Karnataka High Court
The University Of Agriculture Sciences vs State Of Karnataka on 11 October, 2013
R
1 Crl.Ps 10002 &
10003/13
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF OCTOBER, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL PETITION No.10002 OF 2013
AND
CRIMINAL PETITION No.10003 OF 2013
In Crl.P.10002/2013:
BETWEEN:
1. The University of Agricultural Sciences,
Dharwad - 580 005,
Rep. by its Registrar.
2. Dr. R.R. Hanchinal,
Vice Chancellor,
University of Agricultural Sciences,
Krishinagar, P.B. Road,
Dharwad-05.
3. Dr. H.S. Vijaykumar,
Registrar,
University of Agricultural Sciences,
Krishinagar, P.B. Road,
Dharwad-05. ... PETITIONER/S
[By Sri. Ravi B.Naik, Sr. Adv. for
Sri. Ramachandra A. Mali &
Sri. Mohan A. Hirekodi, Advs.]
2 Crl.Ps 10002 &
10003/13
AND:
1. State of Karnataka,
Rep. by Dharwad Urban Police,
Now rep. by S.P.P.,
High Court of Karnataka Circuit Bench,
Dharwad-580 011.
2. C. Achalender Reddy,
S/o. C. Kondal Reddy,
Age: Major,
Working as Secretary,
National Bio-diversity Authority,
TICEL, Bio-park, 5th Floor,
CSIR Road, Taramani,
Chennai-600 113.
3. Y. Chakrapani,
S/o. late B. Yellappa,
Age: Major,
Working as Dy. Conservator of Forests,
Karnataka State Bio-diversity Board,
Ground Floor, Vanvikas,
18th Cross, Malleshwaram,
Bangalore-03.
4. V.M. Halagatti,
S/o. Mr. Mukundrao,
Age: Major,
Working as Dy. Conservator of forests,
Dharwad Forest Division,
Dharwad. ... RESPONDENT/S
[By Sri. K.S. Patil, HCGP, for R1.
Sri. Aditya Sondhi, Smt. Nidhishree B.V.,
Sri. Lingaraj Maradi, Advs. for R2-4]
***
3 Crl.Ps 10002 &
10003/13
In Crl.P.10003/2013:
BETWEEN:
Dr. S.A. Patil,
Age: Major,
Former Vice-Chancellor,
University of Agricultural Sciences,
Krishi Nagar, P.B. Road,
Dharwad-05,
Now R/at Bangalore. ... PETITIONER/S
[By Sri. Ravi B. Naik, Sr. Adv. for
Sri. Ramachandra A. Mali &
Sri. Mohan A. Hirekodi, Advs.]
AND:
1. State of Karnataka,
Rep. by Dharwad Urban Police,
Now rep. by S.P.P.,
High Court of Karnataka Circuit Bench,
Dharwad.
2. C. Achalender Reddy,
S/o. C. Kondal Reddy,
Age: Major,
Working as Secretary,
National Bio-diversity Authority,
TICEL, Bio-park, 5th Floor,
CSIR Road, Taramani,
Chennai-600 113.
3. Y. Chakrapani,
S/o. late B. Yellappa,
Age: Major,
Working as Dy. Conservator of Forests,
Karnataka State Bio-diversity Board,
Ground Floor, Vanvikas,
4 Crl.Ps 10002 &
10003/13
18th Cross, Malleshwaram,
Bangalore-03.
4. V.M. Halagatti,
S/o. Mr. Mukundrao,
Age: Major,
Working as Dy. Conservator of forests,
Dharwad Forest Division,
Dharwad. ... RESPONDENT/S
[By Sri. K.S. Patil, HCGP, for R1.
Sri. Aditya Sondhi, Smt. Nidhishree B.V.,
Sri. Lingaraj Maradi, Advs. for R2-4]
***
These Crl.Ps. are filed u/Section 482 of
Cr.P.C. seeking to quash the Order of registering
the P.C. as C.C. against the petitioner herein and
also quash the entire proceedings in C.C.
No.579/2012 (P.C. No.267/2012) on the file of the
Prl. Civil Judge (Jr.Dn.) & JMFC, Dharwad, insofar
as the same relate to the petitioner herein as the
same being totally illegal and not sustainable in
law.
These Crl.Ps. having been heard and reserved
for Orders, this day the Court pronounced the
following:
ORDER
The petitioners have approached this Court to quash the Order taking cognizance of the offence punishable under Section 55 of the Biological 5 Crl.Ps 10002 & 10003/13 Diversity Act, 2002 [hereinafter referred to as "the Act of 2002" for short] in C.C. No.579/2012 by the learned JMFC., Dharwad.
