Through this single order I intend to decide Writ Petitions Nos, 11435-Q/2018, 13486-Q/2018 and 13700-Q/2018 as a common thread weaves through them. In all these petitions the Petitioners seek quashing of the FIRs registered against them under Section 21 of the Agricultural Pesticides Ordinance, 1971 (the" Ordinance" ) .
2. The facts of all the three petitions are somewhat similar . However , for the sake of brevity I would refer to those of W.P. No, 11435-Q/2018. In this case Petitioner No, 1 is the vendor of agricultura l inputs, including fertilizer and pesticides, and is carrying on business at Chowk Saleem-Abad Aali-W ala, Dera Ghazi Khan, under the name and style of Asghar Traders. Petitioner No, 2 is his Stock Incharge. On 17.7.2018, the Assistant Director (Plant Protection) and his team inspected the aforementioned shop of Petitioner No, 1 and collected samples of the pesticide called Chlorfenapyr 36% SC marketed by Petitioners No, 3 & 4 which were sent to the Pesticides Laboratory , Multan, for quality check and was found adulterated. Consequent thereupon, FIR No, 441/2018 dated 1.8.2018 was registered against the Petitioners at Police Station Kot Chutta, District Dera Ghazi Khan, for an offence under Section 21 of the Ordinance read with the relevant rules.
3. Malik Ali Muhammad Dhol, Advocate, who represented the Petitioners in all these petitions, submitted that the Ordinance inter alia aimed at providing quality pesticides to the farmers and prosecuting those who supplied adulterated or substandard products. In order to achieve this objective, in exercise of the powers conferred under Section 29 of the Ordinance, the Government of the Punjab had framed Punjab Agricultural Pesticides Rules, 2018 (hereinafter referred to as the "Rules"), which prescribed a comprehensive procedure for sampling and laboratory tests. Rule 22 mandated that the pesticides laboratory should be certified by the International Organization for Standardization (ISO). He contended that the laboratory which analyzed the samples in the present cases did not have the requisite certification so its reports had no legal value and the Petitioners could not be prosecuted on the basis thereof and the FIRs registered against them were liable to be quashed.
4. On the other hand, Mahar Nazar Abbas Chawan, Assistant Advocate General, contended that Rule 22 was directory in nature and not mandatory . Its non-compliance does not render any legal action void. Referring to the present cases he submitted that Province of the Punjab had set up four Pesticides Quality Control Laboratories located in Kala Shah Kaku, Faisalabad, Multan and Bahawalpur and one Provincial Pesticides Reference Laboratory at Kala Shah Kaku. All of them were duly notified under Section 13(1) of the Ordinance and were manned by competent staff and had the requisite equipment to perform the tests. They analyzed the samples referred to them as per Rules 43 & 44 by following the Food and Agriculture Organization guidelines. The laboratory at Multan whose reports are impugned in these petitions was also accredited to the Pakistan National Accreditation Council (PNAC) in accordance with the requirements of ISO/IEC 17025:2005 with effect from 2.7.2018. Scope of enhancement (i,e, inclusion of more products for testing under ISO 17025) of an ISO-accredited laboratory was a continuous activity . At the moment the aforesaid accreditation was only for four products/chemistries but 74 more were in the pipeline, including Chlorfenapyr 36% SC, Pyriproxyfen 10% EC and Emainectin Benzoate 1.9 EC, which were involved in these three cases. The learned Law Officer further contended that the Petitioners were supplying substandard and adulterated pesticides to the farmers and were not only exploiting them but also causing loss to the national economy . It was time that they should be dealt with an iron hand. He argued that proper place of procedure in any system of administration of justice was to help people get their rights and not to stand in their way. All technicalities should be avoided unless their compliance was essential on the ground of public policy . He prayed that these petitions be dismissed with costs.
