Madhya Pradesh High Court
M/S Aditya Biotech Thru.Mr.Vikas Jain vs Farmer Welfare And Agriculture ... on 28 March, 2017
Author: Vivek Rusia
Bench: Vivek Rusia
-: 1:- Writ Petition No.22 of 2017.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Vivek Rusia)
Writ Petition No.22 of 2017
M/s Aditya Biotech
VERSUS
State of Madhya Pradesh and 2 others
*****
Shri Ramesh Saboo, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
*****
O R D E R
( Passed on this 28th day of March, 2017 ) THE petitioner has filed the present petition being aggrieved by order dated 06.10.2016 (Annexure P/8) by which the petitioner's license to run the business of processing and sale of certified seeds has been cancelled and by order dated 29.11.2016 the appeal has been dismissed by the Appellate Authority.
[2] Facts of the case are as under :-
(a) The petitioner is engaged in the business of
seeds since 2008 having a License bearing No.909 dated 08.05.2008 valid up to 07.05.2017. The said license was issued under the provisions of Seeds (Control) Order, 1983.
(b) On 17.05.2016, the Respondent No.3 took the samples of certified Soyabean seeds (JS 95-60) of Lot No.Oct-2015-12-800A-36565-cl, Oct-2015-12-800A-37271-
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cl, from the premises of the petitioner. According to the petitioner that seeds were not packed for sale but for the National Seed Corporation. After taking the samples, they were sent for testing to the Government Laboratory, Gwalior. As per the report, 3 samples were rejected and in pursuant to report, a show-cause notice dated 13.07.2016 was issued to the petitioner alleging the violation of Section 13 (1) (c) of Seeds (Control) Order, 1983 and he was directed to submit an explanation with a detail of sale of rejected lot.
(c ) On the basis of Government Laboratory, Gwalior a prohibitory order was issued regarding sale of the said lot of the seeds.
(d) The petitioner submitted a detailed reply of the show-cause notice submitting that the said lot has been dispatched to the National Seed Corporation vide Delivery Challan Nos.2021, 2034 and 2036 on 14.05.2016, 31.05.2016 and 01.06.2016 respectively and at present they are not in the stock of seeds and later on they have also not received any complaint about quality of the seeds.
(e) Vide order dated 20.09.2016 the license of the petitioner was suspended. The petitioner preferred an appeal for revocation of suspension and thereafter vide order dated 06.10.2016 in exercise of powers under the Seeds (Control) Order, 1983 by a non speaking order, the license of the petitioner was cancelled.
(f) The petitioner preferred an appeal before the Joint Director. This Court in Writ Petition No.7536 of 2016 has directed the Appellate Authority to decide the
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appeal within a period of 15 days. Vide order dated 29.11.2016, the Appellate Authority has dismissed the appeal based on the report dated 02.06.2016 Government Laboratory, Gwalior. Hence, the present petition before this Court.
[3] After notice, the Respondents filed the return submitting that the Notification dated 09.03.2000 was issued under Clause 12 of Seeds (Control) Order, 1983 in respect of inspection and collection of the seeds. The Seed Inspector is empowered to collect the samples from the premises of the petitioner. After collecting the samples, they were sent to the laboratory under Section 16 of the Seeds Act. The samples taken from the premises of the petitioner were found substandard as 70% germination was not present in the Soyabean seeds. Therefore, the authorities were justified in suspending and thereafter terminating the license of the petitioner irrespective of the fact that the National Seed Corporation is the owner of the seeds.
[4] The petitioner filed the rejoinder submitting that for the same lots, M. P. State Seed Certification Agency issued certificate to the petitioner stating that the said lots duly confirms the paraameters of the said Seed Act. The petitioner has sold 80.10 quintal of seeds to the National Seed Corporation and thereafter the Corporation has further sold the said seeds to the various farmers on 17.05.2016 and till date not a single complaint has been received about the quality of the seeds. The impugned order was passed on the basis of assumption that it might cause irreparable loss to the farmers.
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[5] I have heard Shri Ramesh Saboo, learned
counsel on behalf of the petitioner and Shri Rohit Mangal, learned Govt. Advocate on behalf of the Respondents/State.
[6] The Seeds Act, 1966 is an Act to provide for regulating the quality of certain seeds for sale and for the matters connected therewith. The said Act was enacted by Parliament in the interest of agricultural production in the country and to regulate the quality of the seeds. Section 3 of the Act provides constitution of Central Seed Committee to advice the Central Government as well as State Governments on the matters arising out of the administration of this Act and carrying out the functions. There is a provision of establishment of Central Seed Laboratory and State Seed Laboratory under Section 4 of the Act. Section 6 of the Act give power to the Central Government to specify minimum limits of germination and purity of the seeds. Section 7 of the Act mandates restriction for carrying on a business of selling of seeds below the minimum limits of germination and purity prescribed under clause (a) of Section 6 of the Act.
