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Judgment
Raju, J.—These appeals involve consideration of a common issue and, as a matter of fact, submissions have been made in common. The
main judgment in the Writ Petitions has been rendered in W.P. No.380 of 1991, against which W.A.No. 790 of 1993 has been filed by the
Department. As a matter of fact, in the other cases, the learned Single Judge has simply followed the judgment rendered in W.P.No. 380 of 1991
and allowed the Writ Petitions. Therefore, for a proper appreciation of the various issues raised, the facts in W.A.No. 790 to 1993 may be
referred to in some detail.
W.A.No. 790 of 1993 has been filed by the Department against the order of the learned Single Judge dated 19-6-1992 in W.P. No.380 of
1991, allowing the Writ Petition filed seeking for a Writ of Certiorari, to call for and quash the proceedings of the 2nd appellant bearing No. PPS.
7.212993/90, dated 13-12-1990, confirming the order of the 1st appellant bearing No. PPs. 7.212993/89, dated 6-11-1990. The Agricultural
Officer (Quality Control), Office of the Assistant Director of Agriculture, Kumbakonam was said to have drawn pesticides sample viz.,
Monocrotophos 36% from the private dealer Thiru M. Kumar, Kumbakonam on 7-8-1989. The said Chemical was manufactured by M/s Bharat
Pulverising Mills Limited, Madras (respondent herein). The sample drawn appears to have been sent to the Assistant Agricultural Chemist (PTL),
Aduthurai on 8-8-1989 and after completing the analysis on 28-8-1989 under Lab. No. 704, an analytical report was said to have been sent to
the Assistant Director of Agriculture, Kumbakonam in a reference dated 28-8-1989, by the Pesticides Testing Laboratory, Aduthurai. The report
indicated that the sample failed in volume contents test. The actual volume measure was said to be only 238 ML. Hence, the sample was declared
as "" misbranded "". The 1st appellant issued a show cause notice dated 4-9-1990, calling upon the respondent to show cause why suitable action
should not be initiated under the provisions of the Insecticides Act, 1968, for the manufacture of Misbranded chemical. While acknowledging the
receipt of the show-cause notice, the respondent submitted an explanation that the net content declared on the label is the nominal content and in
actual practice it is not possible to pack in each container the exact quantity as stated on the label and that this fact has been recognised and
tolerant limits for different kinds of commodities have been prescribed under the Standards of Weights and Measures (Packaged Commodities)
Rules 1977. Since the explanation of the respondent was not found acceptable and convincing, it was considered that misbranded in volume was
also done and, therefore, there was no merit in the stand taken for the respondent. In such circumstances, the 1st appellant ordered that the
manufacturing Licence No. 9/72 be suspended from manufacturing Monocrotophos 36% chemical for a period of ten days from 16-12-1990 to
25-12-1990. The respondent was also informed in the very order that as per the Government Notification dated 23-3-1977, the Director of
Agriculture is the appellant authority and the appeal, if any may be filed within one month.
The respondent has filed an appeal before the 2nd appellate and the appellate authority felt that Rule 19 of the Insecticides Rules which
elaborated the """" labeling """" of the insecticide containers necessarily involves the noting on the label ""net volume"" and as per Rule 24(2) of the
Rules, the insecticides Analysts are empowered to test the ingredients as stated in the label. On that view the plea of the respondent that
quantitative measurement is outside the purview of the Insecticides Act was not accepted. Likewise, the appellate authority also rejected the
further plea raised on behalf of the appellant that the Insecticides Rules do not contemplate Analysts measuring Insecticides. As for the plea of the
respondent that the measurement of quality should be done in the manufacturer''s premises and that analysis with reference to volume is not to be
determined by a single sample, it was held by the appellant authority that the Insecticides Act is an independent legislation with various regulatory
provisions as well for enforcement and that even after taking into account the tolerant limits under the other Act, which provided for a maximum
permissible limit of 9 ML, the sample drawn could not be said to be perfect since it contained only 238 ML as against 241 ML. Hence, the
appellate authority rejected the appeal, by confirming the order of the said licensing authority. Aggrieved, W.P. No.380 of 1991 has been filed in
this Court.
