2023 (4) TMI 1243 - HC - Customs

High Court clarifies GMO Soybean import dispute, mandates accredited lab testing for accuracy.

M/s Make India Impex Versus Union of India and ors

The High Court addressed the divergence of views among statutory bodies regarding the import of genetically modified Soyabeans. The court accepted the ... Geo Chem Laboratory is an accredited Laboratory or not - validity of report issued by such laboratory - option of provisional release - HELD THAT:- Without going into the question of competence of Laboratory considering the importance of the issue raised and the fact that what is involved is genetically modified substance having larger implications, the suggestions of learned ASG accepted, as it would be a further precaution in this regard. Hearing of this petition is deferred to 7 June 2023. To be listed under the caption “For Directions”. ISSUES PRESENTED AND CONSIDERED 1. Whether divergence of views between statutory authorities (Customs, Food Safety and Standards Authority, and Genetic Engineering Appraisal Committee) regarding import clearance of genetically modified soyabeans requires reconciliation and a coordinated mechanism by the Central Government. 2. Whether determination of the extent of genetic modification in imported soyabean consignments should be made by an NABL-accredited laboratory using method and food matrix-wise testing, and whether a second laboratory test is appropriate where the on-record accredited laboratory lacks specific testing capability. 3. Whether a finding that genetically modified content is below 1% permits the option of provisional release of the consignment. 4. Whether the Port Trust's non-release of a consignment (pigeon peas) requires issuance of a written order within a defined period and whether the petitioner may amend proceedings to challenge such an order, including seeking urgent/interim relief from a vacation court. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Coordination among statutory authorities Legal framework: Multiple statutory authorities perform distinct functions under different statutes/regulatory schemes concerning import control, food safety and environmental biosafety. Effective administration requires harmonisation where their regulatory domains overlap. Precedent Treatment: The Court relied on institutional competence principles and administrative necessity to seek reconciliation; no specific precedents were cited in the order. Interpretation and reasoning: The Court noted an existing divergence of views between the three statutory bodies which created practical difficulty in deciding import clearance. Given the public interest and complexity of genetically modified substances, the Court accepted the learned ASG's proposal for a joint meeting to reconcile positions and directed the Central Government to consider a co-ordinating mechanism to avoid such conflicts in future. Ratio vs. Obiter: Ratio - where multiple statutory bodies have overlapping regulatory roles affecting the same subject-matter, reconciliation and a coordinated mechanism by the Central Government are appropriate to prevent inconsistent outcomes. Obiter - suggestion that the Central Government 'will consider' a coordinating mechanism is directive in tone but advisory as to the form such mechanism should take. Conclusions: The Court directed reconciliation through a joint meeting facilitated by the learned ASG and recommended that the Central Government consider establishing a coordinating mechanism to prevent future conflicts among statutory authorities. Issue 2 - Appropriate laboratory testing for GMO determination and role of NABL accreditation Legal framework: Determination of genetically modified (GM) content in imported food commodities requires laboratory testing that is method- and food matrix-specific; NABL accreditation denotes recognised testing competence for particular methods/matrices. Precedent Treatment: The Court treated accreditation and method-specific capabilities as relevant to admissibility and reliability of test reports; no authority was expressly followed or overruled in the order. Interpretation and reasoning: The learned ASG proposed categorising imports by GM content threshold (below 1% and above 1%) and obtaining testing from laboratories that possess method and food matrix-wise testing capability under NABL standards. Although an accredited laboratory (Geo Chem) had produced a report indicating GM content below 1%, the Court accepted a precautionary approach because the laboratory did not have the specific facility/method required. Consequently the Court directed that the sample already drawn be sent to a laboratory possessing the requisite method/matrix testing capability and NABL accreditation to produce a report for the Customs Department as early as possible. Ratio vs. Obiter: Ratio - where laboratory testing for GM content affects regulatory disposal of imported consignments, testing must be performed by a laboratory with NABL accreditation for the specific method and food matrix; an accredited report lacking method/matrix capability may warrant confirmatory testing. Obiter - the Court's acceptance of the ASG's categorisation into below-1% and above-1% is practical guidance rather than a definitive legal standard beyond the facts. Conclusions: The Court directed confirmatory testing by an appropriately accredited laboratory with method and food matrix capability before final administrative action; it treated the Geo Chem report as insufficiently dispositive given the laboratory's limitations and ordered a fresh report to be furnished promptly to Customs. Issue 3 - Provisional release when GM content is below 1% Legal framework: Regulatory thresholds (e.g., 1%) may determine whether an import requires further regulatory restrictions; provisional release is an administrative remedy contingent on reliable testing. Precedent Treatment: The order adopts a conditional administrative approach-provisional release may be considered if credible testing demonstrates GM content below the relevant threshold-and does not purport to set a universal rule for all contexts. Interpretation and reasoning: The learned ASG indicated that if testing by an appropriately accredited laboratory confirms GM content below 1%, the option of provisional release can be considered. The Court accepted this formulation as a practicable interim measure but linked it expressly to the result of competent testing. Ratio vs. Obiter: Ratio - provisional release of imported consignments may be considered where competent laboratory testing establishes GM content below the regulatory threshold; such release is conditional and fact-dependent. Obiter - the Court did not prescribe procedures or safeguards for provisional release beyond reliance on competent testing. Conclusions: The Court left open the possibility of provisional release conditioned on a reliable NABL-accredited laboratory report demonstrating GM content below 1% and directed prompt testing to enable consideration of that option. Issue 4 - Port Trust non-release, requirement of written order, amendment and vacation court remedy Legal framework: Administrative actions affecting possession or release of goods require reasoned, written orders; parties affected by such orders may amend pending petitions to challenge them and seek urgent relief before appropriate fora. Precedent Treatment: The Court applied established administrative law principles requiring written orders and procedural fairness; no express precedents were cited in the order. Interpretation and reasoning: The Court recorded that the Port Trust had not released a consignment and directed the Port Trust Authority to respond by way of written order within one week. The Court permitted amendment of the petition to challenge such order once received. The Court also clarified that if the Port Trust's order is adverse, the petitioner may seek urgent relief from the vacation court, subject to the vacation court's satisfaction of urgency. Ratio vs. Obiter: Ratio - administrative refusal to release goods should be accompanied by a written order, which can be challenged by amendment of proceedings; urgent/interim relief may be sought from an appropriate court (including vacation court) subject to usual urgency standards. Obiter - the Court's direction on timelines (one week) is case-specific procedural direction. Conclusions: The Port Trust must issue a written order within one week; the petitioner may amend the petition to challenge that order, and may seek urgent relief before the vacation court if urgency is established.