Gujarat High Court
Paresh Lavjibhai Donda vs State Of Gujarat on 6 September, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/11145/2023 ORDER DATED: 06/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11145 of 2023
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PARESH LAVJIBHAI DONDA
Versus
STATE OF GUJARAT
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Appearance:
MR DILIP L KANOJIYA(3691) for the Petitioner(s) No. 1
MR AYAAN PATEL, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 06/09/2023
ORAL ORDER
Rule returnable forthwith. Mr. Ayaan Patel, learned AGP waives service of notice of rule for and on behalf of the respondent No.1 - State.
1. The petitioner herein is in the business of manufacturing medicines and is holding a valid license for the same issued by the concerned authority. The petitioner has been using only Technical Grade Urea since last 20 years as an agent in manufacturing the medicines.
1.2 On 03.10.2022, a fertilizer allegedly suspected of Neem Coated Urea was drawn/collected by the Agriculture Officer, Surat City - respondent No.2 herein from the premises of the Page 1 of 9 Downloaded on : Sat Sep 16 16:23:38 IST 2023 NEUTRAL CITATION C/SCA/11145/2023 ORDER DATED: 06/09/2023 undefined petitioner and the test of the sample collected from the premises, was undertaken at Fertilizer Testing Laboratory, Bardoli. The report tested positive and the sample was declared non-standard as per the analysis report dated 14.10.2022.
1.3 On 18.10.2022, the petitioner herein was in receipt of notice issued by the respondent No.2 asking the petitioner to reply to the said notice as against the allegation of benzene soluble content. The petitioner replied to the said notice by communication dated 28.10.2022. As the report dated 14.12.2022 was based on false test, the petitioner requested for re-analysis. The said request came to be accepted by the concerned authority vide communication dated 26.12.2022 by the Directorate of Agriculture, Gujarat State, Gandhinagar - respondent No.1 herein. The test was conducted at Fertilizer Quality Control Laboratory and report was submitted to the Directorate of Agriculture where the sample was tested positive of benzene content. The said report is dated 13.04.2023.
1.4 The petitioner wrote a letter to the respondent No.1 pointing out that the test conducted by the authorities were Page 2 of 9 Downloaded on : Sat Sep 16 16:23:38 IST 2023 NEUTRAL CITATION C/SCA/11145/2023 ORDER DATED: 06/09/2023 undefined not in accordance with law and that the sample be re-tested. The said objection raised by the petitioner was came to be rejected by communication dated 16.05.2023. The petitioner herein reiterated the request by communication dated 24.05.2023 placing reliance on the Notification dated 22.03.2018, which is duly produced at Annexure - I. Being aggrieved and dissatisfied by the aforesaid action by the respondent authorities, the petitioner herein was constrained to approach this Court by filing the present petition seeking the following reliefs "a. Your Lordships may Admit and allow the Special Civil Application;
b. Your Lordships may be pleased to issue writ of mandamus or writ in nature of mandamus or any other appropriate writ, order or directions, directing the Respondents to re-test the samples collected from the premise of the Petitioner in accordance with the notification dated 22.03.2018.
c. During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the Respondent authorities to not to take any coercive action against the Petitioner. d. Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
2. Heard Mr. Digant M. Popat, learned advocate with Mr. Dilip L. Kanojiya, learned advocate appearing for the petitioner and Mr. Ayaan Patel, learned AGP appearing for the respondent No.1 - State.
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3. Mr. Digant Popat, learned advocate appearing for the petitioner, at the outset, submitted that the samples which came to be collected by the respondent authority were tested by the Benzene Method which, by Notification dated 22.03.2018 issued by the Ministry of Agriculture (Department of Agriculture and Co-operation) came to be replaced by N - Hexane + Acetone Method. It was submitted that the samples- in-question which were tested twice by the respondent authorities, were in the year 2022 which was subsequent to the Notification issued by the Ministry of Agriculture dated 22.03.2018 and in view thereof, the respondent authorities erred in testing the samples by the method which was discontinued way back by Notification dated 22.03.2018. Mr. Popat, learned advocate, submitted that in view thereof, fresh samples be undertaken by the respondent authority and that the test be undertaken by the N - Hexane + Acetone Method. It was submitted that in view of the aforesaid submissions, the prayers as prayed for in the present petition be allowed.
