R.B. AVARI & CO. (PVT.) LTD., KARACHI through Director VS FEDERATION OF PAKISTAN through Secretary, Revenue Division, Central Board of Revenue, Islamabad, 2006 PTD-KARACHI-HIGH-COURT-SINDH 1609 (2006)

Customs Act (IV of 1969)---

----Ss.79, 80 & 83(1)---Agricultural Pesticide Ordinance (II Of 1971), Ss.5, 6, 7, 8 & 9---Agricultural Pesticide Rules, 1973, R.9-A---Poisons Act (XII of 1919), Ss. 3 & 5---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Import- of pesticides---Refusal of Director General, Ministry of Agriculture to renew certificate for import of pesticide for not being registered abroad---Refusal of Customs authorities to release consignment for want of NOC/Registration Certificate from Director General Agriculture---Validity---Before renewal of certificate of import, factual probe would be required in accordance with provisions of R.9-A of Agricultural Pesticide Rules, 1973---Petitioner was neither given personal proper hearing nor confronted with information received by Director General from Australia and China, on the basis whereof renewal of certificate was refused---Agricultural Pesticide Ordinance, 1971 was in addition to and not in derogation of provisions of Ss.3 & 5 of Poisons Act, 1919, which had not been considered at all---Director General was required to pass a speaking order---High Court set aside order of Director General rejecting renewal of certificate for import of pesticide registered abroad with directions to him to decide such. issue after conducting a fresh probe into entire matter and considering documentary evidence and details as required under R.9-A(5) read with sub-rules (1) to (4) of R.9-A of Agricultural Pesticide Rules, 1973 and proof of compliance of conditions specified in Form-17 of the Rules furnished by petitioner and confronting petitioner with information received from Australia and China and examine the provisions of Ss.3 & 5 of Poisons Act, 1919 and notification/Rules, if any made thereunder.

Aziz A. Shaikh for Petitioner.

Syed Tariq Ali for Respondents Nos.1 and 3.

Raja Muhammad Iqbal for Respondent No.2.

Date of hearing: 29th March, 2006.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Briefly stated the relevant facts as stated in the memo. of petition are that the petitioner a Private Limited Company engaged in the import and distribution of pesticides and weedcide got a weedcide under the brand name of "LASHER 25% WP" registered in its name. Certificate was issued in this behalf by respondent No.3 on 30-1-1996 and renewed in 1999. Lastly it was renewed on 14-11-2002. The "certificate for import of pesticide registered abroad", dated 14-11-2002 shows that the certificate was valid up to 28-2-2003. However, the case of petitioner is that the registration was valid for a period of three years.

According to petitioner it established an irrevocable L/C on 25-10-2005 for import of 3000 Kgs. weedcide of brand name "LASHER 25% WP" from China. The consignment arrived at Karachi Sea Port on 6-12-2005 and was assessed by the Customs officials under HS Code 3808.1060 at declared value and the duties and taxes were paid, but the release of consignment was detained for want of NOC from the respondent No.3, the Director General Plant & Protection, Ministry of Food, Agriculture & Live Stock, Jinnah Avenue Malir Halt, Karachi. It is contended that after payment of duties and taxes, the customs official could not detain the consignment. According to petitioner it ought to have been released on furnishing an undertaking to the effect that the required NOC shall be submitted within 60 days. It is further alleged that the imported product is registered under Agricultural Pesticide Ordinance, 1971 and the renewal of application of the petitioner dated 15-10-2005 is pending with the respondent No.3. It is averred that in gross violation of sections 5, 7 and 8 of the Agricultural Pesticide Ordinance, 1971 and Rules 4, 5 and 9 of the Agricultural Pesticide Rule, 1973, the respondent No.3, vide their letter dated 22-12-2005 showed their inability to issue NOC stating that `LASHER 25% WP' is not registered in favour of petitioner's Principal Messrs Hubei Sanonda Co. Ltd., China.

It is urged in the grounds as follows:---

(1) That the weedcide under reference is importable as it was registered by the respondent vide certificate of import of pesticide, dated 14-11-2002 and therefore, the respondent No.3 was bound to grant NOC in pursuance of Appendix-B to Import Policy Order, 2005-2006 read with sections 5, 7 and 8 of the

Agricultural Pesticide Ordinance, 1971 and the rules made thereunder.

(2) There is no provision in law for issuance of any NOC other than the registration of the pesticide under Agricultural Pesticide Ordinance, 1971 and the pendency of renewal of registration being a procedural formality does not constitute sufficient cause to deprive the petitioner to hold and enjoy its property lawfully imported.