5. I have heard the learned counsel and have perused the record.
6. In the year 1971 the President of Pakistan promulgated the Ordinance to regulate import, manufacture, formulation, sale, distribution and use of pesticides in agriculture throughout the country . Thereafter the Federal Government framed the Agricultural Pesticides Rules, 1973, to operationalize it. In the wake of the Constitution (Eighteenth Amendment) Act, 2010, the Punjab Assembly enacted the Punjab Agricultural Pesticides (Amendment)
Act, 2012 (XXV of 2012), and adopted the Ordinance which is still in force. Subse quently , the Punjab Government framed the Agricultural Pesticides Rules, 2018, under Section 29 of the Ordinance which were published in the Punjab Gazette vide Notification No, 79 of 2018 dated 31.5.2018. The controversy in the present cases revolves around the consequence of Rule 22 or, to put it in another way, whether the said Rule is mandatory or directory . For facility of reference, it is reproduced hereunder:
22. Pesticide laboratory .--(1) The pesticide laboratory shall be duly certified by international organization for standardization (ISO) and perform the following functions:
(a) analyze and test samples of pesticides; and
(b) carry out such duties as may be entrusted by the Secretary Agriculture.
7. It is by now well settled that the rules validly made under a statute have the same effect as the statute itself and are enforced as such. The Supreme Court of India highlighted this point in State of Uttar Pradesh and others v.
Babu Ram Upadhya (AIR 1961 SC 751) as under: "Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation."
In view of the foregoing, the same principles that are followed for interpretation of statutes are employed for construction of rules.
8. In his opinion in Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178), Fazal Karim, J. wrote that statute was an authentic expression of the legislative will and it was the function of the Court to interpret that document according to the will of the people who made it. In an earlier case, reported as Province of West Pakistan v. Mahboob Ali and another (PLD 1976 SC 483), the Hon'ble Supreme Court of Pakistan observed that "it is the duty of the Court to find out the intention of the lawmaker . The whole purpose of interpretation of statute is to ascertain the intention of the lawmaker and to make it ef fective".
9. The term "intent" has various connotations. In one sense it carries the conce pt of purpose and signifies the general aim or policy which pervades a statute (60 Har v. L. Rev. 370-375). Therefore, while construing a particular provision the Court would attend to the nature, scope and object of the statute and consider the consequences of interpreting the said provision one way or the other . It Would also look at the reason why that enactment was passed. "Perhaps the reason was to remedy some existing evil or correct some difficulty in existing law or to create a new right or a new remedy ." (Crawford on Statutory Construction).
10. Generally speaking, where a mode of performing a duty is laid down by law, it must be performed in that particular manner or not at all. This rule flows from the maxim Expressio unius est exclusio alterius. However , the question arises as to whether non-compliance with the prescribed procedure would invalidate the entire action or proceedings. There is no principle of universal application to categorize a provision as mandatory or directory . It depends upon the intent of the legislature rather than the phraseology used. Maxwell on The Interpretation of Statutes (Twelfth Edition) at p.314 writes: "It is impossible to lay down any genera l rule for determining whether a provision is imperative or directory . ;No universal rule', said Lord Campbell L.C., 'can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Court of justice to try to get at the real intention of the Legislature by carefu lly attending to the whole scope of the statute to be construed'. And Lord Penzance said: 'I believe, so far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter , consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory ."
11. Similarly , in Taxmann's Interpretation of Statutes (Second Edition) D.P . Mittal states: "There are no ready tests or invariable formula to determine whether a provision is mandatory or directory . The broad principle of the statute is important. The object of a particular provision must be considered. The link between the two is most important. The weighing of the consequences of the holding a provision to be mandatory or directory is vital and more often than not, it is responsible for determination of the very question that the provision is mandatory or directory . Where the design of the statute is the avoidance or prevention of the public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory , so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of."
The Hon'ble Supreme Court of Pakistan has approved this view in Niaz Muhammad Khan u. Mian Fazal Raqib (PLD 1974 SC 134) and Apollo Textile Mills Ltd. and others u. Soneri Bank Ltd. (PLD 2012 SQ 268 = 2012 CLD 337).
