under criminal appeal no 1/2013 - lawctopus · pdf filewto ... narmada bachao andolan and anr....

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BIOREV JEEVANTI LTD REPRESENTED BY DR.G.D.MAITI & 5 OTHERS ………(APPELLANTS)

SANGALORE AGRICULTURAL UNIVERSITY REPRESENTED BY DR.P.CHAWLA

(VICE-CHANCELLOR) & 5 OTHERS ……………………..…………………..(APPELLANTS)

NATIONAL BIODIVERSITY AUTHORITY REPRESENTED BY ITS CHAIRPERSON...(APPELLANTS)

v.

FUTURE FARMER FOUNDATION REPRESENTED DR.TAMANNA SHENOY & 5 OTHERS

(RESPONDENTS)

BEFORE

THE HON’BLE HIGH COURT OF SANGALORE

UNDER CRIMINAL APPEAL NO. 1/2013

MEMORANDUM ON BEHALF OF THE APPELLANTS

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MEMORANDUM FOR APPELLANTS

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ..................................................................................................... IV

INDEX OF AUTHORITIES ........................................................................................................ V

STATEMENT OF JURISDICTION ............................................................................................ IX

STATEMENT OF FACTS .......................................................................................................... X

ISSUES RAISED ................................................................................................................... XIII

SUMMARY OF ARGUMENTS ............................................................................................... XIV

ARGUMENTS IN DETAIL ....................................................................................................... - 1 -

[ISSUE:I] THE APPELANTS HUMBLY SUBMITTED THAT THE APPEAL IS MAINTAINABLE

BEFORE THE SANGALORE HC. ............................................................................................. - 1 -

[1.1]THE CASE IN HAND IS A FIT CASE FOR HC.................................................................. - 1 -

[1.1.1] HC are entitled to entertain the petition to determine if the proceedings were not an

abuse of process of court. .................................................................................................. - 1 -

[ISSUE:II] THE APPELLANT HUMBLY SUBMITS THAT CRIMINAL COURT ERRED IN

CONVICTING BJL AND ITS OFFICIAL FOR VIOLATION OF SECTION 3 OF THE B D ACT, 2002.- 3

-

[2.1] BJL DOES NOT COME UNDER THE PREVIEW OF SECTION 3 OF THE ACT. ....................... - 3 -

[2.2] BJL COMES UNDER THE EXCEPTIONS TO SEC 3 OF THE ACT. ........................................ - 4 -

[2.2.1] BJL comes within the exception given under section 5 of Biodiversity Act. .......... - 4 -

[2.3] IT COMES WITHIN THE PROTECTION GIVEN UNDER THE PROVISO TO SECTION 57 (1) OF BD

ACT. ..................................................................................................................................... - 5 -

[2.4] CBD PROVIDES FOR INBUILT FLEXIBILITY WHICH MUST BE GRANTED TO BJL. ............ - 6 -

[2.5] BJL PREVENTED THE FARMERS FROM HARMFUL IMPACT OF PESTICIDES ON THEIR HEALTH

AND BT CROP IS AS SAFE AS ITS NON-BT COUNTERPART........................................................ - 6 -

[ISSUE:III].THE RESPONDENT HUMBLY SUBMITS THAT THE CRIMINAL COURT ERRED IN ITS

FINDING THAT SAU DOES NOT COME UNDER EXCEPTION 5 OF THE BD ACT AND ALSO ERRED

IN DIRECTING NBA TO RECOVER COMPENSATION. ............................................................ - 8 -

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[ 3.1] SAU CANNOT BE CONVICTED FOR VIOLATING SECTION 4 OF THE ACT AS IT IS EXEMPTED

UNDER SECTION 5. ................................................................................................................ - 8 -

[3.1.1] The Agreement between BJL and SAU involved receipt of technology from BJL side

only. .................................................................................................................................... - 8 -

[3.1.2] The agreement was not for commercial utilization of the developed crop. ........... - 8 -

[3.1.3] Approval of NBA was not required since SAU is exempted under section 5 of the Act.

