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TMI Blog2017 (8) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... Under subsection( 1) nothing in the Act would apply to 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. Under clause(b) nothing in the Act would apply to any substance specified or included in the Schedule or any preparation containing any one or more of them, 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 or animal life not useful to human beings. Under subsection( 2) of section 38, the Central Government is authorised to issue notification exempting all or any of the provisions of this Act in case of educational, scientific or research organization engaged in carrying out experiments with insecticides. Subsection( 1) of section 38 which is a general exemption is divided in two parts. Under clause(a), insecticides for household and kitchen purposes etc. are kept out of the purview of the Act. Under clause(b), insecticides intended for the purposes other than agricultural and incidental purposes are exempted such as preventing, destroying, repelling or mitigatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the quantity demanded by the importer. Whereas the data produced by the respondents would suggest, much of the demand was met. Such data picked for a small period without anything further cannot establish mala fides nor lack of it. In any case, policy formation through subordinate legislation is entirely different from its implementation. The former may be perfectly valid whereas the later may be defective. Petition dismissed - decided against petitioner. - Special Civil Application No. 9230 of 2008 - - - Dated:- 27-7-2017 - Akil Kureshi And Biren Vaishnav, JJ. Mr Devan Parikh, Advocate for the Petitioner M/s Trivedi Gupta, Advocate for the Respondent JUDGMENT ( Per : Honourable Mr. Justice Akil Kureshi ) 1. This petition is filed by All India Ceramic Glaze and Glass Frit (Mixture) Manufacturing Association and its members (hereinafter referred to as the Association ). The petitioners have challenged a notification dated 7.4.2006 under which by amending the ScheduleI (Imports) of the ITC(HS) Classifications of Export and Import Items, 2004-2009, the import of boric acid for non insecticidal purposes was made subject to import permit issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o registration by importers prior to import of Boric Acid be enforced and accordingly the customs authorities be asked to verify the registration of the importers prior to clearing of import consignments. 4. Once again on 7.6.2004, Borax Manufacturers Association of India wrote to the Ministry of Agriculture in which it was stated as under : Therefore, it is humbly submitted that the provisions under Section 9(3) T I of the Insecticides Act relating to registration by importers prior to import of Boric Acid be enforced and the already framed guidelines by RC in 124th /211th meeting (guide lines for issue of Registration permit/License/ Import Permit for Industrial Use/Non Agricultural/ public health purposes) may kindly be amended and a mandatory requirement be made for obtaining the required Registration for Importsince all the end uses of Boric Acid in various industries are only due to its Insecticidal/Herbicidal/Fungicidal property. Accordingly, fresh guidelines, applicable from 1st April, 2004, may kindly be issued for obtaining Registration for import of Boric Acid as has been done for many other similar cases like Pheromones PBRopel, BTI, Trichoderma, Neem e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exim Code Item Description Policy Policy Conditions 28100020 Boric Acid Free Import of Boric Acid for noninsecticidal purposes will be subject to an import permit issued by the Central Insecticide Board Registration Committee under the Ministry of Agriculture. 8. According to this amendment, boric acid which was till then under free import policy and subject to no condition, was made subject to the condition that its import for non insecticidal purposes would be subject to an import permit issued by the Central Insecticide Board and Registration Committee under the Ministry of Agriculture. This notification, the petitioners have challenged in this petition. Their grievance is that the notification was issued by the Government of India to favour the manufacturers of boric acid in India on representations made by them. The users of boric acid for non insecticidal uses such as the petitioners are not allowed to import the full requirement of boric acid forcing them to purchase from the local market. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substance and on consideration of such factors, actual quantity of import is allowed. It is further pointed out that in the year 2006-2007, import of boric acid was approximately 53.4% of the domestic demand which would mean that major part of the demand is met through imports. 