AYESHA A. MALIK J.------Through this petition, the petitioner has impugned the act and conduct of respondent No, 1 for not releasing Yellow Soya Bean Meal ("Meal") imported from India. The petitioner has also impugned letter dated 16.02.2017 and seeks release of the Meal from customs at Wahga Border, Lahore.
2. The petitioner is engaged in the business of manufacturing and selling poultry feed and imports Meal from India through the Wahga Border. The petitioner has been importing Meal regularly for thirty years alongwith others and has always had its consignment released by the respondents as per law, however, the February 2017 consignment was not released by the respondents on the ground that it is dangerous and hazardous to plants and should not be allowed to be imported into Pakistan.
3. The grievance of the petitioner is that the respondents have deliberately delayed release of its consignment and have illegally withheld issuance of the Plant Protection Release Order. The petitions has prayed that the consignment be released and letter died 16.2.2017 issued by the Department of Plant Protection ("DPP") be declared illegal. During the course of arguments, learned counsel stated that the petitioner has suffered significant loss due to the delay in the release of the consignments and the Meal being a perishable commodity was subjected to weather and heat. Therefore the petitioner's main grievance is that the Court determine whether the respondents acted illegally and deliberately delayed release of the consignments
4. Learned counsel for the petitioner argued that the on 09.02.2017 the consignment of Meal was shipped through seventy trucks and on 10.02.2017 through sixteen trucks to Wahga Border for entry, into Pakistan. As per previous practice when the goods reached at Wahga Border, the DPP inspected the consignments, however they did not release the consignment and instead on 16.2.2017 required the petitioner to get an Analysis Test from the Industrial Analytical Centre ("IAC") for a fee of Rs, 1,74,585/-. Learned counsel argued that the analysis test was not required nor it is prescribed under the law. Hence this petition was filed. In the meanwhile, the consignment was inspected by the DPP who ultimately on 22 2.2017 stated that four fungis have been identified in the Meal which are hazardous to plants. The DPP issues its letter on 23.2.2017 in which they have explained that the Meal is infected with harmful fungi which is detrimental and causes disease in plants and its import into Pakistan will endanger agriculture. Therefore in terms of Rule 13(1) of the Quarantine Rules, 1967 ("Rules"), the consignment was placed in quarantine and required to be shipped back or destroyed. Learned counsel argued that the petitioner does not import a plant or any part of a plant, hence the DPP has no jurisdiction in the matter. The petitioner imports a processed natural feed which is used in poultry feed and in no way can be categorized as a plant as defined under section 2(f) of the Pakistan Plant Quarantine Act, 1976 ("Act"), Learned counsel further argued that the act of respondent DPP is at the instance of the All Pakistan Solvent Extractors Association who have moved an application under Order I, rule 10 of the Civil Procedure Code, 1908 (CM No, 1073/2017) for impleadment as a party in this case. They are keen to stop all imports from India so as to develop their own products. Learned counsel also argued that the petitioner has a valid import permit dated 31.1.2017 and since the consignment has been cleared from any harm to human and animals and is in accordance with the standards laid down by the Pakistan Standards and Quality Control Authority ("PSQCA") it should be released. The petitioner's consignments were also tested by the HEJ. Karachi University at Karachi and there is nothing hazardous in the consignment. Therefore the DPP's reliance on its report dated 22.2.2017 and 23.2.2017 is totally baseless and without merit.
5. Report and parawise comments have been tiled by the respondent DPP. It was argued that the Meal is a high risk commodity and it poses bio-security risk to domestic agriculture. The imported Meal can seriously jeopardize the plant and agriculture produce of Pakistan as it contains fungi which is detrimental to plants. Hence its entry into Pakistan threatens the health of plants and therefore should not be permitted. It is noted that the respondents do not deny that earlier the petitioner has been importing the same Meal from India and that it was always released being free from injurious insects and diseases, however given that the instant consignment is contaminated it cannot be imported into Pakistan.
6. Learned DAG argued that import Permit issued on 31.1.2017 is a contract, the terms of which are binding on the petitioner. In terms of the conditions given in the Import Permit the consignment can only be released after a release order is given by the Plant Quarantine Authority on the approval of DPP. The Import Permit also provides that the consignment has to be free from insects and diseases, therefore he argued that the petitioner was aware that if the consignment is found to be infected in any manner its import into Pakistan will be refused.
7. Counsel for the applicant in CM No, 1073/2017 argued that the applicant All Pakistan Solvent Extractors Association is a necessary party to be impleaded as a. respondent. Learned counsel argued that the applicant has been granted a license by the Ministry of Commerce on 16.5.2013.