12. Ordinarily the words "shall" or "must" show that the Legislature intended to make the provision mandatory while use of the word "may" would indicate that it wanted to make it directory but they are often used interchangeably .
N.S. Bindra's Interpretation of Statutes (T enth Edition) says.
"The word 'shall' in its ,ordinary signification is mandatory though there may be considerations which influence the Court in holding that the intention of the legislature was to give discretion. But this word is not necessarily mandatory , not always mandatory . Whether the matter is mandatory or directory only depends upon the real intention of the legislature which is ascertained by carefully attending to the whole scope of the statute to be construed."
13. Crawford in " The Construction of Statutes" (2014 Edition) at pp.520 to 522 states: "If the language of the statute, considered as a whole and with due regard to its nature and object reveals that the Legislature intended the words 'shall' and 'must' to be directory , they should be given that meaning. Similarly , under the same circumstances, the word 'may' should be given a mandatory meaning, and especially where the statute concerns the rights, and interests of the public, or where third persons have a. claim de jure that a power shall be exercised, or whenever something directed to be done for the sake of justice or the public good, or is necessary to sustain the statute's constitutionality ."
14. In Muhammad Saleh v. The Chief Settlement Commissioner , Lahore and 2 others (PLD 1972 SC 326), the Hon'ble Supreme Court of Pakistan observed: "It is now well settled that the words "may" and "shall" in legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance."
15. As a general rule, it is now firmly settled that where the consequence of failure to comply with a particular provision is not mentioned it is taken as directory and where the consequence is expressly mentioned the provision is mandatory . In Niaz Muhammad Khan v. Mian Fazal Raqib (PLD 1974 SC 134), the Hon'ble Supreme court of Pakistan held: "As a general rule however , a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently , if the Act is directory , its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision."
The above view was reiterated in Maulana Nur-ul-Haq v. Ibrahim Khalil (2000 SCMR 1305 ) and Apollo Textile Mills Ltd, and others v . Soneri Bank Ltd. ( PLD 2012 SC 268 ).
16. In a nub, there is no litmus test to determine whether a statutory provision or rule is mandatory or directory . The Court has to find out the intention of the legislature by adopting the purposive rather than literal approach and would prefer an interpretation which advances the objects of the Act over that which defeats it.
17. In view of the foregoing, it is necessary to understand the legislative intent of the Ordinance and the scope of the Rules. The objective of the Ordinance is well- identified. It seeks to regulate import, manufacture, formulation, sale, distribution and use of pesticides in agriculture and ensure provision of quality pesticides to the farmers. It lays special emphasis on their quality and contains extensive provisions to control it. Sections 13 & 14 obligate the Government to set up a pesticides laboratory and appoint analysts therein. Sections 15 to 17 provide for appointment of Inspectors and empower them to take samples from the pesticides imported, formulated or intended to be sold in the market and despatch them to the pesticides laboratory . Section 18 stipulates that the report of the pesticides laboratory duly signed by the Government Analyst would be a conclusive evidence of the particulars stated therein unless the perso n from whose possession the sample was taken disputes its correctness in which cage he may make a representation to the Government to repeat the test. Section 21 criminalizes sale of adulterated and substandard pesticides and holding them in stock. It is important to note that sampling and their credible laboratory analysis is pivotal in realizing the objective and purpose of the Ordinance.
18. The Rules have been framed under Section 29 of the Ordinance to carry out its purpose. Rules 23 to 37, prescribe the procedure for collection of samples, ,their transmission to the laboratory and testing. Rule 43 stipulates the analytical methods that are to be adopted for examination of the samples in the pesticides laboratory .
Rule 22, however , requires the said laboratory to have ISO Certification.