[7] Any person selling or supplying any notified seed desires to have seed certificate by the certification agency, may apply for grant of such certificate under Section 9 of the Act and after such enquiry, the agency may issue certificate to such person with a condition that the standard of seeds shall not be allowed within the limits of germination. Section 10 of the Act provides for revocation of certificate which is reproduced below :-
"10. Revocation of certificate :- If the certification
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agency is satisfied, either on a reference made to it in this behalf or otherwise, that, -
(a) the certificate granted by it under Section 9 has been obtained by misrepresentation as to an essential fact; or
(b) The holder of the certificate has, without reasonable cause, failed to comply with the conditions subject to which the certificate has been granted or has contravened any of the provisions of this Act or the rules made thereunder, then, without prejudice to any other penalty to which the holder of the certificate may be liable under this Act, the certification agency may, after giving the holder of the certificate an opportunity of showing cause, revoke the certificate."
[8] And as per this section, the certificate is liable to be revoked if the same has been obtained by misrepresentation or the holder has failed to comply with the conditions under which the certificate was granted or has contravened any provisions of the Act. Section 11 of the Act provides remedy of appeal against the decision of certification agency under Section 9 and Section 10.
[9] The power of the Seed Inspector is provided in Section 14 and the procedure is given under Section 15 of the Seeds Act for taking sample. He will give a notice in writing before taking sample and after taking such sample he shall provide one sample to a person from whom it was taken and send another sample for analysis to the Seed Analyst and retain the remaining samples for analysis by the Central Seed Laboratory under sub-section (2) of Section 16 of the Act. Sub-sections (1) and (2) of Section 15 of the Seeds Act are reproduced below :-
"15. Procedure to be followed by Seed Inspectors :--
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(1) Whenever a Seed Inspector intends to take
sample of any seed of any notified kind or variety for analysis, he shall, -
(a) five notice in writing, then and there, of such intention to the person from whom he intends to take sample;
(b) except in special cases provided by rules made under this Act, take three representative samples in the prescribed manner and mark and seal or fasten up each sample in such manner as its nature permits.
(2) When samples of any seed of any notified kind or variety are taken under sub-section (1), the Seed Inspector shall, -
(a) deliver one sample to the person from whom it has been taken;
(b) send in the prescribed manner another sample for analysis to the Seed Analyst for the area within which such sample has been taken; and
(c) retain the remaining sample in the prescribed manner for production in case any legal proceedings are taken or for analysis by the Central Seed Laboratory under sub-
section (2) of Section 16, as the case may be."
It is clear from sub-sections (1) and (2) of Section 15 that the sample is required to send Seed Analyst if before any action is initiated against the seller. As soon as the report of Seed Analyst is received of the sample taken under sub-section (2) of Section 15 of the Act, the report shall be supplied to the person from whom the sample was taken. Under sub-section (2) of Section 16 of the Act, there is a provision of prosecution under this Act where the complainant may submit an application to the Court for sending the IIIrd sample taken in clause (a) or (c) of sub-section (2) of Section 15 to the Central Seed Laboratory for its report and after verifying the record, the Court may order for sending to the laboratory. Section 16 of the Act is reproduced below :-
"16. Report of Seed Analyst :-- (1) The Seed Analyst shall, as soon as may be after the receipt of the sample under sub-section (2) of Section 15, analyse the sample at the State Seed Laboratory and deliver, in such form as may be
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prescribed, one copy of the report of the result of the analysis to the Seed Inspector and another copy thereof to the person from whom the sample has been taken.
(2) After the institution of a prosecution under this Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending any of the samples mentioned in Clause (a) or Clause (c) of sub- section (2) of Section 15 to the Central Seed Laboratory for its report and on receipt of the application, the Court shall first ascertain that the mark and the seal or fastening as provided in Clause (b) of sub-section (1) of Section 15 are intact and may then despatch the sample under its own seal to the Central Seed Laboratory which shall thereupon send its report to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of the analysis.
(3) The report sent by the Central Seed Laboratory under sub-section (2) shall supersede the report given by the Seed Analyst under sub-section (1).
(4) Where the report sent by the Central Seed Laboratory under sub-section (2) is produced in any proceedings under Section 19, it shall not be necessary in such proceedings to produce any sample or part thereof taken for analysis."
Section 16 (2) provides prosecution for sending sample to the Central Seed Laboratory by the permission from the Magistrate in prosecution instituted against the seller. There is a provision of penalty under Section 19 of the Act.
[10] In the present case, admittedly no such prosecution has been instituted against the petitioner. The sample taken from the petitioner was send to the Seed Laboratory at Gwalior and report was obtained and on such report license has been cancelled. No such report has been received from Seed Analyst.
[11] Powers conferred under Section 25 of the Seeds Act, 1966, the Central Government has made the rule called "The Seeds Rules, 1968. In exercise of powers conferred by Section 3 of the Essential Commodities Act, 1955, the Central Government made the rules called "Seeds (Control) Order, 1983" where procedure has been prescribed
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for obtaining the license to sale of seeds. Under the said order, there is provision of suspension and cancellation of license. In the present case, the license of the petitioner has been cancelled under clause 15 of the Seeds (Control) Order and appeal was dismissed under clause 16. The license has been cancelled on the ground that the seeds collected from the petitioner's premises were substandard after obtaining report from the Seeds Laboratory. In this case, no such prosecution has been instituted against the petitioner so far. Therefore, only the report from the Seed Analyst is liable to be obtained under Section 15 to launch prosecution under Section 16 of the Act and that has not been done in the present case.