............................................................................................................................................ - 9 -

[3.2]BJL UNDERTOOK THE PROJECT TO HELP FARMERS AND HENCE PROVIDING FOR FAIR AND

EQUITABLE BENEFIT SHARING. ........................................................................................... - 11 -

[ISSUE:IV] THE CRIMINAL COURT ERRED IN MAKING ADVERSE REMARKS ON CONDUCT OF

NBA AND THE SAME IS ENTITLED TO BE EXPUNGED ....................................................... - 12 -

[4.1] THAT THE COURT IN ITS INHERENT JURISDICTION CAN EXPUNGE THE REMARK, TO

SECURE THE END OF JUSTICE. ............................................................................................. - 12 -

[4.1.1] Whether there is evidence on record bearing on that conduct justifying the remarks.-

12 -

[4.1.2] Whether it is necessary for the decision of the case, as an integral part

thereof, to animadvert on that conduct. ........................................................................... - 13 -

[4.2] THAT THE NEGLIGENCE OF NBA WAS NOT JUSTIFIED ............................................... - 13 -

[ISSUE:IV] IT IS SUBMITTED THAT SECTION 3 OF THE BIODIVERSITY ACT IS

UNCONSTITUTIONAL ......................................................................................................... - 14 -

[5.1] THAT SECTION 3 IS IN VIOLATION OF ARTICLE 14 OF THE INDIAN CONSTITUTION. ..... - 14 -

[5.2] NO GUIDELINES FOR CONTROLLING THE DISCRETION OF NBA. ................................. - 15 -

PRAYER ............................................................................................................................. XVI

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LIST OF ABBREVIATIONS

§………………………………………………….. Section

¶…………………………………………………...Paragraph

AIR ………………………………………………All India Reporters

Art...........................................................................Article

BD Act....................................................................Biodiversity Act, 2002.

Biotec......................................................................Biotechnology

BJL..........................................................................BioRev Jeevanti Limited

BT…………………………………………………Bacillus Thuringiensis

CBD........................................................................Convention on Biological Diversity

C.G..........................................................................Central Government

Corp.........................................................................Corporation

CrPC........................................................................Code of Criminal Procedure

DBT.........................................................................Department of Biotechnology

EPA.........................................................................Environment Protection Act

FFF………………………………………………..Future Farmer Foundation

FSB……………………………………………….Fruit and Shoot Borer

GMO.......................................................................Genetically Modified organism

Gov.........................................................................Government

MoEF......................................................................Ministry of Environment and Forest

NBA........................................................................National Biodiversity Authority

SAU……………………………………………….Sangalore Agricultural University

SC………………………………………………....Supreme Court

WTO........................................................................World Trade Organisation

v...............................................................................Verses

US............................................................................United State

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INDEX OF AUTHORITIES

CASES

Chhotu Ram v. Urvashi Gulati and anr. AIR 2001 SC 3468 ................................................. - 2 -

Chiranjit Lal v. Union of India, AIR 1951 SC 41 ................................................................ - 14 -

Kartar singh v. State of Punjab, 1994 SCC (3) 569. .............................................................. - 1 -

Lawrence Gomes v. The State Of West Bengal (2002) 1 CALLT 395 HC ........................ - 12 -

Madhosingh and Ors. v. State of Rajasthan, AIR 1954 Raj 197 ......................................... - 15 -

Maharashtra Academy of Engineering v. State of Maharastra, (2001) 10 SCC 166 ............. - 2 -

Niranjan Patnaik vs Sashibhusan Kar & Anr 1986 AIR 819, 1986 SCR (2) 470................ - 12 -

North East Finance Corporation v. UOI, AIR 2000 Sikkim .................................................. - 5 -

Paul v. Virginia, (1868)19 Law Ed 357. .............................................................................. - 14 -

Rama Vilas Service (P) Ltd. v. C. Chandrasekaran and Ors., AIR 1965 SC 107. ............... - 14 -

State of Karnataka v. Registrar General, AIR 2000 SC 2626 .............................................. - 13 -

State of Madhya Pradesh v. Narmada Bachao Andolan and Anr. AIR 2012 SC 260 ......... - 13 -

Telesound India Lts., In re, (1983) 53 Com Cases 926 at 940 (Del). .................................... - 5 -