2. The facts relevant for the purpose of these petitions are as under:
The petitioners herein are the accused 1 to 4 in the trial Court, whereas respondents 2 to 4 are the complainants. The 2nd respondent is the Secretary, National Biodiversity Authority [hereinafter referred to as "the "NBA" for short], the 3rd respondent is the Deputy Conservator of Forests, Karnataka Biodiversity Board [hereinafter referred to as "the KBB" for short], whereas the 4th respondent is the Deputy Conservator of Forests. The Act of 2002 was enacted with a view to provide for conservation of biological diversity sustainable use of its components and equitable sharing of the benefits assigning out of the biological resources, knowledge and for 6 Crl.Ps 10002 & 10003/13 matters connected their with or incidental to both these. The NBA is the authority to sanction, approval to the persons desiring to obtain biological resources in India or knowledge associated thereto for research or for commercial utilization or for bio-survey and bio-utilization in terms of Section 3(1) and 3(2) of the Act of 2002. If the persons are not citizens of India or non-residents of India or entities not incorporated or registered in India or incorporated and registered in India with any non-
India participation in its share capital, Section 4 of the Act of 2002 provides that NBA is the sole authority empowered to sanction approval to any person desired/desirous of transfer of results of any research related to any biological resources and an application for sanction or approval to NBA has to be made under the provisions of Section 5 of the Act of 2002.
7 Crl.Ps 10002 & 10003/13 The petitioners in Crl.P. No.10002/2012 are the University of Agricultural Sciences, its Vice- Chancellor and the Registrar, whereas the petitioners in the other case is the Ex-Vice Chancellor of the aforesaid University established under the provisions of the Karnataka University of Agricultural Sciences Act, 1963. Accused No.5 is a Company incorporated in India and M/s. Monsanto American Company a share holder in the accused No.5 company to an extent of 26% of the share holding. This company is engaged in research and development of seeds, various crops including vegetables and transfer of technology and is a body corporate incorporated in India and non-Indian participation in its share capital and management. Accused Nos.6 to 9 are its Managing Director and Directors, whereas accused No.10 is a Company incorporated in India and accused Nos.11 to 13 are the Managing Director and Directors responsible for conduct of its business.
8 Crl.Ps 10002 & 10003/13 It is the alleged by the respondents that in the year 2005, accused Nos.1 and 5 entered into a Sub-license Agreement along with accused No.10 to develop and deliver varieties of insect tolerant bt-eggplant using local variety of eggplant with a view to project commercialization or other distribution. This agreement is said to have been entered into between the parties on 02.04.2005. Under the terms and conditions of the aforesaid agreement, accused No.5 was to provide bt-gene Cry1Ac gene to University of Agricultural Sciences [herein after called as accused No.1], which would be incorporated into the gene of local eggplant and use this modified plant seed to accused No.1, to further breed and develop these plant seeds in terms of the agreements under the sub-license granted by accused No.1 or accused No.5. The accused No.1 was to further develop, test, produce or distributes other than the same licensed 9 Crl.Ps 10002 & 10003/13 domestic eggplant in the area of sub-license operation in India.
It is further grievance of the complainants/ respondents 2 to 4 that accused No.5 is guilty of having made available genetically modified local eggplant by accused No.1 without the approval of the authority and accused No.10 has a role of facilitator to the agreement providing the management services relating to the technology transfer strategy under the agreement. It is also alleged that the accused have entered into 2 other prior agreements dated 10.03.2005 [between accused Nos.5 and 10] and a Material Transfer Agreement dated 20.02.2005 between accused No.5 and accused No.1. It is alleged that these agreements are entered to legally exploit the agricultural biotechnology to support the project of which accused No.11 is the original coordinator. These agreements said to 10 Crl.Ps 10002 & 10003/13 disclose a significant research and commercial intent in violation of the Act of 2002.
It is their grievance that under the aforesaid 3 agreements, the accused have undertaken research and development to develop bio-engineered eggplant varieties, product distribution to the resources concerned to farmers and commercial distribution in general. According to them, accused No.5, a body corporate falling within the meaning of Section 3(2)(ii) of the Act of 2002 cannot enter into an Agreement dated 02.04.2005 for sub-license of bt-gene of local variety of eggplant and further breeding and development of bt-eggplant by accused No.1 in the local variety of eggplant without previous approval of NBA. This agreement is said to be in direct contravention of Section 7 of the Act of 2002 and is an offence under Section 55(2) of the Act of 2002. Therefore, the aforesaid respondents submitted a complaint on the facts stated above, to initiate action for the 11 Crl.Ps 10002 & 10003/13 offence punishable under Section 55 of the Act of 2002 and the learned Magistrate under the impugned Order has taken the cognizance and issued the process. It is this Order of the learned Magistrate that has been challenged in these petitions.