10. The private respondents who are the local manufacturers of boric acid have also highlighted the nature of toxicity of substance and need for regulations on imports. It is contended that it was found that some of the importers were importing pesticides illegally by using chemical names in order to evade restrictions or prohibition under various laws. Boric acid also has various names and there is possibility of misdeclaration. The Central Board of Excise and Customs therefore, issued circular dated 9.8.2011 providing that all pesticides listed in the Schedule of the Insecticides Act require registration and permit from the Registration Committee. Respondent no.7 along with affidavit dated 15.6.2017 has produced the details of import permits issued in the year 20152016. This data shows that for the year 2015, total quantity of boric acid for import recommended in case of various local users was 24,469 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, unreasonable and ultra vires. The Government of India did not have powers to regulate the imports of boric acid for non insecticidal uses on the premise that such imports may harm the health of humans, animals or the environment. Far more toxic or poisonous substances are allowed to be imported freely without any restrictions. iv) The non insecticidal uses of insecticide cannot be regulated by the Insecticides Act, 1968, since by virtue of section 38 of the Act, such substance would be outside the purview of the Act. The Ministry of Agriculture therefore, had no authority to supervise the imports of such substance for non insecticidal use. v) Counsel would submit that local manufacturers are subjected to no control. Though the Government of India agrees that such units should be registered under the Insecticides Act, 1968, for long this policy has not been enforced. 12. In support of his contention that the subordinate legislation does not enjoy the same level of immunity as the legislation of the Parliament or the State Legislature, the counsel relied on the following decisions : a) In case of A. Satyanarayana and others v. S. Purushotham reported in (2008) 5 Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India v. Feroke Boards Ltd. and others (WA. No.630 of 2012, judgment dated 3.6.2014), in which Division Bench has upheld the Government of India policy. It was pointed out that the review petition filed by the original petitioners came to be dismissed by judgment dated 28.2.2017. 14. Learned counsel Shri K.S. Nanavati for the private respondents also opposed the petition contending that it was well within the purview of the Government of India to amend the Import-Export policy and regulate the imports of boric acid. All insecticides other than boric acid are also subjected to similar control regulations. Our attention was drawn to Schedule I to the import policy in this respect. He also relied on the policy conditions under Chapter 38 of Schedule I to the Import Policy [ITC (HS), 2017], portion of which we have reproduced earlier which clarifies that in cases where the insecticide is imported for noninsecticidal purpose, an import permit is necessary from the Registration Committee under the Department of Agriculture and Cooperation and no insecticide can be imported from a source other than that specified on the certificate of registration or the permit, as the case may be. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfringes Art.14 of the Constitution or some other fundamental rights. No such question has how. ever been raised in the present case. The attack on the validity of Para. 6(h) of the Imports Control Order, 1955, therefore, fails. The contention that s. 3 of the Imports and Exports Control Act, 1947, is bad to the extent that it permits the government to make an order as in Para. 6(h) of the Imports Control Order, 1955, consequently also fails. Reliance was placed on decision in case of Abdul Aziz v. State of Maharashtra reported in AIR 1963 Supreme Court 1470 in which it was observed that powers conferred under section 3(1) of the Imports and Exports (Control) Act is not restricted merely to prohibiting or restricting imports at the point of entry of goods into the territory of India but extends also to controlling the subsequent disposal of the goods imported. It was further observed that it is for the appropriate authority and not for the Courts to consider the policy, which must depend on diverse consideration to be adopted in regard to the control of import of goods. 15. In order to judge the rival contentions, we may notice the relevant statutory provisions. The Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act pertains to grant of license. Subsection( 1) thereof requires that any person desiring to manufacture or to sell, stock or exhibit for sale or distribute an insecticide or to undertake commercial pest control operations with the use of any insecticide, he may make an application to the licensing officer for the grant of a license. Under subsection( 3) of section 13, the licensing officer may grant license in such form or on such condition as may be prescribed. Under section 20 of the Act, the Central Government or a State Government may appoint requisite numbers of inspectors. Section 21 of the Act lays down powers of Insecticide Inspectors which include the power to enter and search any premises which he has reason to believe that an offence under the Act or the rules, has been or is being or is about to be committed or for the purpose of satisfying himself that the provisions of the Act or the rules or the conditions of any certificate of registration or license are being complied with. Section 27 of Act pertains to prohibition of sale etc. of insecticides for reasons of public safety. Under section(1) of section 27, if the Central Government or the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distribution or use of the insecticide or batch of it, where in the opinion of the Government use thereof is likely to involve such human risk or risk to animals as to render it expedient or necessary to impose such immediate ban pending such investigation. Offences have been prescribed under section 29 of the Act. Special Courts could be set up for speedy disposal of such cases. 