Indian Kanoon - Search engine for Indian Law

(iii) of clause (e) of section 3 or any specific batch thereof can be cancelled it the Central Government is of the opinion for reasons to be recorded in writing that the use of the said insecticide is likely to involve such risk to human beings or animals so as to render it expedient or necessary to take immediate action. Section 3 (e) (iii) deals with a preparation containing any one or more of the substances specified in the Schedule., The said power, therefore, cannot be exercised in respect to any substance specified in the schedule which in an insecticide within the meaning of section 3(e) (i). Benzene Hexachlordide being one of the substances in the Schedule issued under Section 3(e)(iii), and not a preparation containing any one or more of the substances as provided in section 3(e)(iii), the Central Government had no jurisdiction to issue the impugned Notification in purported exercise of power under section 27(2) of the Insecticides Act. In other words, what is contended by the counsel for the petitioners these Transferred cases is the power to prohibit or cancel the registration under section 27(2) is in respect of those preparations containing any one or more of such substances which are specified in the Schedule and which is consumer oriented ant the said power cannot be exercised in respect of any substance included in the Schedule by the parliament itself. Mr. Bhat. learned Addl. Solicitor General, on the other hand contended that in construing the provisions of the insecticides Act the Court must adopt a construction which would effectuate the objects of the statute instead of adopting a construction which would defeat its objects. According to t he learned Addl. Solicitor General a statute is designed to be workable and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable, as was observed by Lord Dunedin in whitney v. Commissioners of inland Revenue (1925) 10 Tax Cas. 88.110 and was also accepted by Craies on Statute Law as well as by Maxwell on The Interpretation of Statutes, Tenth Edn., and bearing in mind the aforesaid principle the provisions of Section 27 of the Insecticides Act are to be construed, According to the learned Addl. Solicitor General the courts should lean against any construction which tends to reduce a statute to futility and the provisions of a statute must be so construed as to make it effective and operative, on the principle "ut res majis valeat quam periat". The learned counsel urged that it is the court's duty to make what it can of the Statute, knowing that the Statutes are meant to be operative and not inept and that nothing short of impossibility should allow a Court to declare a Statute unworkable. The learned Addl. Solicitor General contends that the Insecticides Act having been enacted to retulate the import, manufacture, sale, transport, distribution and use of insecticides with a view to prevent any risk to human beings or animals and the Central Government having been satisfied that the use of Benzene Hexachloride involves great risk to the human life. and on being so satisfied having issued the impugned Notification phasing out the manufacture of such insecticide an completely prohibiting the same w.e.f. 1.4.1997, this court should not set aside the Notification by interpreting the provisions of the Act which would have the effect of frustrating the object of the legislation itself. According to the learned Addl Solicitor General no doubt the words used in sub-section (2) of section 27 are not very clear but the expression " as a result of its own investigation" in sub-section (2) of Section 27 does not necessarily refer to an insecticide specified in sub-clause (iii) of Clause (e) of Section 3 as engrafted in sub-section (1) of Section 27 and on the other hand it is wide enough to include any insecticide under Section 3(e) including a substance specified in the Schedule and such a construction alone would subserve the object of the Act. The learned Addl. Solicitor General also urged that when the power under sub-section (2) of Section 27 authorises the Central Government to issue an order refusing to register the insecticide it would obviously mean that the said power could be exercised even prior to the registration of the insecticide in question, whereas the power under Section 27(1) can be exercised only after an insecticide in question, whereas the power under Section 27(1) can be exercised only after an insecticide has been registered and, therefore. Section 27(2) does not necessarily refer to section 27(1) as contended by the learned counsel appearing for the petitioner. So far as the question of lack of consultation with the Registration Committee is concerned, the learned Addl. Solicitor General contended that the Notification which was issued in December 1994 itself indicates that the Central Government had due consultation with the Registration Committee and as such it was not necessary to have further consultation with the said Committee before issuance of Notification on 1st of January, 1996. According to the learned Addl. Solicitor General when Benzene Hexachloride has already been banned in several other countries in the world because of its effect on the human life, the Central Government has totally banned its production w.e.f. 31st of March, 1997, having decided to phase out the production progressively and any intereference with the said order will be against the society at large.

