' The petitioner has impugned the order, dated 7th April, 2006 passed by Plant Protection Adviser and Director-General, whereby renewal of Import Permission Certificate for Chlorsulfuron, under the brand name "Lasher" was declined.
2. Brief facts may be recapitulated to appreciate the rival contentions of learned counsels.
3. Petitioner engaged in import and distribution of Pesticide and weedicide including "Lasher" since 1996. Lastly, Certificate for the "Pesticide Registered abroad" was renewed on 14-41-2002 valid upto 28-2-2003. In October, 2003 when subject pesticide was imported, its Customs clearance was declined for want of NOC from the Plant Protection Agency, working under respondent No,1 .
Renewal of Certificate was also declined by the Plant Protection Agency, which action was challenged in Constitutional Petition No,204 of 2006.
4. Learned Division Bench of this Court in C.P. No,204 of 2006 set aside the orders passed by the Plant Protection Agency with directions to re-examine the case of "Renewal of Certificate of Import of Pesticide Registered Abroad". It was directed that the issue be examined, afresh after hearing the petitioner and "examining evidence as required under Rule 9-A(5) read with sub-rules (1) to (4) of Rule 9-A and Form 17 of Agricultural Pesticide Rule, 1973".
5. Plant Protection Agency, after hearing the petitioner, passed the order impugned through instant petition. It seems consideration that prevailed upon the Agency concerned are reflected in paras.2 and 3 of the impugned order, which reads as follows:--
(2) The registration authority instituted for the Control of Agrochemical, Ministry of Agriculture, People's Republic of China (ICAMA), provided a comprehensive list of all the products registered with ICAMA, China in the year 2002. As this product Lasher 25% WP under registration number provided by Messrs R.B. Avari Enterprises, Karachi at the time of obtaining import permission certificate was not listed in that catalogue, the documents provided by petitioner were sent for confirmation to registration authority (ICAMA), China, who reported on 8-2-2002 that documents submitted by the petitioner were fake.
(3) Consequently, the petitioner was informed accordingly on 1-4-2002 and 13-8-2002 and the department did not renew the import permission certificate if Lasher 25% WP which was not registered in favour of their principal Messrs Hubei Sanonda Co. Ltd., in China. Subsequently, in response to his repeated requests the department informed to the petitioner vide letters, dated 17- 12-2005 and 22-12-2005 that renewal of import permission certificate and NOC for lease of Lasher 25% WP is not maintainable.
7.(sic) Learned counsel for the petitioner contends that the case for renewal of the registration was pending since 2004 and denial of registration is against law. It was urged that provision of Rules 8 and 9 of Agricultural and Pesticide Rules, 1973 would apply to the present case and not Rule 9-A(5)
(ibid) thereof.
8. Mr. S. Tariq Ali learned Federal Counsel contends that since the renewal sought was based on fake registration, the petitioner cannot claim any right. According to him, the petitioner has come to this Court with unclean hands, therefore, the petition is liable to be dismissed. He has drawn our attention to the Annexure "A" to the comments filed on behalf of the respondent No,1 today in Court.
It is a certificate issued by Agrochemical, Ministry of Agriculture, People's Republic of China (ICAMA) dated 8th February, 2002 certifying that, the registration for the subject consignment produced by the petitioner is fake. No explanation has been offered by the petitioner to such finding recorded by the authority i,e, Plant Protection Advisory and Director-General.
9.We have heard the arguments and perused the record. This Court while remanding the case to the authority below, specifically directed that the request of the petitioner for renewal may be considered in light of Rule 9-A(5) of Agricultural Pesticides Rules, 1973 and Form 17 thereof. We have examined Rules 9-A(5) (ibid) which reads as under:-- 9-A(5). In case of imports of pesticides registered in the country of manufacture, in addition to the condition specified in sub-rule (1) to sub-rule (4) the importer shall comply with the conditions specified in Form 17 and shall, for the purpose of verification of quality of pesticides submit:-
(a) documentary proof of the pesticides registration in the country of manufacture;
(b) proof of use of the Pesticides in any member country of Organization for Economic Cooperative and Development (OECD) or China;
(c) documentary proof of the said Pesticides extensive use on relevant crop and its pests, in the country of origin or any other country specified in clause (b).
10. On reading of above rule, it is clear that for the purpose of import of pesticide and for seeking registration and renewal thereof, registration of pesticide in the country of origin is a condition precedent.
11. In this case, specific finding has been recorded by the regulatory authority that the subject pesticide has not been registered in the country B of origin. The certificate of origin, produced by the petitioner at the time of grant of initial registration was declared fake by ICAMA, China.
12. As regards contention of the learned counsel for the petitioner that the section 9-A of the Act of 1973 are inapplicable in case of renewal of the certificate. It may be observed that, the very foundation for obtaining registration of the pesticide was based on counterfeit certificate or origin.
No renewal based on initial registration could be claimed, which is founded on fake certificate or origin. Even otherwise, writ jurisdiction is a discretionary jurisdiction. Where it appears that the petitioner has approached the Court with unclean hand and/or procured any favourable order from any regulatory authority by using fake D documents then discretionary relief could be declined. Accordingly, finding no merits petition is dismissed along with listed applications with cost throughout.
13. When the order was dictated Mr. Aziz learned counsel for the petitioner urged that the subject pesticide is being auctioned by the customs authorities. Therefore, the petitioner may be allowed to seek clearance of such pesticides on payment of all dues and other charges as may be determined by the Customs Authorities. It is indeed a matter of concern that, the Customs Authorities are proceeding to auction the pesticides, which is not allowable to be imported in Pakistan. Its potently and effectiveness is not established or proven in the country of origin, it is nothing but spurious and should not be allowed to be imported or find its way into market of Pakistan. It is for this reason, certificate of origin is condition precedent for seeking registration of an pesticide.
14. Under circumstances, we would direct that the petitioner be allowed to re-export the subject consignment of pesticide "Lasher". In case within three months the petitioner fails to re-export same may be destroyed by the Customs Authorities and by no means should be allowed to infiltrate into market in Pakistan.