4. Mr. Ayaan Patel, learned AGP appearing for the respondent No.1 placed reliance on the affidavit-in-reply filed by the respondent authority. Reliance was placed by Mr. Patel, Page 4 of 9 Downloaded on : Sat Sep 16 16:23:38 IST 2023 NEUTRAL CITATION C/SCA/11145/2023 ORDER DATED: 06/09/2023 undefined learned AGP on the minutes of the 5th Central Fertilizer Committee meeting held on 13.03.2018 more particularly, paragraph 4 and placing reliance on the same, it was submitted that the benzene was carcinogen, the same replaced by a N - Hexane + Acetone Method.
5. Considering the submissions advanced by the learned advocates appearing for the respective parties, following emerge for the consideration of this Court:
5.1 The respondent No.2 collected samples on 03.10.2022 with respect to a fertilizer allegedly suspected of Neem Coated Urea. The said samples came to be tested twice by the respondent authority on 14.10.2022 and 13.04.2023. While undertaking the aforesaid exercise, the respondent authority used the Benzene Method. The aforesaid is uncotroverted. 5.2 At this stage, it is apposite to refer to the Notification dated 22.03.2018 issued by the Ministry of Agriculture, which is duly produced on record by the respective parties.
"MINISTRY OF AGRICULTURE (Department of Agriculture and Cooperation) ORDER New Delhi, the 22nd March, 2018 S.O. 1323(E).- In exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 (10 of 1955), the Central Government Page 5 of 9 Downloaded on : Sat Sep 16 16:23:38 IST 2023 NEUTRAL CITATION C/SCA/11145/2023 ORDER DATED: 06/09/2023 undefined hereby makes the following Order further to amend the Fertiliser (Inorganic, Organic or Mixed) (Control) Order, 1985, namely:-
1. (1) This Order may be called the Fertiliser (Inorganic, Organic or Mixed (Control) Second Amendment Order, 2018.
(2) It shall come into force after one year from the date of its publication in the Official Gazette.
2. In the Fertiliser (Inorganic, Organic or Mixed) (Control) Order, 1985 (hereinafter referred to as the said Order), in Schedule I, in Part A, under the heading "Specification of Fertilisers", in sub-heading 1
(a),-
(i) in serial No. 8 relating to Neem coated Urea,-
(a) in item No. (iv), for the word "Benzene", the words "binary mixture of n-hexane-acetone (4:1)" shall be substituted,
(b) after item number (iv), the following shall be inserted, namely:-
"(v) the total meliacin content in the oily residue, per cent. by weight, minimum 1.0.";
(c) for the foot Note and the entry thereunder the following, shall be substituted, namely:-
"Foot note: The term Neem oil means the oil conforming to BIS standards (IS 4765-1975-Rev.1).
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3. In the said Order, in Schedule II, in Part B, in serial number 3 relating to determination of nitrogen,
(i) in item (xvii), in paragraph titled 'Principle', for the word "solvent benzene", the word "a binary mixture of n-hexane and acetone" shall be substituted;
(ii) in paragraph titled 'Reagents' for entry (1), the entry" a binary mixture of n-hexane and acetone" shall be substituted;
(iii) in paragraph (c) "Procedure",-in entry (iii), (iv), (v), (vi), (vii), (viii) and (ix), for the word "benzene", wherever it occur, the word "a binary mixture of n-hexane and acetone" shall be substituted:
(iv) in paragraph titled "Calculation", for the words "Benzene Soluble contents occurring at two places the words "binary mixture of n-
hexane-acetone soluble" shall be substituted:
(v) After item (xvii), the following item shall be inserted, namely:-
"(xviii) Method of Analysis for determination of of Meliacin of Neem Oil in Neem Coated Urea by High Performance Liquid Chromatography Page 6 of 9 Downloaded on : Sat Sep 16 16:23:38 IST 2023 NEUTRAL CITATION C/SCA/11145/2023 ORDER DATED: 06/09/2023 undefined
1. Take 2 kg of Urea sample in 5 ltr. capacity borosilicate glass beaker and add approximately 1 litre. of a binary mixture of n hexane and acetone so as to immerse completely the 2.0 kg Urea with n-hexane-
acetone and keep it for 4-6 hours, preferably overnight with intermittent stirring the solution with a glass rod.
2. Filter the content of the beaker containing urea dissolved in the n- hexane-acetone through Whatman filter paper no 41 with repeated washings of n hexane and acetone to complete washing of neem oil content from the Urea.
3. Evaporate the collected n hexane and acetone soluble Neem extract by vacuum distillation maintaining temperature below 50°C and reduce the quantity of n-hexane-acetone to about 15 to 20 ml of Neem Oil extract, the temperature of flask should be maintained so that it should not be dried.