Benzene Hexachloride, otherwise known as BHC is an insecticide specified in the Schedule to the insecticide Act, 1968 and is different from its formulations which would also be an insecticide within the meaning of Section 3(e)(iii) of the said Insecticides Act. BHC is not used as such by farmer or consumer though its different formulations or preparations containing different concentrations of BHC are use in agricultural pest control, crop protection operation as well as in public health for control of diseases like malaria, dengu and plague. In the Tripathi Committee Report which was constituted to review the continued use of DDT and BHC in the country in the light of their hazard to human health and environment pursuant to the earlier observations of the Banerjee Committee Report in 1986, it has been stated as follows:

Section 3(e) defines 'insecticide' to mean that:

3(e): " insecticide" means :-

(i) any substance specified in the schedule : or

(ii) such other substances (including fungicides and weedicides) as the Central Government may, after consultation with the Board. by notification in the official Gazette. include in the Schedule from time to time; or

(iii) any preparation containing any one or more of such substances;

Section 36 is the rule making power of the Central Government.

An examination of the aforesaid provisions of the Act indicates that before registering a particular insecticide the Registration Committee is duty bound to hold such enquiry as it deems fit for satisfying itself that the insecticide to which the application relates is safe to human beings and animals. Coming now to the core question namely whether under Section 27 of the Act the central Government can cancel the Certificate of Registration in respect of an insecticide. It appears to us that under sub- section (1) of section 27 when the Central Government or the State Government is of the opinion that the use of any insecticide specified in sub-clause (iii) of clause (e) of section 3 or any specific batch thereof is likely to involve risk to human beings or animals and it is necessary to take immediate action then on recording reasons in writing the sale. distribution or use of the insecticide or batch can be prohibited in such area. to such extent not exceeding 60 days as may be specified in the notification pending investigation into the matter. In other words, In respect o an insecticide within the meaning of section 3(e) ((iii) i.e. a preparation or formulation containing anyone or more of such substances specified in the schedule. the appropriate Government can immediately by issue of notification prohibit the sale. distribution or use of the same pending investigation. Under the proviso to subsection (1) of section 27. if the investigation is not completed within the period of 60 days then the prohibition in question could be extended for such further period not exceeding 30 days in the aggregate. Under sub-section (2) if the Central Government on the basis of its own investigation or on receipt of the report from the state Government and after consultation with the Registration Committee is satisfied that the use of the said insecticide or batch is or is not likely to cause any such risk then it may pass such order as it deems fit depending upon the circumstances of the case. either refusing to register the insecticide or cancel the Certificate of Registration. If already granted. The use of the word said insecticide in sub-section (2) obviously refers to the insecticide in question which was the subject matter of consideration under sub-section (1) and in respect of which pending further investigation into the matter the Central Government has already issued a prohibition for sale, distribution or use of the insecticide in question. Therefore, the power of cancellation of Certificate of Registration conferred upon the Central Government under sub-section (2) of Section 27 can be exercised only in respect of any insecticide specified in sub-clause (iii) of clause (e) of section 3 i.e. a preparation or formulation of one or more of the substances specified in the schedule but the said power cannot be exercised in respect of an insecticide which is specified in the schedule itself by the Parliament. We are unable to accept the agreements advanced by the learned Additional Solicitor General that sub-section (2) of section 27 is not restricted to an insecticide in respect of which the Central Government has already issued a notification prohibiting the sale. distribution or use pending investigation into the matter. The Scheme of sub-section (1) and sub-section (2) of section 27 is that in respect of a formulation which is also an insecticide within the meaning of section 3 (e) (iii) the Central Government for reasons to be recorded in writing and pending investigation into the matter can immediately prohibit sale. distribution or use and after further investigation can cancel the Certificate of Registration in respect thereof under sub-section (2) of Section 27. That being the position in exercise of such power under sub- section (2) of section 27 a certificate of Registration in respect of an insecticide under sub-section 3(e) (i) cannot be cancelled under sub-section (2) of section 27. This is also in consonance with the logic that an insecticide which is the formulation of any one or more of the substances specified in the schedule and is consumer oriented power of cancellation of registration certainly has been conferred upon the central Government but in respect of an insecticide which does not come to a consumer and is a substance specified in the schedule itself and therefore an insecticide under section 3(e) (i), the power has not been conferred upon the Central Government since the specified substance in the schedule has been specified by the Parliament itself. In view of the aforesaid conclusion of ours we would hold that those of the Certificates of Registration granted to the petitioner in respect of any formulations namely BHC 10% WP, the order of the Central Government cancelling Certificate of Registration is well within the jurisdiction and there is no legal infirmity in the same. But in respect of Benzene Hexachloride which is one of the substances specified in the schedule and as such is an insecticide within the meaning of section 3 (e)(i) there is no power with the Central Government under sub- section (2) of section 27 to cancel the Certificate of Registration.