In the affidavit filed in support of the Writ Petition it has been contended that the definition of the word misbranded in S. 3(k) has to be
interpreted in the light of the object of the Act and, if so done, it would get attracted only if the container is defective in quality and there is no
scope for interpreting the said definition clause so as to apply it to a case where the actual quantity found in the container is less than the quantity
declared on the label. The intendment of the Act, it has been claimed, was to prevent risk to human beings or animals and it has no concern with
quantitative measurements of the contents in the container. Rule 19(1)(v) of the Rules is also said to be in excess of the rule making powers of the
Central Government u/s 36(2) of the Act while adverting to Sec. 9 of the Act, Rules 21, 23 and 24(2) of the Rules, it is contended that the Act
and the Rules do not contemplate the Analyst measuring the volume of the insecticide. Reliance is also placed on the form prescribed in Form No.
IX to show that the form of the test report also does not envisage measurement and disclosure of the volume by any recognised method in the
report. It was also contended that samples have been drawn in terms of S. 22 of the Act. The report of the Analyst relating to deficiency in volume
was said to be wholly beyond the powers vested in the Analyst and the procedure laid down in the Act and the Rules. The respondent also
contended in the affidavit filed in support of the Writ Petition that weights and measures are matters governed by the Standards of Weights and
Measures Act, 1976 and it is only such of those persons who have undergone training in institutes as provided for u/s 76 of the Weights and
Measures Act above are competent to undertake tests relating to deficiency in Volume and that the Standards of Weights and Measures
(Packaging Conditions) Rules, 1977 made u/s 83 of the Weights and Measures Act also applies in respect of insecticides. Reliance is placed on
Rule 24 of the Rules to impress upon the need for and the method of taking samples and that the samples have not been taken in the said manner in
the case on hand. It is contended that since insecticide Analyst is not one authorised to determine the weight and measure, his report relating to
volume is illegal and cannot form the basis for any action. It is also contended that any violation or deficiency in respect of volume which can be
determined under the provisions of the Weights and Measures Act could be dealt with only under the said Act and that authorities functioning
under the said Act cannot have power to decide what is a misbranded product under the Insecticides Act.
The appellants have filed a counter affidavit in the Writ Petition, denying and disputing the various claims made on behalf of the respondent, both
on facts and on the submissions made in law. It was contended in the Counter-affidavit, while reiterating the conclusions contained in the orders of
the authorities (appellants herein), that when there is misleading information on the label, the Insecticide Inspector will be competent to proceed
against the manufacture or any other person concerned with the sale or distribution. It was also contended that there is nothing in Rule 24, which
prohibits the Analysts from examining the content or volume also in the course of their analysing a product. The test pertaining to volume content in
the container is also claimed to be one of the parameters of the tests permissible for an analyst empowered to test or analyse the product. It was
also contended that during the course of analysis either weight/measure has also to be ascertained to fix quality and lesser weight/measure will
necessarily result in lack or deficiency in quality, disproving the disclosure made in the printed information either on the packet or on the container.
Consequently, in was contended that the orders of the authorities below considering the sample drawn to be a misbranded one and imposing the
punishment of suspension of licence for a period of ten days was quite in accordance with law.
The learned Single Judge was of the view that the Insecticides Act, 1968 was enacted to regulate the import, manufacture, sale, transport,
distribution and use of insecticides with a view to prevent risk to human beings or animals and for matters connected therewith and that a combined
reading of Sec. 3(e), 3(k) 14, 19, 20 and 24 of the Act and Rules 21 to 24 of the Rules as well as the contents of Form IX in which the Test
Report has to be sent clearly show that the insecticide analyst has no jurisdiction to go into the question whether net volume as noted on the label is
actually contained in the container and that the insecticide Analyst is not empowered to test the volume of the product. The learned single Judge
was further of the view that merely because the container was found to contain only the contents of 238 ML as against the proclaimed 250 ML it
cannot be said that the material was sub-standard due to its deficiency in volume. The learned single Judge also rejected the plea on behalf of the
appellants that in testing the chemical, the Analyst also tests the volume content in the container which form one of the parameters of the tests since
in his view, the term ""ingredients"" which occurs in Rule 24(2) of the Rules cannot and will not include volume test. On the above view and also on
the conclusions arrived at by the learned single judge that the insecticide Analyst has no power or authority to go into the deficiency in volume and
therefore the said information furnished in the report cannot form the basis for any action to classify the product as misbranded one and take penal
action against the respondent, the writ petition was allowed as prayed for by the respondent. Since, as noticed supra, in the other cases the facts
are almost similar as also the issues raised therein it is unnecessary to advert to the factual details separately.