3. I have heard Sri. Ravi B.Naik, learned senior counsel for the petitioners, Sri. Aditya Sondhi, learned counsel for respondent Nos.2 to 4 and the learned High Court Government Pleader.
4. Learned counsel for the petitioners has challenged the impugned Order, its validity on the following grounds:
i) The complaint filed by respondent Nos.2 to 4 in the Court below is by the individuals and not by either the officers or a public servant. Hence, he contends that the said respondents have no authority to file such a complaint under the provisions of the Act of 2002.
12 Crl.Ps 10002 & 10003/13
ii) As the complaint filed is by persons in their individual capacity, it was necessary for the trial Court to record sworn statement and taking cognizance, issuing the process without recording sworn statement is both erroneous and illegal.
iii) According to him, the petitioners herein are the public servants, and they cannot be prosecuted without a sanction as contemplated under Section 197 Cr.P.C.
iv) Under the provisions of Section 64 of the University of Agricultural Sciences Act, 2009 [hereinafter referred to as "the Act of 2009"], there is a protection to the University, its authorities, Officers, etc., for any act done in a good-faith and therefore, no suit, prosecution or other legal proceedings shall lie against the aforesaid persons. Hence, the complaint cannot be maintained.
v) The petitioners have not violated any of the provisions of Sections 3 or 4 of the Act of 2002. Hence, the complaint filed to initiate action for the offence 13 Crl.Ps 10002 & 10003/13 punishable under Section 55 of the Act of 2002 is not maintainable.
vi) The agreements aforesaid were entered into with the consent and a notifications of the concerned Ministry and Central Government and therefore, there is no violation of the provisions of Section 3 and 4 of the Act of 2002.
vii) The NBA have declared that the provisions of the Act shall not apply to the biological resources specified in column 2 of the table and at Sl. No.105, brinjal [Solanum melongena] is exempted from the applicability of the Act of 2002 and hence he submits that the action taken is without application of mind and therefore, the Order impugned is liable to be set aside.
viii)The highest authority in the State and in the Central Government have approved the Sub-license Agreement and the other Agreements and therefore, the Officers of a lower rank cannot challenge the authority of the aforesaid Agreements and 14 Crl.Ps 10002 & 10003/13 no action could be taken at the hands of the said officials.
ix) The provisions of Sections 3 and 4 of the Act of 2002 are not applicable to the aforesaid collaborative research projects under Section 5 of the said Act and therefore, there is no justification in filing a complaint for contravention of the aforesaid provisions i.e., Sections 3 and 4 of the Act of 2002.
On the other hand, Sri. Aditya Sondhi, learned counsel for respondent Nos.2 to 4 submits that the complaint has been filed by the Officers, who have an authority to file such complaints and as the petitioners herein are not the public servants, who are removable either by the State Government or the Central Government, there is no bar for initiating the complaints against them. He also submits that there is no protection to the petitioners under the Act of 2009 and as there is violation of Sections 3 and 4 of the Act of 2002, 15 Crl.Ps 10002 & 10003/13 the Order taking cognizance and issuing process is valid in law. Denying the other aforesaid grounds put-forth by the petitioners, it is his submission that the learned Magistrate on perusal of the provisions of the Act of 2002 and on the basis of the allegations in the complaint has rightly taken cognizance and has issued process and that there is no error or illegality in the impugned Order.
5. Point Nos.(i) and (ii):
In the cause title of the complaint, though the names of the complaints have been first mentioned and thereafter, their designation appears, the complainants [respondent Nos.2 to 4 herein] have made an elaborate statement in paras 3 and 4 of the complaint as to in what capacity they have approached the Court with the complaint.
The 1st complainant i.e., respondent No.2 herein is the Secretary of the NBA., whereas the 2nd complainant is an Officer of the KBB vide 16 Crl.Ps 10002 & 10003/13 notification dated 17.11.2008 issued under Section 61(a) of the Act of 2002. They are the authorized officers of the NBA and the KBB., not below the rank of Scientists have to file complaints in respect of the offences under the Act of 2002. They are the Officers authorized to file a complaint under Section 61(a) of the Act of 2002. The Office Order dated 11.05.2010 issued by the concerned Ministry of the Central Government prescribes the pay-scale for Scientists-"C" and the copy of the Order has been produced along with the complaint. The competent authority have issued certificates which reveal that the complainants 1 and 2 are the Officers drawing the said salary and are in the grade pay of Scientists-"C". The certificates and resolutions authorizing them to initiate these proceedings have also been produced. The 4th respondent [3rd complainant] is an Officer of the rank of Deputy Conservator of Forests and he is the person 17 Crl.Ps 10002 & 10003/13 authorized within the scope of Notification dated 12.01.2009 and the copy of the notification issued under Section 61(a) of the Act of 2002 has also been produced. If the allegations made in para 3 and 4 of the complaint are looked into, it is made clear that respondents 2 to 4 though have mentioned their names prior to their designation i.e., they have mentioned their name first and the designation later in the cause title. Therefore, it cannot be said that the complaint was in the individual capacity of the said Officers. The respondents 2 to 4 clarified their capacity and authority to file the complaint. The said complaint has to be treated as a complaint by a Public Servant.