BOOKS

1 CASE STUDY IN FIELD TRAIL FOR DEVELOPING COUNTRIES (1st ed., 2009). .......................... - 7 -

1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed. 2010). ........................................ - 14 -

2 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 1661(4th ed. 2010) ............................... - 1,3 -

2 PINGALI VENUGOPAL, GM CROPS CONTROVERSY: STAKEHOLDER ANALYSIS OF THE CASE

OF BT BRINJAL (EGGPLANT) IN INDIA 852-863 (August 2012). ......................................... - 7 -

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22 N. K. KUMAR ET AL., INDIAN BIOTECHNOLOGY-RAPIDLY EVOLVING AND INDUSTRY LED

NATURE BIOTECHNOLOGY ( 2004). .................................................................................... - 6 -

GEERTRUI VAN OVERWALLE, GENE PATENTS AND COLLABORATIVE LICENSING MODELS,

PATENT POOLS, CLEARINGHOUSE, OPEN SOURCE MODELS AND LIABILITY REGIMES 227

(2009). ................................................................................................................................ - 9 -

PHILIPPE CULLET, INTELLECTUAL PROPERTY PROTECTION AND SUSTAINABLE DEVELOPMENT

92 (2005). ........................................................................................................................... - 6 -

TIMOTHY M. SWANSON, INTELLECTUAL PROPERTY RIGHTS AND BIODIVERSITY

CONSERVATION, AN INTERDISCIPLINARY ANALYSIS OF THE VALUES OF MEDICINAL PLANTS

(1998). .............................................................................................................................. - 10 -

V N SHUKLA, CONSITUTION OF INDIA 115 (10th

ed., 2007). ................................................ - 14 -

STATUTES AND NOTIFICATIONS

Biodiversity Act, 2002 ........................................................................................... - 2 ,4,8,10,11-

Code of Criminal Procedure, 1976 ........................................................................................ - 2 -

Constitution of India, 1950 .................................................................................................... - 2 -

Environmental Law Notification No: S.O.1911 (E), Central Government Issues Guidelines

for International Collaboration Research Projects Involving Transfer or Exchange of

Biological Resources ( 8 November, 2006) ............................................................... - 5,9,10 -

The All India Services (Confidential Rolls) Rules,1970. .................................................... - 12 -

CONVENTIONS AND TREATISES

Convention on Biological Diversity, 1992. ...................................................................... - 6,11 -

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Nagoya protocol on access to genetic resources and the fair and equitable sharing of benefits

arising from their utilization to the convention on biological diversity........................ - 9,11 -

ARTICLES

19 Julia Freeman, How do imagined farmers negotiate actual risks? Biosafety trade-offs in

Bt cotton production in Andhra Pradesh, India 166 (2012),

http://jpe.library.arizona.edu/volume_19/Freeman.pdf ..................................................... - 7 -

Madhav Gadgil, India’s Biological Diversity Act 2002: An Act for the New Millennium . - 14 -

Technology Transfer Agreement, Majmudar & Co.,

http://www.majmudarindia.com/pdf/Legal%20aspects%20of%20technology%20transfer

%20agreements.pdf (lat visited August 3,2013). ............................................................. - 10 -

OTHER AUTHORITIES

33 Halsbury’s Laws of India 241 (2007). .............................................................................. - 2 -

34 Halsbury law of India 63 (2007). .................................................................................... - 14 -

35 Halsbury’s Laws of India 135 (2007). .............................................................................. - 1 -

BRYAN A. GARNER, BLACK’S LAW DICTIONARY 869 ( 9th

ed., 2009). ................................... - 4 -

Explanatory Notes on Certain Sections of the Biological Diversity Act, 2002, NATIONAL

BIODIVERSITY AUTHORITY , http://nbaindia.org/content/565/56/1/explanatorynote.html

(last visited August 09,2013) .......................................................................................... - 5,8 -

In a letter to Sri. Shivanna, Member Secretary, Karnataka Biodiversity Board (15 February

2010),http://www.esgindia.org/sites/default/files/campaigns/brinjal/press/esg-

karbioboard-btbrinjal-petition-12021.pdf. ......................................................................... - 5 -

