Coromandel Agrico Pvt. Ltd. vs State of Haryana and Others

K. Kannan, J.—The writ petitions contain the same kind of prayer viz., to seek for a direction to the second respondent to issue a No Objection Certificate/Marketing and Sales Permission for sale of certain products said to have been imported from foreign countries as a Bio-product and plant nutrients. In writ petition No. 15583 of 2014, there is no more than the petitioner''s apprehension that the respondents do not permit the petitioner to market the product without No Objection Certificate and in CWP No. 15774 of 2014 the petitioner places on record also an inspection note and the endorsement made by the Inspector of Fertilizers that he was directing stoppage of sales by virtue of power under Section 28(2) of the Fertilizer Control Order, 1985. There is no provision anywhere either under the Control order of 1985 or under the Insecticides Act providing for any necessity of issuance of No Objection Certificate for a bio-product. If the petitioner believes that he has a right to market any product of his choice and guaranteed under the Constitution as falling within the fundamental freedom under Article 19, then the reasonable restriction which the Article itself propounds would be through a law duly passed which might include executive rules and instructions that have the force of law. As far as the petitioner in CWP No. 15583 of 2014 is concerned, the prayer for No Objection Certificate cannot be issued only because there is no legal mandate for any authority to issue such a certificate. As far as the petitioner in CWP No. 15774 of 2014 is concerned, the Fertilizer Inspector has passed an order on 25.4.2014 that he is directing stoppage of sale in exercise of the powers mentioned in the said Section. The writ could be issued only against unlawful directions or exercise of powers which are arbitrary. If the power is sourced to an express provision, then there shall be no scope for intervention unless any other fundamental right of the petitioner is infringed or statutory right is violated. Section 28 of the Fertilizer Control Orders 1985 deals with powers of Inspectors. Section 28(1)(b)(a) empowers the Inspector to "draw samples of any bio-fertilizers in accordance with the procedure of drawal of samples laid down in Schedule III". Bio Fertilizer itself is defined under Section 2(aa) as a product containing carrier based (solid or liquid) living microorganisms which are agriculturally useful in terms of nitrogen fixation, phosphorus solubilisation or nutrient mobilization, to increase the productivity of the solid and/or crop. I cannot take a view of what is the nature of product that the petitioner has imported or seeks to market. The petitioner claims that it is a bio-product. It is a nutrient for a soil for better production of crops. I assume therefore the product of what the petitioner wants to market is an agent that promotes better productivity. Section 28(2) allows for a power of search and seize the materials inspected, subject to the provisions of the Code of Criminal Procedure and the procedure laid down under Section 28(1) itself. The proviso to Section 28(2) is the source of power which is purported to be exercised in this case and therefore would require to be reproduced.

"Provided also that the inspector shall give the stop sale notice in writing to the person whose stocks have been detained and initiate appropriate action as per the provisions of this order within a period of twenty one days. If no action has been initiated by the inspector within the said period of twenty one days from the date of issue of the said notice, the notice of stop sale shall be deemed to have been revoked."

The power to stop sale is therefore statutorily available and that is the power which is exercised in this case. Section 28(3) also details a procedure of what should be done if fertilizer is seized. The further provisions allow for an analysis of samples and if no action is initiated, the proviso that we have extracted itself would show that on the completion of 21 days of the issue of notice, the notice of stoppage of sale shall be deemed to have been revoked. Considering the fact that notice of stoppage of sale is brought through an affirmation which is borne from the records produced by the petitioner-Company itself. It would be seen that the writ petition has been filed even before the completion of 21 days. The petition is therefore pre-mature. The reliefs sought for to direct the authorities to issue a No Objection Certificate cannot therefore be granted.

The counsel has fervent plea to make that it has been an experience in every part of India that State Agencies under Food and Supplies and Department and Department of agriculture have been creating obstruction to the free marketing of the products and civil courts have come to their aid of importing and carrying out the trade of marketing them without being fettered in any way. This court has itself passed an order in a writ petition filed in CWP No. 15742 of 2011 that the controversy of whether the product sought to be marketed is efficacious and it could help the farmer would require to be found out one way or the other so that "the gullible farmers are not taken for a ride." I do not have the benefit of whether there has been any report made by the Council for Agricultural Research as regards the product which was directed to examined by the Court in CWP No. 15742 of 2011. In our case it will be sufficient to point out that there cannot be an omnibus protective umbrella given to these companies vouching for what they import is marketable. It shall be left to the regulatory bodies to exercise such powers as the Fertilizer Control Orders and the Insecticides Act provide, so that if there are any harmful products which are dished out by attractive package, the racket would require to be busted.

There are reasons why a ring of circumspection is essential in such like matters. The person to whom it is marketed in a typical Indian agrarian set up is an illiterate farmer. The produce which are grown by farmers are consumed by the large Indian milieu. Any mishap at any place can spell disaster. A claim by the petitioner that the product that he imports is free from danger and the product, if used will improve agricultural produce must be the claim that should succeed on appropriate scientific examination. It should serve the importers themselves to voluntarily offer their products for scientific examination by seeking for State intervention so that they are assured that they are marketing a wholesome product. I will find no reason to exercise the power with inadequate data about the safety of the products and to let the petitioners have a free ride through court orders that they could market the products without any fetter. The issue will be decided on a case to case basis if they are ever brought to court. Else the petitioners will have such rights as the Constitution guarantees, subject only to such restrictions as the Constitution imposes. Both the writ petitions are dismissed.