Under Section 200 Cr.P.C., a Magistrate taking cognizance of an offence has to examine upon oath, the complainant and the witnesses present. But, the proviso provides that when a complaint is made in writing, the Magistrate need not examine the 18 Crl.Ps 10002 & 10003/13 complainant and the witnesses, if a Public Servant acting or purporting to act in the discharge of his official duties has made the complaint. Therefore, under the aforesaid proviso to Section 200 Cr.P.C., the Officers who are public servants having approached the Court in their capacity as the Authorized Officers under Section 61(a) of the Act of 2002 recording of their statement on oath was not necessary.
6. Point No.(iii):
Under Section 197 Cr.P.C., the prosecution of a public servant not removable from his office save by or with the sanction of the Government, the offence alleged having been committed while discharging the official duty, there is a bar for the Court to take cognizance of such offence except with the previous sanction and in case if the public servant is employed by the Central Government, the sanction of the Central Government 19 Crl.Ps 10002 & 10003/13 and in case if he is employed, in connection with the affairs of the State, the sanction from the State Government. So, under the aforesaid provision, sanction is necessary to prosecute a public servant and the definition of public servant has been provided in Section 21 IPC.
Attention of this Court was invited to the description of a person, who is in service or pay of a local authority, a Corporation established under a Central provincial or State Act or a Government Company as defined under Section 617 of the Companies Act, 1956(12). So, basing the claim on the aforesaid provisions of Section 197 Cr.P.C. and Section 21 IPC., it is contended that the Vice-Chancellor of the University is a public servant and he cannot be prosecuted in the absence of a sanction.
In case, if a public servant is not removable from his office without the sanction of the Government, then Section 197 Cr.P.C. provides that 20 Crl.Ps 10002 & 10003/13 the sanction of the concerned Government will have to be taken. In the context of the aforesaid provisions, it is now necessary to refer to Section 27 of the Act of 2009, wherein it provides;
Vice-Chancellor.-
(1) The Vice-Chancellor shall be a whole time officer of the University.
(2) x x x x x
(3) x x x x x
(4) x x x x x
(5) x x x x x
(6) x x x x x
(7) x x x x x
(8) x x x x x
(9) The Vice-Chancellor shall not be removed from his office except by order of the Chancellor passed on the ground of misbehaviour or incapacity or if 21 Crl.Ps 10002 & 10003/13 it appears to the Chancellor that the continuance of the Vice-Chancellor in office is detrimental to the interest of the University, after due inquiry by such person who is or has been a Judge of High Court to be nominated by the Chancellor in which the Vice-
Chancellor, shall have an
opportunity of making his
representation. [Emphasis
supplied]
So, as could be seen from the provisions of
Section 27 of the Act of 2009, it is the
Chancellor of the University, who has an authority to remove the Vice-Chancellor and it is only in a case if it appears to the Chancellor that the continuation of the Vice-Chancellor is detrimental to the interest of the University and for that purpose, the Chancellor has to hold an enquiry, by a person, who is or has been a Judge of the High Court, to be a nominated by a Chancellor and it is 22 Crl.Ps 10002 & 10003/13 the exclusive authority of the Chancellor to remove a Vice-Chancellor. So, nowhere under Section 197 Cr.P.C., there is any provision to obtain sanction of either State Government or Central Government to remove a Vice-Chancellor. A Vice-Chancellor of a University is not removable either by the State Government or by the Central Government, and therefore Section 197 Cr.P.C. does not apply to the Vice-Chancellor though he is a public servant.
So far as the 3rd petitioner-Registrar of the University is concerned, it is relevant to note that under Section 24 of the Act of 2009, the Registrar is an Officer of the University and he is so referred in Clause 6 of Section 24 of the Act of 2009. The Registrar is appointed by the Vice Chancellor in exercise of his powers and duties conferred under Section 29 of the Act of 2009. Section 30 of the Act of 2009 provides that the Officers of the University specified in 23 Crl.Ps 10002 & 10003/13 Clauses (iv) to (ix) of Section 24 of the Act of 2009 shall be appointed by the Vice-Chancellor with the approval of the Board on such terms and conditions as may be prescribed. So, approval of the Board is necessary under this provision. The Order of appointment is by the Vice-Chancellor by himself.