Learned counsel further argued that the applicant and its members are directly affected as a consequence of the assertions made by the petitioner, hence the applicant is a proper and necessary party.
8. Heard and record perused.
9. The question before the Court is whether the consignment of the petitioner was rightly quarantined under the Act and whether the DPP has delayed the release of the consignment. The petitioner imported soya bean Meal which is made from soya bean in order to make soya bean Meal, oil is extracted from the soya bean leaving behind husk and remnants of soya bean. This manufacturing process involves the cleaning, dehauling, grinding and extraction of oil from soya bean. The dehauled soya bean is used to prepare Meal which serves as a supplement of protein in animal feed. It is important to note that the petitioner has been importing soya bean Meal for a considerable period of time and its consignments have always been released by the respondents.
It is for the first time that an objection has been raised under the Act that the consignment of the petitioner is infected with harmful fungi which will cause disease in plants and can spread in Pakistan and can damage the crops of the country.
10. The International Plant Protection Convention, 1951 regulates the import and export of agriculture commodities. As per the Convention, for import of soya bean Meal it should be ensured that the Meal is free from stored grain pest and other purities including pest eaten and damaged grain and should be also free from soil, dirt of soil lumps. The Convention also states that any additional condition can be provided in the Phytosanitary Certificate and that is must be fumigated with appropriate fumigant. The objective of the Act is to give effect to the Convention and to provide for matters connected therewith. Section 2(f) of the Act defines plant as all species of plants or parts thereof whether living or dead including stems, branches; tubers, bulbs, corns, stock, bud-wood, cuttings, layers, slips, suckers, roots, green scum on stagnant pools, leaves, flowers, fruits and seeds. In terms of the act, the Federal Government may by notification in the official Gazette prohibit, restrict or otherwise regulate the import of any article or class of articles likely to cause infection to crop or plant or of any pest or any class of pests Soya bean Meal is not prohibited for import into Pakistan. The import of plant or plant material is regulated under the Rules framed under section 10 of the Act. The rules require that an import permit be issued for the purposes of import of plant or plant material. It also requires a valid certificate of inspection from the country of origin maintaining plant quarantine services stating that the plant or plant material is free from sand, soil or earth. The Rules also require that 'each consignment is subjected to an inspection at the point of entry for clearance and can be refused entry or destroyed, if in the opinion of the Plant Quarantine Officer, it is found to include insects or other organisms not specifically covered by the~ permit. All imports of plants or plant material are subjected to a Pest Risk Analysis to assess the phytosanitary risk and to mitigate any risks related to the import. The exporting country is required to fulfill the phytosanitary import conditions provided in the Import Permit and to certify through a valid phytosanitary certificate that the consignment is free from all pests and fulfills the import conditions of Pakistani The consignment on arrival in. Pakistan is quarantined and inspected in the light of the Import conditions specified ,in the import Permit. The Plant Quarantine inspector decides whether to release the consignment or to treat it, destroy it or return it back if in its opinion the consignment contains insects or other organisms not covered by the Import Permit. In the event of release, the DPP issues the Plant Protection Release Order and may make any treatment, if required.
11. For the purposes of import of the Meal, the petitioner was issued Import Permit dated 31.1.2017 by the Ministry of National Food Security and Research, Department of Plant Protection, Karachi. The import and release of the consignment was made subject to the following conditions: --
(1) The consignment is free from soil and accompanies with a valid Phytosanitary Certificate, issued by a competent authority of the country of origin declaring it to be free from insect pests and diseases or rendered so by effective treatment.
(2) Quarantine examination and treatment at the part of entry or any other place designated by the Director of Plant Protection or any officer so authorized by him and shall thereafter be released only after issuance of release order from competent Plant Quarantine Authority.
(3) Payment of such examination and/or treatment charges and as may be levied under rules.
(4) Additional conditions (on reverse)
(i) Consignment should be free from stored grain pest and other impurities including pest eaten and damaged grain and should also be absolutely free from soil, dirt and soil lumps.
(ii) The consignment must be fumigated with appropriate fumigant alongwith fumigation certificate.
(iii) The consignment should not be genetically (iv)Additional condition must be mentioned in phytosanitary certificate.