(3) The respondent No.3, has been granting NOC for all pesticide/weedcide registered in Pakistan and therefore, the refusal to issue such NOC to the petitioner is discriminatory.

(4) The respondent No.2, has been granting conditional release of registered pesticide/weedcide after collecting duty and taxes thereon subject to undertaking that the NOC or renewal of registration shall be completed within 60 to 90 days. The petitioner was entitled to same treatment.

(5) Before grant of registration of product under Agricultural Pesticide Ordinance 1971, the detailed inquiry pertaining to the efficacy and efficiency and its effect on health are made. Subsequent changes in manufacturing or transfer of the country of origin does not adversely affect on its registration in Pakistan.

Reliance has been placed in this behalf on sections 8 and 9 of the Agricultural Pesticide Ordinance, 1971, which read as follows:-

"8. Renewal of Registration.---(1) The Federal Government may, on the application of the importer, manufacturer, formulator, vendor or stock-holder of a registered pesticide in the guarantee of ingredients of which to change has taken place since the date of its registration, renew the registration of the (pesticide) for all further period of three years.

(2) an application under subsection (1) shall be in such form and be accompanied by such fee as may be prescribed and shall be made before the expiration of the period for which the registration of (pesticide) to which it relates is effective.

9. Importation may be prohibited.---If any pesticide imported into Pakistanis found to be adulterated or incorrectly or misleadingly tagged, labelled or named, or if its sale in any way contravenes any of the provisions of this Ordinance, the Federal Government may, by notification in the official Gazette, prohibit the further import of the pesticide into Pakistan."

(6) The release of the consignment cannot be with held for want of NOC or pendency of renewal of the registration as L/C was established in October 2005 and the cancellation of registration of product was communicated to the petitioner on 28-12-2005.

(7) The registration could not be cancelled without affording opportunity to the petitioner.

Further reliance is placed on section 7 of the Agricultural Pesticide Ordinance, 1971, which reads as follows:---

"7. Cancellation of Registration.---If, at any time after the registration of a pesticide, the Federal Government is of opinion that the registration has been secured in violation of any of the provision of this Ordinance or the rules or that the pesticide is ineffective against pests or hazardous to vegetation, other than weed, or to human or animal life, the Federal Government may, after giving to the person on whose application it has been registered an opportunity of being heard, cancel the registration."

The petitioner has sought a direction to the respondent No.2 for release of the consignment after collection of leviable duty and taxes thereunder if any and upon furnishing an undertaking by the petitioner for producing NOC from respondent No.3, within 90 days of the release of the consignment. Further direction to respondent No.3, has been sought for granting NOC for release of weedcide imported by the petitioner. Another direction has been sought respondent No.3, to grant renewal of the registration of weedcide namely, "LASHER 25% WP" originally registered in the name of petitioners in the year 1996 and subsequently renewed. A declaration has been sought that the cancellation of registration in favour of petitioner is void and illegal. Another declaration has been sought to the effect that the detention of the consignment for want of NOC is illegal as L/C was established by petitioner in October 2005 prior to the cancellation of the registration.

In the parawise comments filed on behalf of respondent No.2, it is contended that under the Import Policy Order 2005-2006 the import of pesticide and weedcide is subject to the provisions contained in Agricultural Pesticide Ordinance, 1971, and the rules framed thereunder. It is further contended that the correspondence between the petitioner and the respondent No.3 indicates that the petitioner had no valid NOC/Registration Certificate and therefore, the respondent No.2, is not empowered to allow importation/release of the pesticide/weedcide. It is averred that the petitioner's GD has been completed in terms of sections 79 and 80 of the Customs Act, 1969, however, the release has been withheld under section 83(1) which provides that after payment of import duty and other charges the appropriate officer if satisfied that the import of goods is not prohibited or in breach of any restrictions or conditions applying to the import of such goods, may make an order for the clearance of the same.

We have heard Mr. Aziz A.. Shaikh, learned counsel for the petitioner, Mr. S. Tariq Ali, learned Federal Counsel for the respondent Nos.l and 3 and Mr. Raja M. Iqbal, learned counsel for respondent No.2.