The scrutiny of the provisions of the Act of 2009 does not reveal any provision as to the person having an authority to remove the Registrar from his office and therefore, in the absence of any provision, it is the General Clauses Act, which is applicable and Section 16 of the Karnataka General Clauses Act provides that where the law provides a provision to make any appointment unless a different intent appears, this power of appointment would also include a power to sustain or dismiss the person so appointed. By invoking the said provision, as the Vice-Chancellor, is the appointing Authority of 24 Crl.Ps 10002 & 10003/13 the Registrar of a University, he has also the authority to remove the Registrar. In this back- ground, if the provisions of Section 197 Cr.P.C., are looked into, the Registrar being not removable either by the State Government or the Central Government, it is not necessary for the respondents to seek the sanction of the Government as the Registrar do not fall within the category of the persons mentioned in Section 197 Cr.P.C. Therefore, both the Vice-Chancellor and the Registrar of the University cannot claim protection of Section 197 Cr.P.C. in the event of any charges under the Penal Provisions. So far as the petitioner in the other petition, being the former Vice-Chancellor of the University, the law does not contemplate a sanction to prosecute him.
7. Point No.(iv):
Now, coming to the provisions of Section 64 of the Act of 2009, the said provision is extracted herein for the sake of convenience:
25 Crl.Ps 10002 & 10003/13 "Protection of act done in good faith.-No suit or other legal proceeding shall lie against, and no damages shall be claimed from, the University or its authorities, bodies officers or other employees for anything which is in good faith done or intended to be done in pursuance of this Act, the Statutes, or Regulations made there under."
A plain reading of the aforesaid provision would indicate that the University or its authorities, bodies, officers or other employees have been given a protection in case if any act is done by them in good faith or is intended to be done in pursuance of this Act, no suit or other proceedings shall lie against them. Though the aforesaid provision does not define as to what is a legal proceeding referred therein, Section 66 of the Act of 2009 defines the words "legal proceeding" and it provides that all suits and other legal proceedings by or against the 26 Crl.Ps 10002 & 10003/13 University shall be instituted, prosecuted or defended on its behalf by the Registrar or any other officer empowered in this behalf. So, the mention of the word prosecution in Section 66 of the aforesaid Act means a criminal prosecution and nothing else. So, the criminal proceedings are also the legal proceedings as envisaged under Section 66 of the aforesaid Act. The words "legal proceeding" mentioned in Section 64 of the Act of 2009 has to be given the same meaning as is provided under Section 66 of the Act of 2009. Thereby, a person referred to under the aforesaid provision has been given a protection from any suit or other legal proceeding inclusive of criminal proceeding in case if he establishes that he did the act in good faith.
Learned counsel for the respondents placed reliance on the decisions of the Apex Court reported in (2010)101SCL290(SC) [Pennar Paterson Ltd. Vs. Shikshak Sahakari Bank Ltd.]; wherein the 27 Crl.Ps 10002 & 10003/13 Apex Court took into consideration the expression "other legal proceedings" and held that the aforesaid expression used in Section 446(1) of the Companies Act, 1956 does not include criminal proceedings placing reliance on the decision of the Apex Court in the case of BSI Ltd. and Anr. Vs. Gift Holdings Pvt. Ltd. And Anr. etc. [AIR 2000 SC 926]. The learned counsel would submit that when the words of a Statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning and the Courts are bound to give effect to that meaning irrespective of the consequences. He further submits that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. On this principle, he placed reliance on the decision of the Apex Court reported in AIR 2005 Supreme Court 294 [State of Jharkhand and another Vs. Govind 28 Crl.Ps 10002 & 10003/13 Singh]. So, he would contend that in case if the Parliament had an intention to protect the University or its officers under Section 64 of the Act of 2009, it could have mentioned the words "criminal proceedings" as well when it used the word the "suit" which refer to the civil proceedings. The non-mention of criminal proceedings would indicate that there is no protection to the aforesaid persons and that was the intention of the Parliament. This submission of learned counsel for the respondents seems to be not acceptable for the sole reason that while mentioning expression "prosecuted" in Section 66 of the aforesaid Act, while giving its meaning to the legal proceedings under the said Act, the Parliament seem to have intended to include a criminal proceeding as well under Section 64 of the Act of 2009 and give protection to the Officers or University under the aforesaid provision.