19. The Agricultural Pesticides Rules, 1973, which were previously in force contained identical provisions so far as analytical methods are concerned. However , there were complaints from all quarters that most of the pesticide laboratories notified by the Government were not up to the mark and there were vast variations in their results. It is in this backdrop that the Agricultural Pesticides Rules, 2018, mandate that the pesticides laboratory shall be duly certified by the ISO. The following excerpt from Paragraph-6 of the report submitted by the Additional Secretary (Task Force) in these constitutional petitions is quite instructive: "The aforesaid Punjab Agricultural Pesticides Rules were got approved from the Competent Authority during the year 2018 and it became obligatory thereafter to get ISO-17025 Accreditation. Prior to the approval of these rules it was blamed by all the stakeholders particularly by the people from pesticide business that the Pesticide Regulatory Laboratories were incompetent in all respects inclusive of trained manpower viz-a-viz equipment/machinery and Certified Reference Materials(s) etc. Now with the advent of ISO-17025 Certification, labs proved that they have the required potential and professional capabilities in rendering analytical services."
20. By requiring the pesticide laboratories to have ISO Certification, Rule 22 ensures reliable means to check the quality of the pesticides supplied in the market and punish those who engage in any malpractice. Inasmuch as Section 18(3) attaches evidentiary presumption to the report of the pesticide laboratory , it has to be authentic. If it is not it will not only prejudice an accused being tried for an offence mentioned in the Ordinance but would also defeat his right of fair trial guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973.
21. In The State through Regional Director FIA v. Imam Bakhsh and others (2018 SCMR 2039 ) the Hon'ble Supreme Court of Pakistan was confront ed with a similar question as has been raised before me in the present petitions. The Control of Narcotic Subs tances Act, 1997 (the "Act"), has been enacted to control production, processing and trafficking of narcotic drugs and psychotropic substances and provides punishments for contravention. Section 34 of the Act calls for establishing Narcotics Testing Laboratories and Section 36 mandates that the Government Analyst shall deliver a report in the prescribed manner after carrying out tests and analysis of the sample of the narcotics. The said report under Section 36(2) is conclusive and is admissible in evidence without formal proof. The Government has framed the Control of Narcotics Substances (Government Analysts) Rules, 2001, to carry out the purposes of the Act and Rule 6 thereof provides that "the report should contain full protocols of the test applied." The State urged that Rule 6 was directory as it did not specify any consequence for non- compliance. The Apex Court rejected the contention holding that the rule in question was mandatory . Syed Mansoor Ali Shah, J. speaking for the Court said: "Our Court has held while determining the status of a mandatory or directory provision that "perhaps the cleverest indicator is the object and purpose of the statute and the provision in question" and to see the 'legislative intent as revealed by the examination of the whole Act' :... Non-compliance of Rule 6 can frustrate the purpose of the Act....The evidentiary assumption attached to a report of the Government Analyst under Section 36(2) of the Act underlines the statutory significance of the report. Therefore, details of the test and analysis in the shape of the protocols applied for the test became fraudulent and go to the root of the statutory scheme. Rule 6 is, therefore, in the public interest and safeguards the rights of the parties. Any report (Form-II) failing to give details of the full protocols of the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of the Government Analyst under Section 36(2). Resultantly , it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in Ikramullah's case [ 2015 SCMR 1002 ].
22. The ratio of Imam Bakhsh's case (supra) is fully applicable to the present cases. Rule 22 is fundamental to the statutory scheme of the Ordinance. It is in the public interest and safeguards the rights of all concerned.
Furthermore, it aims at creating confide nce of the general public in the Pesticide Regulatory Laboratories and addressing their complaints about their results. For all these reasons, I hold that Rule 22 is mandatory . The excerpts from the report of the Additional Secretary (Task Force) reproduced in Paragraph-19, above, not only support my opinion but also admit that the legislative intent was to make ISO Certification mandatory .
23. Admittedly , in the present cases FIRs were registered on the basis of non-ISO certified lab reports. The Petitioners cannot be prosecuted on the basis thereof. Therefore, Writ Petition Nos, 11435-Q/2018, 13486-Q/2018 and 13700-Q/2018 are accepted. The FIRs impugned therein are declared to be without lawful authority and are hereby quashed . No order as to costs.