being in force. Referring to the provisions of the Act, it has been submitted that no such prohibition has been imposed either on Ethephon or Ethylene Ripener. 6. Second, referring to the reason given in the seizure order and the provisions of Insecticide Act, 1968 (hereinafter referred to as 'Insecticide Act'), it has been submitted though Ethephon is an insecticide yet there is no prohibitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Here reliance has been placed on the definition of the terms of Insecticide. It has been further emphasized, undisputedly the commodity Ethephon is an insecticide. 11. As to the exemption claimed, it has been submitted that Section 38(1) (b), does not apply to the commodity Ethephon. In any case, it has been submitted that that is a factual claim which would require evidence to be led and facts to be considered by the statutory authorities before any firm conclusion may be drawn. That stage is still open to the petitioner in view of the confiscation proceeding initiated under Section 124 of the Act, being pending. 12. Referring to Section 2(33) of the Act, it has been submitted by virtue of operation of law, noted above Ethephon remains prohibited goods that may be proceeded against under the Act, without any further notification being required in terms of Section 11(3) of the Act. 13. Having heard learned counsel for the parties and having perused the record, Section 110(1) of the Act reads as below: 110. Seizure of goods, documents and things. (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such application at any time thereafter on payment of a penalty of one hundred rupees for every month or part thereof after the expiry of such period for the registration of each such insecticide.] 17. Then, Section 17(1)(c) of the Insecticides Act reads as below: 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) ..... (b) ..... (c) any insecticide except in accordance with the conditions on which it was registered; 18. The term insecticide has been defined under Section 3(e) of the Insecticides Act. It reads as below: 3. Definitions. In this Act, unless the context otherwise requires, (a) ..... (b) ..... (c) ..... (d) ..... (e) Insecticide means (i) any substance specified in the Schedule; or (ii) such other substances (including fungicides and weedicides) 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; 19. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the definition given to that term, under Section 2(33) of the Act. 24. As to the third submission advanced by learned counsel for the petitioner, that Ethephon is exempt from the operation of Insecticides Act, Section 38 of the Insecticides Act reads as below : 38. Exemption. - (1) Nothing in this Act shall apply to - (a) the use of any insecticide by any person for his own household purposes or for kitchen garden or in respect of any land under his cultivation; (b) any substance specified or included in the Schedule or any preparation containing any one or more such substances, if such substance or preparation is intended for purposes other than preventing, destroying, repelling or mitigating any insects, rodents, fungi, weeds and other forms of plant of animal life not useful to human beings. 25. First, by virtue of Section 38(1)(a) the Insecticides Act does not apply to household insecticides or garden insecticides or such insecticides that may be used with respect to land under a persons cultivation. Second, by virtue of Section 38(1)(b), the provisions of the Insecticides Act would not apply to any scheduled commodity or any other commodity containi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sential to human existence. The existence of such interaction, or the perception of its uselessness to human beings or its invisibility to the naked eye would not militate against its inclusion in the list of insecticides whose import and manufacture must be regulated under the Insecticides Act. 30. Though couched in a single sub-Section, Section 38(1)(b) of the Insecticides Act, beautifully encapsulates the ancient Indian tenet Vasudhaiva Kutumbakam . The world we live in, is shared and it belongs to one family i.e. human beings share it will all life forms plant and animal. Just as one may never look to do anything, even inadvertently, that may unduly harm a member of his family howsoever far removed (in degree and distance) the latter may be located, so also human beings (as a species), may not employ insecticides that may cause specified harms to another species of either plant or animal life forms, since we share our wonderful planet with them, even though we may not perceive a direct or visible interaction or inter-dependency with them. So even a simple fungus or an algae, is an important member of our world. In the interest of each life form, any insecticide that may h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ Court to reach a fact conclusion whether Ethephon is an insecticide that may not cause any of the specified harm to any form of plant or animal life, generally. Neither the Court is an expert in the science of chemistry or environment, nor it has any expert jurisprudential material available to it as may safely lead it to the conclusion that import and/or manufacture of Ethephon may not cause the effect of preventing or destroying or repelling or mitigating any insect or rodent or fungi or weed or any other form of plant or animal life. 35. A fact enquiry would be required to be conducted before the contention being canvassed by the learned counsel for the petitioner may be accepted. That consideration has become necessary in the face of the claim of exemption set up by the petitioner. That claim must arise and be tested before the fact-finding authority i.e., the statutory authorities. 36. As early as in Commissioner of Income Tax, Madras vs. R. Venkataswamy Naidu, AIR 1956 SC 522, it came to be settled that the burden to establish an exemption rests on the person who claims its existence. That general principle or rule of evidence was equally applied to taxation laws. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct are pending. Pending those proceedings, we leave the issue of exemption completely open to be contested in those proceedings, solely on the strength of material that may be produced before that authority. 39. Here it may be noted, issuance of notification under other enactments such as the Order dated 20.07.2020 issued by the Food Safety and Standards Authority of India (FSSAI in short) is extraneous to test if Ethephon is exempt under the Insecticides Act or is not prohibited under the Act. Merely because Ethephon is a permitted ripening agent under the Food Safety and Standards Act, 2006 may only lead to an inference that per se, it is not harmful to human health, when used as a ripening agent. Many insecticides are not considered harmful to humans. Yet, they are harmful to other forms of plant and animal life. Precisely, for that reason, the general exemption granted under Section 38(1)(b) of the Insecticides Act is restricted to such insecticides only as may not cause any of the specified harm to any other plant or animal life. 40. The FSSAI established under the Food Safety and Standards Act, 2006 seeks to guard the health interests of the human species only. On the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r class of goods or clearance thereof provided in any other law for the time being in force, or any rule or regulation made or any order or notification issued thereunder, shall be executed under the provisions of that Act only if such prohibition or restriction or obligation is notified under the provisions of this Act, subject to such exceptions, modifications or adaptations as the Central Government deems fit. 45. Plainly, that provision of law has not been enforced. Though inserted by Act No. 13 of 2018 vide Section 59 thereof, it's date of enforcement has yet not been notified. Hence, that provision of law is yet lifeless. At present, the provisions of Section 110 (1) read with Section 111(d) read with Section 2(33) of the Act read with Sections 9 and 17 of the Insecticides Act continue to allow the Customs authorities to proceed under the Act against the import of Ethephon by the petitioner as it did not have the requisite Registration Certificate under the Insecticides Act. To that extent the impugned proceedings are not lacking in inherent jurisdiction. 46. The reliance placed by learned counsel for the petitioner on Kaka Overseas Ltd. Vs. Union of India, 2021 (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not arise here in view of the specific provisions of the Insecticide Act. In Jaymatajee Enterprise (Seller) (supra), challenge was raised to the seizure of betel nuts. Those goods being not prohibited and there being no application of the Insecticide Act, we find that ratio to be wholly distinguishable. 48. In Shivashish Dwivedi (supra), a public interest litigation was filed before the Delhi High Court seeking an injunction against the respondent State from restrain import of artificial fruit ripener. That challenge was declined to be entertained. For ready reference, that order reads as below: This public interest litigation has been preferred with the following as been preferred with the following prayers:- It is, therefore, most respectfully prayed that in view of the aforesaid facts and circumstances, this Hon'ble Court may be pleased to; a) Issue a writ of Mandamus or Certiorari or any other appropriate writ or direction to quash/repeal the Direction dated 16.08.2018 and the guidance note No. 04 of 2018 released by the Respondent No. 1, as illegal and void ab initio; b) Issue a writ of Mandamus or any other appropriate writ or direction to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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