Although in the memo of petition, the petitioner has averred at more than one places that the NOCs were issued earlier by the respondent No.3 and has even sought a direction to the respondent No.3 for issuance of NOC but the learned counsel for petitioner has vehemently argued that no NOC, is required for import or release of the consignment. He has submitted that in section 4 of the Agricultural Pesticide Ordinance, 1971, it is provided that no person shall import, manufacture, formulate, sell, offer for sale, hold any stock for sale, or in any manner advertise any pesticide which has not been registered in the manner provided by this Act or the rules framed thereunder. He has also referred to the proviso to section 4, according to which the Federal Government may, by notification in the official Gazette direct that the pesticide specified in the notification and not having a trade name will be imported only by a class or classes of importer as specified; except a pesticide having a trade name and registered in the country of manufacture which may be imported without undergoing the registration process but subject to the conditions notified from time to time by the Federal Government` He has further submitted that the pesticide/ weedcide imported by the petitioner is branded and registered in the country of manufacture, therefore, no registration is required. He has further referred to Rule 9 of the Agricultural Pesticide Rules, 1973, which provides that subject to Rule 9-A, no pesticide, except for experimental purposes shall be imported into Pakistan unless it has been registered under Rule 4. He has thereafter referred to section 5 of the Agricultural Pesticide Ordinance, 1971, which provides that any person intending to import, manufacture, formulate, sell, offer for sale, hold in stock for sale or advertise any pesticide may apply to the Federal Government for the registration of the pesticide under such name as he may indicate in the application. He has then referred to the provisions contained in Rule 4 of the Agricultural Pesticide Rules, 1973, which prescribes the procedure for registration of pesticide, under section 5 of the Agricultural Pesticide Ordinance, 1971.

Mr. Aziz A. Shaikh, has thereafter urged that under Rule 9-A, all importers desirous to import any pesticide not having a trade name may apply Federal Government for permission to.make such import. He contended that the petitioner is not required to comply with the requirements of Rule 9-A(l) also because it is governed by Rule 9-A(5) which provides that in the case of imports of pesticide registered in the country of manufacture, and not registered under Form-1 or Form-16 in addition to the conditions specified in sub-rule (1) to sub-rule .(4), the importers shall comply with the conditions specified in Form-17 and shall, for the purpose of verification of quality of pesticides, submit:

(a) Documentary proof of the pesticide's 'registration in the country of manufacture;

(b) proof of use of the pesticide in any member country of the Organization for Economic Cooperation and Development and (OECD) or China;

(c) documentary proof of the said pesticide's extensive use on relevant crop and its pests in the country of origin or any other country specified in clause (b).

Mr. Aziz A. Shaikh, has further submitted that all these documents were furnished by the petitioner to the respondent No.3, whereafter the certificate of import of pesticide registered abroad was issued in the year 1996 which was renewed on 22-1-1999 and finally on 14-11-2002. He has further submitted that before the expiry of certificate for import of pesticide registered abroad in Form 17 under Rule 9-A(5) of the Agricultural Pesticide Rules, 1973 on 19-1-2005, the petitioner applied for renewal of the certificate.

Mr. Aziz A. Shaikh, after producing a bulk of correspondence has contended that the certificate of import was wrongly cancelled by the respondent No.3 and therefore, they may be directed to renew the certificate of import and the respondent No.2, be directed to immediately release the consignment.

On the other hand, Mr. Tariq Ali, the learned Federal Counsel has submitted that the certificate of import of pesticide registered abroad was lastly renewed on 14-11-2002 which was valid up to 28-2-2003 as shown in the certificate itself produced along with the petition as Annexure A-29. He has submitted that this certificate was never cancelled as alleged. It expired after the validity date and thereafter it was not renewed for the reason that it was obtained by making a mis statement. He has referred to the documents produced along with the petition. He has pointed out that after expiry of the certificate of import on 28-2-2003, the petitioner applied for renewal. He has referred to the letter dated October 20th 2003 written on behalf of the petitioner to the respondent No.3, stating therein that the copy of registration certificate from Sanonda (Australia) Private Limited, was being submitted and requested that in the certificate of import dated 14-11-2002 the country of manufacture was shown as China and in the letter dated October 20th 2003 the country of manufacture was shown as Australia. The Respondent No.3, vide letter dated 16-12-2003 asked the petitioner to provide registration certificate of `LASHER 25% WP' registered in Australia along with the approved level of the product verified by the relevant authority. The petitioner in their letter dated 26-12-2003 replied that they already filed the original registration certificate. However, the renewal fee and the original registration certificate were filed by the petitioner vide their letter dated March 11th 2004 and filed the original label vide their letter dated may 13th 2004. Mr. Tariq Ali further referred to the various letters written by the petitioner to the respondent No.3, taking different pleas. He has pointed out that in some letters it was stated that the country of manufacture is China and others it was stated that the country of manufacture is Australia. He has further pointed out that ultimately the certificate of import was not renewed for the reason that the LASHER 25% WP was not registered in favour of Messrs Hubei Sanonda Co. Ltd. in China as well as in Australia and that the earlier import permission certificate was secured on the basis of documents declared as fake by (ICAMA) China.