Mr. R. Muthukumaraswami, learned counsel appearing for the appellants - Department reiterated the contentions raised before the learned
single Judge and while adverting to the relevant provisions of the Act and the Rules, to contend and substantiate the claim that the deficiency in
volume or weight can also be a factor to characterise the insecticide to be a misbranded one. Mr. S. K. L. Ratan appearing on behalf of the
respondents writ petitioners while reiterating the stand taken before the learned single Judge also relied upon the reasons assigned in the order
under appeal before us to contend that the orders of the appellants are contrary to law and that the insecticide in question can by no stretch of
imagination be called ""misbranded"" merely on account of the deficiency in the volume or weight particularly when the person who tested and gave
the test report was not according to the learned counsel qualified to undertake tests relating to weights and measures. It was also the contention of
the learned counsel for the respondents before us that under the Weights and Measures Act as also the Standards of Weights and Measures
(Packaged Commodities) Rules, 1977 only persons, who are qualified and trained for the purpose, would undertake such tests and that too by
drawing samples in the manner prescribed and inasmuch as no such procedure was adopted in drawing the samples in the case on hand and
merely relying upon a single sample drawn, the product of the respondents concerned cannot be considered to be ""misbranded"" within the meaning
of Section 3(k) of the Act to justify punitive action in the form of suspension of the licences.
We have carefully considered the submissions of the learned counsel appearing on either side. In our view the learned single Judge was not right
in sustaining the grounds of challenge urged on behalf of the respondents. The preamble to the Insecticides Act, 1968, reads that it was enacted by
the Parliament, as an act to regulate the import, manufacture, sale, transport, distribution and use of insecticides with a view to prevent risk to
human beings or animals and for matters connected therewith.
Section 3(k) in so far as it is relevant for our purpose omitting the unnecessary limbs reads as hereunder :-
3(k) ""misbranded"" - an insecticide shall be deemed to be misbranded -
(i) if its label contains any statement, design or graphic representation relating thereto which is false or misleading in any material particular, or if its
package is otherwise deceptive in respect of its contents; ...
(v) If it is not packed or labelled as required by or under this Act ....
Section 20 deals with the appointment by Notification of persons whom the Government thinks fit and possessing such technical and other
qualification as may be prescribed to be Insecticide Inspectors for respective areas and Section 19 provides that the Government may appoint by
Notification persons as it thinks fit and possessing such technical and other qualifications as may be prescribed to be Insecticide Analysts. The
procedure prescribed to be observed by the Insecticide Inspectors are set out in Section 22. Rule 19 of Insecticides Rules provides for the manner
of labelling. In ordains that the particulars set out in the said Rule shall be either printed or written in indelible ink on the label of the innermost
container of any insecticide and on the outermost covering in which the container is packed and clause (v) of Sub-rule 1 of Rule 19 reads as
hereunder :-
(v) Net content of volume (The net content shall be exclusive of wrapper or other material. The correct statement of the net content to terms of
weight, measure, number of units of activity, as the case may be shall be given. The weight and volume shall be expressed in the metric system."")
Form No. IX prescribed under Sub-rule (3) of Rule-24 provides for the manner in which the report has to be sent by the Analyst. On a careful
reading of the various provisions referred to above, in the back-ground of the objects, purpose as also the aim of the Act and the Rules made
thereunder, we have no hesitation to hold that the Insecticides Analyst had every right, power and authority to deal with and submit a report with
reference to the deficiency in volume or weight of the product also among other things about the deficiency in quality. Learned Judge, in our view
was not right in accepting the plea on behalf of the respondents-manufacturers that an insecticide product can be said to be ""misbranded"" only
when it suffers any deficiency or has a toxic-content higher than the level prescribed. A combined reading of Section 3(k)(i)(v) read with Rule
19(v) and 24(2) would go to prove beyond any reasonable doubt that the deficiency in volume or weight also would go to render a product liable
to be called as a ""Misbranded"" product within the meaning of the Act. To read down the combined effect of the above Rules by merely placing too
much of an emphasis on the words in the preamble ""with a view to prevent risk to human beings or animals"" would be nothing but impeding the
effective implementation and enforcement of the provisions of the Act by the authorities concerned, and in our view, there is no warrant to limit the
operation of the provisions of the Act in the manner it had been done by the learned single judge. It would also result in restricting the very scope
and area of application of the Act. The Insecticide Analysts are enabled to conduct tests and analysis and submit reports with reference to the
various provisions contained in the Act as well as under the Rules. Rule 19 as noticed earlier, would go to show that not only the correct statement
of the net content to terms of weight, measure, number of units activity, as the case may be, shall be given expressed in the metric system but the
provisions contained in the Sub-rule (V) of Rule 19 would go to show that the classification of insecticides as extremely toxic, Highly toxic,
Moderately toxic and Slightly toxic is made to depend upon the medium lethal dose by the oral route and body weight of the test animals
expressed in 50 kg. If the Analyst has to find out the proper category of the insecticides, and the presence of otherwise of the proclaimed
percentage of ingredients, it cannot be possible without reference to the volume or measure and weight of the insecticides. That is why in our view,
it is rightly contended for the appellants that the test pertaining to the volume content of the container is also one of the parameters of the tests
permissible for an Analyst empowered to test or analyse the product and that the analysis with reference to weight/measure has to be necessarily
ascertained to fix the relative quality and percentage of ingredients of the product since lesser weight measure will necessarily result in lack or
deficiency proportionately in the ingredients relating to quality also.