18. Having made these provisions, the legislation framed section 38 providing for exemptions. Under subsection( 1) nothing in the Act would apply to 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. Under clause(b) nothing in the Act would apply to any substance specified or included in the Schedule or any preparation containing any one or more of them, 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 or animal life not useful to human beings. Under subsection( 2) of section 38, the Central Government is authorised to issue notification exempting all or any of the provisions of this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s examine how they apply to the facts of the case. We may recall the petitioners have challenged the notification dated 7.4.2006 issued by the Government of India, Ministry of Commerce and Industry, under which, the import of boric acid is made subject to the condition that the same would be on an import permit issued by the Central Insecticide Board and Registration Committee under the Ministry of Agriculture. This notification is sought to be challenged principally on three grounds namely, that it is not within the purview of the Ministry of Agriculture under the Insecticides Act to regulate the import of pesticides for non insecticidal purposes; that the condition is imposed at the behest of local manufacturers to benefit them and the same is therefore, wholly mala fide and lastly, that such condition was even otherwise arbitrary, unreasonable and not within the powers of the Government of India to impose. 21. We have noticed that the Insecticides Act, 1968, makes detailed provisions for controlling and regulating the use of insecticides. Application of these provisions however, has been by virtue of exemption clause contained in section 38, limited to the insecticides meant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and environment. Even when therefore, such boric acid is imported for non insecticidal purposes, it is important that its handling, storage and usage is properly carried out. Further, uncontrolled or unregulated import of boric acid ostensibly for the purpose of non insecticidal use may also lead to possible pilferage and diversion for insecticidal use. In this context, judgment of Central Insecticide Board and Registration Committee, as to the requirement of import of boric acid for its non insecticidal purposes, would be crucial. 22. To reiterate, the Insecticides Act, 1968 makes detailed provisions for regulation and control of any insecticides including boric acid for the purposes of insecticidal uses. Its manufacture, trade, storage etc, can be subject to control and supervision. Section 38 of the Act when exempts all uses of insecticides for non insecticidal purposes from the provisions of the Act, would still leave the residual power in the Ministry of Agriculture to ensure that use of the substance is actually being made for non insecticidal purposes and not for insecticidal purposes. 23. Looked from any angle, the impugned notification issued by the Government of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are genuinely intended for non insecticidal purposes are taken out of the purview of the Act and the restrictions and controls are which are provided therein. It is in this context when the importer of boric acid is not able to establish the end use it is not open to the trader to say that he should be allowed to import boric acid ostensibly for non insecticidal purposes. It is fraught with the danger that the imported quantity is diverted for insecticidal purposes. If such diversion happens, certainly it could lead to a situation where the purpose of the Act itself would be defeated as there could be large quantities of insecticides haying multipe uses being imported in the guise of being employed for non insecticidal purposes but falling into the hands of those who use it as insecticides. Insecticides being used as insecticides forms the subject matter of the Act. It is such insecticides which are sought to be brought under the control of the Act. As far as the multiple use of insecticides are concerned, since they are capable of being used both as insecticides and for other purposes, control over their import is found necessary by the Government. When such control is exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India was activated into action on the representations made by the local manufacturers of boric acid. That by itself however, would not necessary imply mala fide. In a democratic form of governance, the administration is always open to representations from the various quarters. If a certain relevant fact is brought to the notice of the administration through representation from a particular quarter, and if such representation is taken into account even for framing the policy, such policy cannot be tainted as mala fide without there being anything more on record. The Government of India has pointed out that such import conditions are applied since year 1991. It is also pointed out that not only the boric acid but all other insecticides are subject to similar regulatory measures. There is nothing peculiar about import of boric acid. 29. The petitioners as well as the private respondents i.e. the local manufacturers of boric acid have presented different data of import permission sought and granted. These figures show a huge cleavage. The data produced by the petitioners would suggest permission was granted for a small proportion of the quantity demanded by the importer. Whereas t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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