[12] The license can be cancelled if the seller or the license holder has obtained the license on misrepresentation or failed to comply with the conditions of the certificate and contravenes any provisions of the Act. It is the case of the petitioner that along with the show-cause notice that report of Government Laboratory, Gwalior has been supplied to him. The valuable right of the petitioner under Section 16 (2) make a request to send IIIrd sample to Central Seed Laboratory has been taken away by not supplying report of Seed Analyst. This Court in the case of Prahlad Gattani v/s State of M.P. [I.L.R. (2012) M.P. 1454] held as under :-
"11. Adverting to the facts of the case, it may be observed that the notice under Section 13 (2) of the Act along with the copy of the report of the Public Analyst was forwarded to the petitioner No.1 on 29.07.2011 i.e. nearly a year after the expiry of the shelf life of the sample. In such a situation, where no order of conviction can be recorded on the basis of the report, the proceedings are liable to be interfered with. Moreover, the alleged violation of Rule 32 (b) (2) (v)
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[ibid] also would not assume any significance. It is relevant to note that the ketchup was not declared as misbranded as defined in Clause (ix) of Section 2 of the Act.
12. To sum up, even if the allegations made against the petitioners in the complaint, are taken at their face value and accepted in their entirety, no offence under the Act would be made out. As such, the case against the petitioners fall under category (1) and (6) of the cases, as enumerated in State of Haryana v. Bhajan Lal AIR 1992 SC 604, attracting interference under the inherent powers."
10. Thus, it is settled law that when the complaint is lodged after the expiry of the shelf life of the sample, then the vendor is deprived of his right to get analyze another sample by Central Food Laboratory. In the present case both the samples expire their shelf life on 16.01.2011 and 26.02.2011; whereas the complaint has been filed on 23.09.2011. The complaint has been filed after lapse of 7 months. In such a situation the petitioner is deprived of his valuable right under Section 13 (2) of the Act to send the other part of the sample to Director Central Food Laboratory for analysis.
11. In the result, the petition is allowed. Criminal Case No.18702/2011 pending before JMFC, Indore and other dated 23.09.2011 taking cognizance against the petitioner for the offences punishable under Sections 7/16 (1)(a)(ii) of the Prevention of Food Adulteration Act are hereby quashed and the petitioner is discharged from all the charges."
(Emphasis supplied) Had the prosecution been instituted against the petitioner, the burden is lies on the prosecution to prove the report given by the Seed Analyst and Central seed Laboratory. The petitioner had an opportunity to cross-examine the prosecution witnesses in respect of the allegations against him. The apex Court in the case of Ayaaubkhan Noorkhan Pathan v/s State of Maharashtra [(2013) 4 SCC 465] has held that no evidence against any one can be used when he was not given opportunity of cross-examine the witness. Para 24, 29 and 30 are reproduced below :-
"24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Vaishampayan, AIR 1961 SC 1623, held that the rules of natural justice, require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said
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opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also: Union of India v.T.R. Varma, AIR 1957 SC 882; Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719; M/s. Kesoram Cotton Mills Ltd. v. Gangadhar & Ors., AIR 1964 SC 708; New India Assurance Company Ltd . v . Nusli Neville Wadia and Anr., AIR 2008 SC 876; Rachpal Singh & Ors. v. Gurmit Singh & Ors., AIR 2009 SC 2448; Biecco Lawrie & Anr. v. State of West Bengal & Anr., AIR 2010 SC 142; and State of Uttar Pradesh v. Saroj Kumar Sinha, AIR 2010 SC 3131).
29. In Rajiv Arora v. Union of India [(2008) 15 SCC 306] this Court held : (SCC p.310, paras 13-14) "13. ... Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. ...
14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdictionof judicial review."
30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross- examination is an integral part and parcel of the principles of natural justice."
[13] In the present case entire report of Government Laboratory, Gwalior has been used against the petitioner for cancellation of his license. The cancellation of license means deprivation of the petitioner to run his business which is a fundamental right of the petitioner. The fundamental right of the petitioner cannot be taken away without following due process of law. The petitioner was not supplied the copy of the report of Government
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Laboratory, Gwalior, he had no opportunity to cross- examine the Analyst. The license has been cancelled by passing non speaking order in which reply submitted by the petitioner has not been considered. No prosecution has been instituted against the petitioner. Therefore, the impugned order is not sustainable in law, hence accordingly quashed. The Appellate Authority has also passed a non speaking order without considering that procedure prescribed under the Act and Rules has not been followed or not. Therefore, the appellate order dated 29.11.2016 is also quashed.
[14] The petition is allowed.
No order as to costs.
[ VIVEK RUSIA ]
JUDGE
Sharma AK/*