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Minutes of meeting, 2nd

meeting of Expert Committee on Bt Brinjal (3 July,2007),

www.moef.nic.in/divisions/csurv/bt_brinjal.doc ............................................................... - 7 -

NBA’s letter to secretary of Karnataka biodiversity Board for violation of BD Act relating

to access and utilization of local brinjal varieties for development of Bt

brinjal(25July,2011),http://www.esgindia.org/sites/default/files/campaigns/brinjal/press/es

g-karbioboard-btbrinjal-petition-12021.pdf. ...................................................................... - 4 -

University of Agricultural science, Dharwad in a letter to Chief Conservator of Forests and

member Secretary Karnataka Biodiversity Board (17 May,2005)

,http://www.esgindia.org/sites/default/files/campaigns/brinjal/press/esg-karbioboard-

btbrinjal-petition-12021.pdf. .............................................................................................. - 7 -

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STATEMENT OF JURISDICTION

THE APPELLANTS HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE HIGH COURT OF

SANGALORE, THE MEMORANDUM FOR THE APPELLANTS UNDER THE CRIMINAL

APPELLATE JURISDICTION OF THE HIGH COURT.

APPELLANT ALSO INVOKE JURISDICTION OF HIGH COURT UNDER ART. 226 OF THE

CONSTITUTION OF INDIA,1950.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE

PRESENT CASE.

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STATEMENT OF FACTS

[ I ] BACKGROUND HISTORY OF COUNTRY INDUS

1. Indus is a developing country with the world’s 2nd

largest population having 13%of flora

and 7 % of world fauna. In regard to value environment, Indus made legislation for protection

of environment around 1986 and also negotiated different conventions and treaties related to

environment. Indus ratified the CBD in April 2004.Known for the research capabilities and

innovativeness, Indus grew up as substantial power in world affair, on the other hand rapid

strides in the field of Biotechnology had given immense power to find solution to various

problem faced by mankind.

2. Soon Indus became top priority among other countries because of the market it offered to

exploit. Later on it signed an Agreement on TRIPs in 1995. However, INDUS never allowed

for Plant Patents. In 2001 it had enacted the Protection of Plant Varieties and Farmers Rights

Act, 2001. INDUS also came out with the BD Act in 2002.

3. By late 90’s, the development and future potential of Indus grabbed the attention of many

of the world’s largest seed companies, which started conducting research and were acquiring

Indian Seed Companies as well. RULES FOR THE MANUFACTURE, USE, IMPORT,

EXPORT AND STORAGE OF HAZARDOUS MICRO ORGANISMS GENETICALLY

ENGINEERED ORGANISMS OR CELLS under the Environment Protection Act, 1986 were

the only rules governing biotechnology at that point of time in Indus.

[II] INCORPORATION OF BT GENE IN COTTON AND RELATED CONSEQUENCES

4. BioRev Corp, a company registered in Sardonia, acquired 26% of shares in Indian Seed

company Jeevanti India Pvt. Ltd. And so the name of the company was changed into BioRev

Jeevanti Ltd.(BJL). BioRev Corp. has patented a BT gene GRC and the same was

incorporated into the cotton seeds in or around 1998 and by 2002, the DBT of the Gov of

INDUS gave commercial approval for marketing the cotton seeds. By 2010, BioRev Corp by

licensing is GRC gene, owned more than 90% of the Indus market. It also bought statistic of

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preventing large scale suicide and changing livelihood of farmers. But in 2009, it was found

out that Red Bollworm started attacking cotton plant by being resistant to the GRC gene for

which use of GRC-b was advised.

[III]. PROBLEM ASSOCIATED WITH THE USE OF BT COTTON SEEDS

5. Dr. Pillai showed his concerns towards the loss of traditional varieties of cotton seeds

because out of 300 varieties only 10 were used by the BJL for BT technology. Also farmer

stopped saving seeds which resulted in unavailability of traditional seeds. Dr.Tamana Shenoy,

expert in plant genetics started a Trust name Future Farmer Foundation in order to improve

the farming by tradition method. She highly criticised the use of biotechnology in the

agriculture field as farming will be controlled by foreign companies by their control over

gene.