The plea on behalf of the respondents that the Insecticide Analysts have no authority or that they have no technical know how or have not been
trained to test the volume to decide about the weight and measures cannot be accepted in the teeth of the provisions contained in Rules 19 and 24
and the provisions contained in Section 3(k) of the Act, which define the word ""misbranded"".
The learned counsel for the respondents placed very strong reliance upon the provisions of the Standards of Weights and Measures Act 1976
and also the Rules contained in the Standards of Weights and Measures (Packaged Commodities) Rules 1977 to impress upon as the fact that the
question of weights and measures or any deficiency in that respect of any product can be dealt with only under the said Act by these authorities
specially trained and appointed for the purpose and in the manner stipulated therein and not under the provisions of the Insecticides Act, 1968.
This submission on behalf of the respondents, in our view, will not stand a close and careful scrutiny, with reference to the provisions of the Act,
pertaining to the Standards of Weights and Measures. The said Act was enacted to establish Standards of Weights and Measures to regulate
Inter-State Trade or Commerce in Weights and Measures and other goods, which are sold or distributed by weight, measure or number and for
providing matters connected therewith or incidental thereto. In our view, the object and purpose of the Standards and Weights and Measures Act
and also the Rules referred to above made under the said Act, are entirely distinct and separate from the Insecticides Act and has no relevance
whatsoever to the case on hand. The fact that the said Act and the Rules provided for action or punishment against a dealer, who indulges in selling
or distributing packages with under weights or measure in less volume is no ground to contend that for the purpose of considering a violation with
reference to deficiency in volume in a product of insecticide, the manufacture and sale of which is governed by the Insecticides Act 1968, the entire
procedure of the method of tests prescribed under the Standards of Weights and Measures Act 1976 or the packaged commodities Rules are
attracted and should be dealt with only under those provisions of the Act and the Rules. In view of our conclusions and findings that deficiency in
volume/weight of measure of a product and a contravention thereof with reference to the information furnished in the label of the product is
sufficient enough to deal with such product as a ''misbranded'' one under the provisions of the Insecticides Act, 1968, the reference to the
provisions of the other Act governing Standards of Weights and Measures and the Packaged Commodities Rules become wholely irrelevant and
unnecessary. The reliance placed upon the said rules, in our view, is a mistaken reference to the case on hand and we do not see any merit in the
submissions on behalf of the respondents in this regard.
Consequently, we are of the view that the learned single Judge was not justified in law in allowing the writ petitions by setting aside the
impugned orders of the appellants in these writ petitions. But at the same time, we are of the view that the punishment of suspension for ten days
appears to be too extreme and arbitrary considering the matter in the context of the number of packets, which has been, picked up as samples and
tested. It is not as though the entire batch of products manufactured or a substantial quality has been found to be so wanting in the stipulated
volume or weight. What has been tested with reference to the product of the respondents is admittedly with reference to only one packet. It may
be that the deficiency found therein may be for ever so many reasons and there is no certainty with which it could be claimed that the other packets
manufactured and distributed but not taken out for testing or drawn as sample must have had or contained such defect or deficiency. Keeping in
view all these aspects, we are of the view that the interests of justice would be better served, if the period of suspension ordered of the licences of
the respective respondents is reduced to one day instead of ten days as ordered by the first respondent and confirmed by the second respondent.
The Writ Appeals are therefore, allowed. The orders of the learned Single Judge are hereby set aside, but at the same time we modify the
period of suspension of the licences of the respective respondents to one day. No costs.
In view of the disposal of the main Writ Appeals no further or separate orders are necessary in C. M. P. Nos. 1783 to 1786 of 1995.
Appeals allowed.