29 Crl.Ps 10002 & 10003/13 On this aspect of the matter, reliance has been placed by learned senior counsel for the petitioners on the decision of the Apex Court reported in AIR 2012 Supreme Court 1890 [General Officer Commanding Vs. CBI & Anr.]; wherein the Apex Court in the context of the provisions of the Armed Forces (Jammu and Kashmir Special Powers) Act, 1990, took into consideration the meaning of the words "legal proceeding" and held that it is not synonymous with the 'judicial proceedings'. It further held that phrase 'legal proceeding' connotes the term which means the proceedings in a Court of justice to get a remedy which the law permits to the person aggrieved. It includes any formal steps or measures employed therein. It is not synonymous with the 'judicial proceedings.' Every judicial proceedings is a legal proceeding but not vice versa, for the reason that there may be a 'legal proceeding' which may not be judicial at all. The ambit of expression 'legal 30 Crl.Ps 10002 & 10003/13 proceedings' is much wider than 'judicial proceedings'.
If the aforesaid principle is looked into, the words 'legal proceeding' was interpreted by giving a wider scope which includes the 'judicial proceeding', thereby a criminal prosecution is being a judicial proceeding in my considered opinion, the provisions of Section 64 of the Act of 2009 gives a protection in respect of an act which is done in a good faith.
If once this protection is to be extended, the further question that arises for consideration would be at what stage of the proceedings the Court has to consider the extension of the benefit is again a matter for consideration. To seek an exemption of an action for an offence, though the provisions of Section 64 of the Act of 2009 gives a protection, it is necessary for the petitioners to establish that the act done by them in 31 Crl.Ps 10002 & 10003/13 contravention of the provisions of Sections 3 and 4 of the Act of 2002 is done in good faith and at the most it could be defence in a criminal proceedings, but cannot be a ground to quash the proceedings. On this aspect of the matter, learned counsel for the respondents has placed reliance on the decision of the Calcutta High Court reported in (2004)3CALLT609(HC). In a case where the proceedings were challenged under Section 482 Cr.P.C. on the ground of an act done in good faith; the High Court held;
"24. So, applying the aforesaid decisions in the given situation and having due regard to the rival contentions made by the parties, I am rather prompted to hold that to get the protection of Sub-section (1) of Section 3 of Act of 1971, the petitioner as a medical practitioner has to prove that he has done the same in good faith which may also include the omissions, but this is not the appropriate stage where the Court should go on embarking upon by way 32 Crl.Ps 10002 & 10003/13 of enquiry as to whether it was done in good faith or otherwise and it is required to be left to be decided by the trial Judge at its appropriate stage in the trial."
So, when the petitioners contend that the act done by them is in good faith, in the context of the plain reading of Section 64 of the Act of 2009 at the most the good faith can be a defence, and at the stage of taking cognizance, the petitioners cannot put-forth a plea that the act done by them is in good faith. This defence at the most could be considered by the trial Court at an appropriate stage. Therefore, at this stage, the petitioners cannot take the benefit of protection granted to the University or its officers in a petition under Section 482 Cr.P.C.
8. Point No.(v):
It is under ABSP-II Project that a letter was addressed by the Co-ordinator-K.Vijayaragavan 33 Crl.Ps 10002 & 10003/13 dated September 2, 2004 produced by the petitioners at Annexure-"B", wherein the petitioners were conveyed a communication with reference to the research and commercialization of the proposal based on the outcome of the discussions between them with regard to the eggplant (Solanum melongena), a popular vegetable crop grown by which millions of farmers in the country with the partner i.e., accused No.5 which has developed Cry1Ac gene based fruit and Shoot Borer resistant bt-eggplant, that a responsibility was entrusted to the petitioners. It is in pursuance of this project that a sub-licence agreement dated 2nd April, 2005 was entered into between the petitioners, accused No.5 and accused No.10. Pursuant to the entrustment of the project work, the Central Government through the Ministry of Science and Technology, Department of Biotechnology, addressed a letter dated 27.06.2005 produced at Annexure-"E" by way of transfer 34 Crl.Ps 10002 & 10003/13 clearance letter to transfer the transgenic material of brinjal varieties containing Cry1Ac gene from accused No.5 Company to the petitioners University. Under the aforesaid transfer clearance letter, the department accorded clearance to the petitioners to receive six transgenic brinjal varieties [Malpur local, Manjari gota, Kudachi local, Udupi Gulla, 11 GO and Rabkavi local] containing Cry1Ac gene from accused No.5 with properties and sources indicated for the research and development purpose only.