As per condition No,2, the Plant Quarantine Officer was required to examine the consignment and issue a release order if satisfied that the consignment is free from pests and other impurities and is free from soil, dirt and soil lumps. This certificate and release order was not issued in favour of the petitioner. Counsel for the petitioner argued at great length that the petitioner does not fall within the jurisdiction of the DPP and that the consignments imported by the petitioner are not plant or plant material as defined under rule 2(n) of the Rules. However, I am of the opinion that the argument is misconceived as the Import Permit itself provides that the relevant department is the DPP (Plant Quarantine Division) and for the purposes of release of goods it has to be examined by the Plant Quarantine Inspector as designated by the Director of DPP. Furthermore the Import Permit provides that the consignment pan only be released after a release order is issued by the DPP.
Therefore the petitioner's consignment had to be examined by the DPP and can only be released if a release order is issued by DPP. Furthermore as per the petitioner's contention this has been the continuous practice for a long time and it is only for this consignment that the petitioner had agitated the issue of DPP's jurisdiction. Therefore the DPP has jurisdiction and as per the import permit, the petitioner had consented to all the terms and conditions contained therein. The petitioner's case is also that the DPP could not have required an Analytical Report as per letter dated 16.2.2017 as it is not prescribed and was required to issue the release order. Even this understanding of the petitioner is misconceived as the release of the imported plant or plant material is subjected to the satisfaction of the Rani Quarantine Officer who has to ensure that the consignment is free from infection, pest or disease. Therefore if in the opinion of the Plant Quarantine Officer/DPP further investigation is required to ensure that the consignment is free from pest, disease or infection, and necessary test may be prescribed. Hence no illegality is made out on this basis.
12. The petitioner has also argued that the consignment was subjected to several tests, all of which have cleared the consignment from all issues and declared it fit for human and animal consumption. Therefore it is stated that the report of the DPP is malafide. The record shows that the consignment was examined by the PSQCA who issued its report on 20.2.2017. In terms of the report, the consignment was found within the parameters and limits of the yellow soya bean Meal. It is noted that the certificate issued by the PSQCA is not disputed nor is it relevant to the controversy at hand as the scope of their examination is to ensure that the Meal is as per the given quality and standards with reference to moisture, crude protein and crude fat. The consignment of the petitioner was also subjected to an analytical examination from the IAC located in University of Karachi, International Center of Chemical and Biological Sciences in five categories. In terms Of the Sample Analysis Report dated 22.2.2017, samples were taken for detection of Residual Pesticides and it was found free from viral diseases and free from residual pesticides, Melachite Green and Melamine. Samples were also taken for Gas Chromatography and Gas Chromatography Mass Spectrometric and as per the report dated 22.2.2017 the consignment complies with Soyabean Oil Specification. Samples were also taken for determination of bacteria and the report finds that the consignment is fit for human and animal consumption. Samples were also taken for DNA and the consignment was declared to be free of Pork DNA. Finally samples were taken for the detection of genetically modified organism and the consignment was found to be free of genetically modified DNA. Therefore in sum total the analytical reports finds that the consignment of the petitioner was free from viral diseases, free from bacteria making it fit for human and animal consumption. The objective of this report is to ensure that the Meal can be fed in some form to humans or animals. It does not comment on the effect of fungi on the plant or plant material or any disease related to plants or plant material. The DPP issued its report on 23.2.2017 wherein they have claimed that the Meal was infected with harmful fungi and advised that the consignment be destroyed or returned to the shipper abroad after treatment. It is noted that in terms of the record, the DPP issued a letter on 15.2.2017 in which they first communicated that they would wait for the results of the Analysis Test and that the status of the consignment will be decided in the light of the Analysis Report.
However, instead of waiting for the Analysis. Report, the DPP issued a report on 22.2.2017 and 23.2.2017 which states that four fungis are found in the consignment and further goes on to narrate that the existence of the fungis will cause risk to plants in Pakistan. Both tests appear to serve different purposes as the Analytical Report essentially approves the Meal for human and animal consumption meaning its nutritional value whereas the test of the DPP merely states it has fungi which is harmful for plants. Therefore reliance or the Analytical Report does not advance the case of the petitioner as the said Report had not tested the consignment for disease in plants or for fungi. In the event that the petitioner or DPP required further clarification they could have required some other independent test to ascertain whether the consignment can be released. However since the petitioner challenged the letter of 16.2.2017 requiring an Analytical Test, the matter was before the Court. Under the circumstances, there appears to be no illegality caused by the DPP and there is no illegality in the letter of 16.2.2017. Even otherwise no case on malafide has been made out nor any evidence to show that the DPP acted in collusion with the All Pakistan Solvent Extractors Association.
13.In view of the aforesaid, no case for interference is made out. The instant petition is dismissed.
CM No, 1073/2017
14. Since the main writ petition has been heard and dismissed, the instant CM has become infructuous, hence dismissed.