Mr. Tariq Ali, learned Federal Counsel submitted that it has been wrongly alleged that previously NOCs were issued in favour of petitioner or that certificate of import of pesticide was cancelled but in fact it expired and the renewal has been refused. He submitted that since the certificate of import was not cancelled therefore, the provisions contained in section 7 of the Agricultural Pesticide Ordinance, 1971 are not relevant. He further submitted that so far, section 8 dealing with the renewal of registration is concerned, a proper order has been passed as the petitioner failed to satisfy that the conditions for renewal of certificate of import were fulfilled. In the end Mr. Tariq Ali, Maintained that the issue pertaining to the renewal of certificate of import requires factual probe and inquiry which is not possible in exercise of the jurisdiction under Article 199 of the Constitution.

We have carefully considered the contentions raised by the learned Advocates for the parties and entire record available produced before us. We are persuaded to agree with the submission of Mr. Tariq Ali, that before renewal of certificate of import a. factual probe is required in accordance with the provisions contained in rule 9-A of the Agricultural Pesticide Rules, 1973. We further find that no proper personal hearing has been provided to the petitioner and the petitioner has not been confronted with the information received by the respondent No.3, on the basis whereof the renewal of the certificate of import has been refused. We have also found that the Agricultural Pesticide Ordinance, 1971 is in addition to, and not in derogation of, the Provisions of the Poisons Act, 1919, which has not been considered at all.

In the above circumstances, it is held that a fresh probe into the entire matter is required by the respondent No.3, after considering the documentary evidence and details as required under rule 9-A(5) read with sub-rules (1) to (4) of rule 9-A and proof of compliance of the conditions specified in Form 17 furnished by the petitioner and confronting the petitioner with the information received by them from Australia, and China. A speaking order is required to be recorded by respondent No. 3, keeping in view the provisions contained in section 24-A of the General Clauses Act, 1897. We would further like to observe that the contentions raised by Mr. Aziz A. Shaikh, pertaining to the issuance of NOC or cancellation of the certificate of import are without substance as neither any NOC in addition to the certificate of import of pesticide is required to be issued nor the earlier certificate of import in favour of petitioner was cancelled.' It is a simple case of renewal of the certificate of import of Pesticides Registered Abroad, which is to be decided in accordance with the provisions contained in the Agricultural Pesticide Ordinance, 1971, and the rules framed thereunder. We are of the considered opinion that the petitioner has mixed up the issue of Registration of Pesticide dealt with under sections 4, 5, 6, 7, 8 and 9 of the Agricultural Pesticide Ordinance, 1971 and rules 3, 4, 5, 6 and 9 of the Agricultural Pesticide Rules, 1973, with issue of grant of certificate of import of pesticide registered Abroad, dealt with 'under Rule 9-A of the Agricultural Pesticide Rules, 1973, thereby creating an utter confusion worse confounded. The only provision relevant to the issue under consideration is rule 9-A, and all other provisions referred to or relied upon by the learned counsel for the petitioner are not relevant and require no consideration.

For the foregoing reasons, the petition was disposed of by a short order, after hearing the learned Advocates for the parties on 29-3-2006 in the following terms:---

"(i) The order passed by the respondent No.3 rejecting the renewal of Certificate for Import of Pesticide registered abroad is herebyset aside.

(ii) The respondent No.3 shall examine the issue afresh after giving full opportunity to the petitioner to support their request for renewal of the Certificate for the Import of Pesticide registered abroad.

(iii) The respondent No.3 shall consider Rule 9-A of the Agriculture Pesticide Rules, 1973.

(iv) The petitioner shall be provided opportunity for producing the documentary evidence as required under Rule 9-A(5), read with sub-rules (1) to (4) of Rule 9-A and Form-17 of Agricultural Pesticide Rules, 1973.

(v) While deciding the issue, the respondent No.3 shall examine the provisions contained in sections 3 and 5 of the Poisons Act, C 4919 and Notifications/Rules, if any under the said Act.

(vi) The respondent No.3 shall decide the issue within 15 days from today and if the petitioner is entitled for renewal of the Certificate for Import of Pesticide registered abroad under Rule 9-A(5) of the Agriculture Pesticide Rules, 1973 shall issue such certificate, immediately.

By consent it is directed that the petitioner shall appear before the respondent No.3 on 3-4-2006 and produce all documentary evidence in their possession or power on which they place reliance. The respondent No.3 is also directed to submit compliance report to the M.I.T. of this Court within 20 days from today."

These are the detailed reasons in support of the short order dated 29-3-2006.

S.A.K./R-14/KOrder accordingly.