The petitioners were allowed to receive the seeds of 10 grams of each of transgenic brinjal varieties referred to supra expressing Cry1Ac gene from accused No.5. So, it is under the aforesaid clearance letter with the purpose under the project referred to supra that there was transfer of biological resources between the petitioners and accused No.5. Admittedly, accused No.5 is an Indian Company, which has non-Indian participation 35 Crl.Ps 10002 & 10003/13 in its share capital or management. Under the provisions of Section 4 of the Act of 2002, no person shall, without the previous approval of the NBA., transfer the results of any research relating to any biological resources occurring in, or obtained from India for monetary consideration or otherwise to any person who is not a citizen of India or citizen of India who is non-resident or a body corporate or organization which is not registered or incorporated in India or which has any non-Indian participation in its share capital or management. So, under the aforesaid provisions, accused No.5 being an Indian Company with non-Indian participation in its share capital, any transfer of biological resources prima facie require previous approval of the NBA., without which the results of research cannot be transferred. Thereby, prima facie looking to the allegations in the complaint, the material placed on the record in the context of Section 4 of the 36 Crl.Ps 10002 & 10003/13 Act of 2002, there is sufficient material on record for violation of Section 4 of the Act of 2002. This violation is an offence as defined under Section 55 of the Act of 2002, for which the petitioners have been prosecuted.
9. Point Nos.(vi) and (viii):
It is mandate of Article 14 of the Indian Constitution that every citizen of this country has to be treated equally before the law and the State shall not deny the equal protection of the laws. Whether a person is an highest authority or is in a lower rank is not a criterion in the eyes of law. When the law imposes certain duties, on any of the Officers, irrespective of the fact as to whether a person is placed in a high rank or in a lower rank are bound to do their duties and in case, if any wrong is done by any person or authority, the law has to take its own course. The perusal of numerous documents produced by the 37 Crl.Ps 10002 & 10003/13 petitioners would reveal that there is a letter of intent between two countries and that the Officers of Ministry of Science and Technology have addressed a letter either to the petitioners or to any of the accused granting permission to import the transgenic material or that the funds have been sanctioned by the higher authority in the country does not exempt the petitioners from seeking approval of the NBA merely because that they have been authorized by the higher authorities to go on with the transfer of biological resources and at the most it could be said that even if it is the direction by the higher authority, before implementation of the directions, it was incumbent upon the parties to seek the approval as contemplated under Section 4 of the Act of 2002. Hence, the grounds put-forth by learned senior counsel for the petitioners that the petitioners were implementing the directions of the highest authorities or discharging the 38 Crl.Ps 10002 & 10003/13 duties in pursuance of the notifications issued by the concerned Ministry or Central Government or that the persons who have given directions or the highest authorities cannot be an excuse to ignore the provisions of Section 4 of the Act of 2002.
When the Central Government had issued such notifications or directions, then before proceeding with or taking action in pursuance of the directions or the notifications, the petitioners ought to have approached the NBA for the approval.
10. Point No.(vii):
An exception is taken by learned counsel for the petitioners that the provisions of Act of 2002 are not applicable to the biological resources specified in column No.2 of the table and brinjal is exempted from the applicability of the Act of 2002 and this biological resource is mentioned in Sl. No.105 of the notification issued by the 39 Crl.Ps 10002 & 10003/13 Central Government under the provisions of Section 40 of the Act of 2002. The Ministry of Environment and Forests has issued a notification, which has been produced by learned counsel for the petitioners at Annexure-"N", dated 26th October, 2009, wherein in exercise of powers conferred under Section 40 of the Act of 2002, the Central Government, in consultation with the NBA., declared that the provisions of the Act shall not apply to the biological resources specified in column No.2 of the table provided under the notification as they are treated as commodities.
At Sl. No.105 is "Solanum melongena", a botanical name and ordinarily it is called eggplant or brinjal. Placing reliance on this notification, it is the submission of the learned senior counsel for the petitioners that the Act of 2002 itself is not applicable to the brinjal or eggplant as it is exempted from the applicability of the 40 Crl.Ps 10002 & 10003/13 provisions of the Act of 2002 by issuing the notification under Section 40.
The perusal of the aforesaid notification produced by the petitioners at Annexure-"N" would reveal that the eggplant has been exempted under Section 40 of the Act of 2002 and the provisions reveal that in case, if the Central Government after consultation with the NBA., by notification declare that the provisions of this Act shall not apply to any of the items, including biological resources normally traded as commodities. But, the facts do not stand at this stage only. Learned counsel for the respondents has produced Annexure-"R2", which is a clarification of the notification dated 26th October, 2009 produced at Annexure-"N" and in para 3 it is stated;
"It is wrong to say that "190 plants have been dropped from the protection of the Biological Diversity Act, 2002". It is clarified categorically that this
41 Crl.Ps 10002 & 10003/13 Notification applies only for export of these 190 items and these exports would not require prior permission of the National Biodiversity Authority. However, it is also made clear that if these biological resources are used as a source for research or industrial purposes, they will require previous approval of the National Biodiversity Authority as per relevant provisions of the Biological Diversity Act, 2002. The Notification does not pertain to the GMOs that are covered under the EPA, 1986."