4. Transfer the volume of n-hexane-acetone Soluble Extract from the distillation flask to the pre- weighed beaker of 100 ml capacity. Again evaporate the n hexane and acetone from the Neem Oil Extract at a controlled temperature on water bath.
5. Add 5 ml of Methanol: Water (90:10) mixture to the beaker consisting Neem Oil Extract covered with Aluminum foil to check the spillage during the sonicating.
6. Keep the beaker on sonicator and sonicate it for 10 minutes.
7. Transfer the content of beaker into Centrifugal tube and centrifuge it at 2500 rpm for 10 minutes.
8. Collect the upper layer and pass it through C-18 solid phase extraction Cartridge (Supelco or equivalent).
9. Now analyze the Neem Oil Extract derived from the Neem Coated Urea to determine the Azadirachtin, Nimbin and Salannin content by HPLC of following main configuration:
Detector : UV - Vis Temp: Ambient Wave length: 215 nm Mobile phase: Aceto nitrile: Water (isocratic or gradient flow)
10. Before analysis of sample standardize the HPLC using the good purity (>90% ) Standard Reference Material of Azadirachtin (A & B.) Nimbin, Salannin, 6-deacetyl Nimbin and 3-deacetyl Sallanin
11. After calibration of the instrument, inject the 20 micro Itr. sample by Syringe or Loop into the HPLC. Wavelength 215 nm acetonitrile water
12. Identify the peak of Azadirachtin (A & B) Nimbin, Salannin, 6- deacetyl Nimbin and 3-deacetyl Sallanin with their retention time. Page 7 of 9 Downloaded on : Sat Sep 16 16:23:38 IST 2023
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13. Measure the area of peak and calculate the content of Azadirachtin (A & B) Nimbin, Salannin, 6-deacetyl Nimbin and 3-deacetyl Sallanin with multiplying the dilution factor as per BIS-14299 1995. XXX"
6. Considering the aforesaid Notification issued by the Ministry of Agriculture, undisputedly, the samples-in-question came to be tested after 2018 by using Benzene Method. The aforesaid is also fortified considering the affidavit-in-reply filed by the respondent authority. It is apposite to refer to paragraphs 9 and 12 of the said affidavit filed by the respondent authority which read thus:
"9. I state that for determination of the nature of the urea, the neem coating is extracted with a solvent. As per the specification, the minimum soluble neem oil content, per cent by weight should be 0.035%. The methodology of Benzene as a solvent had been prevailing till the notification dated 22/03/2018. As per notification dated 22/03/2018 which came in to force after one year from the date of its publication, the word "Benzene" was substituted by the word "binary mixture of n-hexane-acetone (4:1)".
12. I reiterate that the Benzene solvent was replaced with n- hexane-acetone not due to its effectiveness in determining Neem Oil content but due to its carcinogenic effect on health. I reiterate that Benzene is otherwise no less effective than n-hexane-acetone for determining the neem content in urea."
7. In view thereof, undisputed fact emerge that the samples came to be tested by the Benzene Method which was by Notification dated 22.03.2018 discontinued. In view thereof, exercising extra ordinary jurisdiction under Article 226 of the Constitution of India, the respondent authorities are directed to Page 8 of 9 Downloaded on : Sat Sep 16 16:23:38 IST 2023 NEUTRAL CITATION C/SCA/11145/2023 ORDER DATED: 06/09/2023 undefined re-test the samples in accordance with the Notification dated 22.03.2018. Needless to say that the reports dated 14.10.2022 and 13.04.2023 are directed not to be relied upon while undertaking the fresh samples by the respondent authority.
8. Mr. Ayaan Patel, learned AGP, submitted that the respondent authority be permitted to take fresh samples. Mr. Digant Popat, learned advocate appearing for the petitioner, candidly submitted that the petitioner herein has no objection if, fresh samples are collected and the same be tested by N - Hexane + Acetone Method in line with the Notification issued by the Ministry of Agriculture dated 22.03.2018.
9. In view of the aforesaid, permission as prayed for by Mr. Ayaan Patel, learned AGP appearing for the respondent authority, is granted.
10. In view of the aforesaid, by exercising extra ordinary jurisdiction under Article 226 of the Constitution of India, the present petition is allowed in terms of paragraph 22. Rule is made absolute.
(VAIBHAVI D. NANAVATI,J) NEHA Page 9 of 9 Downloaded on : Sat Sep 16 16:23:38 IST 2023