So, the aforesaid clarification issued by the Central Government would reveal that even the eggplant though falls within the purview of the notification at Annexure-"N", the export of eggplant needs no previous approval. But, in case, if the said egg plant is used as a source for research or industrial purposes, the previous approval of the NBA is required. Hence the contention of learned counsel for the petitioners 42 Crl.Ps 10002 & 10003/13 cannot be accepted for the sole reason that the notification issued by the Central Government produced at Annexure-"N" has been clarified and therefore, the petitioners cannot seek any benefit under the said notification.
11. Point No.(ix):
It is contended that the work taken by the petitioners is in pursuance of a collaborative research project between two countries and therefore, the provisions of Sections 3 and 4 of the Act of 2002 do not apply to the undertaking given by the petitioners under the said project. At this stage, it is relevant to refer to the provisions of Section 5 of the Act of 2002, which reads as under:
"Sections 3 and 4 not to apply to certain collaborative research projects.-
43 Crl.Ps 10002 & 10003/13
1) The provisions of sections 3 and 4 shall not apply to collaborative research projects involving transfer or exchange of biological resources or information relating thereto between institutions, including Government sponsored institutions of India, and such institutions in other countries, if such collaborative research projects satisfy the conditions specified in sub-
Section (3).
(2) All collaborative research projects, other than those referred to in sub-section (1) which are based on agreements concluded before the commencement of this Act and in force shall, to the extent the provisions of agreement are inconsistent with the provisions of this Act or any guidelines issued under clause (a) of sub-section (3), be void.
3) For the purposes of sub-section (1), collaborative research projects shall,-
44 Crl.Ps 10002 & 10003/13
(a) conform to the policy guidelines issued by the Central Government in this behalf;
(b) be approved by the Central
Government."
Under the aforesaid provision, no-doubt an
exemption could be claimed from the applicability of Sections 3 and 4 of the Act of 2002. But, it is subject to certain exceptions. It is necessary for the petitioners to satisfy the conditions specified in sub-Section (3) of the Section 5 of the Act of 2002. The first condition is to be fulfilled if that the collaborative research project was to conform to the policy guidelines issued by the Central Government in this behalf and secondly it should be approved by the Central Government. It is relevant to note that it is for the first time, in the year 2006, that the Central Government has framed the guidelines and prima facie there is no material placed on record that 45 Crl.Ps 10002 & 10003/13 the petitioners have complied with the requirements. The respondents have produced the notification issued by the Ministry of Environment and Forests, New Delhi, dated 8th November, 2006 at Annexure-"R1". The perusal of this notification reveals that in exercise of powers conferred by clause (a) of sub-section (3) of Section 5 of the Act of 2002, the Central Government has made the guidelines and under Clause (13) it provides that the collaborative research project shall have to be approved by the concerned Ministry/Department of the State or the Central Government and Clause (14) requires that a copy of the approval along with all relevant details shall be sent to the NBA and at this stage, no material is placed on record for compliance of the guidelines issued by the Central Government under the aforesaid notification. Even as required by Clause (b), no notification has been produced to prove the approval of the Central Government. Section 5 of 46 Crl.Ps 10002 & 10003/13 the Act of 2002 exempts the collaborative research project subject to the compliance of sub-Section (3) and in the absence of any material at this stage, the petitioners cannot seek exemption from the provisions of Section 4 of the Act of 2002.
12. Lastly, it is relevant to refer here that the question of the violation of the provisions of Sections 3 and 4 of the Act of 2002 was also discussed with the Parliament and it is thereafter that the respondents approached the Court below for action against the petitioners for violation of Sections 3 and 4 of the Act of 2002. Prima facie the material placed on record at this stage reveals the violation of Section 4 of the Act of 2002 for the reason that the petitioners have addressed a letter referred to supra relating to the transfer of biological resources and did the act for a research in relation to the said biological resource and at this stage, there is no material on record that the petitioners having 47 Crl.Ps 10002 & 10003/13 obtained the prior approval of the NBA and the violation of Section 4 of the Act of 2002 would be an offence within the meaning of Section 55 of the Act of 2002. Hence from whatsoever angle if the material placed on record is perused, at this stage, I do not find any ground to hold that the impugned Order passed by the learned Magistrate is either improper or illegal.
In the result, the petitions are without any merits and they are accordingly dismissed.
Sd/-
JUDGE.
Ksm*