[IV] APPROVAL GIVEN BY DBT

6. The DBT gave approvals for Eggplant considering its advanced stage of research. However

unknown to the people of INDUS, BJL had started research in 1998 on the Bt.gene and had

incorporated the same in cauliflowers, ladies finger, tomato, rice, and potato and egg plant.

The report was submitted to the Department of Biotechnology by Dr.Nirmala Kanan. Later on

in 2008, DBT gave commercial approval to GM eggplant variety of BJL. Due to the

widespread protests across INDUS, the minister for Environment put a moratorium on the use

of Bt. Brinjal.

[V] NBA’S ACTION ON BREACH OF BD ACT, 2002

7. The FFF along with 5 other farmers who were cultivating seeds of BJL, sent a notice to

NBA to look into the matter with the specific allegation of breach of sec. 3 & 4 of BD Act,

2002, and also brought attention of the Government of Indus to Sec.36 (4) (ii) of the

Biological Diversity Act.

8. NBA started its inquiry and found that the research started much before the act was came

into force. However the actual incorporation of Bt gene in five popular varieties was only

done in 2005, when the agreement was signed between BRJ and SAU. The VC of SAU was

called upon for an explanation by NBA, who wrote back stating that he was exempted from

section 5 of BD Act, 2002 as he was conducting research under the guidelines of Gov of

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Indus. He also informed about the project that it was partly funded by Gov of Indus and

SARDONIA National University and also the Gov of SARDONIA which was based upon a

High Level Technology Transfer agreed to by Gov of INDUS and SARDONIA.

12. BJL approached NBA and stated that the project was to support poor farmers and no

commercial exploitation was allowed, and also showed the document of permission granted

for transfer research results and the chairman also approved the changes to standard clauses

that prohibited transfer of biological material without seeking any legal advice.

[VI] FFF ATTEMPT TO CONVICT BJL AND SAU

13. FFF sought all documents collected through RTI, which clearly indicates that the

agreement had nothing to do with transfer technology, and stated that without data of research

trials of 2 seasons, BJL would not have seek to achieve regulatory approval from DBT. FFF

with 5 other farmers approached the Sangalore HC, accusing BJL & VC and other

functionaries of SAU along with NBA for dereliction of duty and negligence causing death of

some people.

14. SAU in its defence stated that they are exempted under sec. 5 as project was based on tech

transfer agreement and has nothing to do with commercial exploitation but to help poor

people. BioRev scientists stated that they used traditional back crossing to incorporate the

seed into the traditional varieties that were always in the possession of the scientists from the

Sangalore Agricultural University

[VII] JUDGMENT OF CRIMINAL COURT

15. Criminal Court convicted VC of SAU for 3years and other two officers for 2 years for

violating sec. 4. Also criticized the role of NBA but didn’t convict them because of lack of

evidence for the cause of death. However the court stated that NBA failed to do their duty and

since no evidence of corruption was brought to its notice, it has no grounds to punish the

officers. The order of the criminal court was appealed by BJL and SAU and NBA moved to

expunge the remark made by criminal court.

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QUESTIONS PRESENTED

1. WHETHER THE APPEAL IS MAINTAINABLE BEFORE SANGALORE HIGH COURT?

2. WHETHER CRIMINAL COURT ERRED IN CONVICTING BJL UNDER SECTION 3 OF

BIODIVERSITY ACT, 2002?

3. WHETHER CRIMINAL COURT ERRED IN CONVICTING SAU UNDER SECTION 4 OF

BIODIVERSITY ACT, 2002?

4. WHETHER THE REMARK MADE BY CRIMINAL COURT IS LIABLE TO BE EXPUNGED?

5. WHETHER SECTION 3 OF THE BIODIVERSITY ACT, 2002 IS CONSTITUTIONALLY VALID?

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SUMMARY OF ARGUMENTS

[ISSUE:I] THE APPEAL IS MAINTAINABLE BEFORE THE SANGALORE HIGH COURT

In the exercise of extraordinary jurisdiction, HC should take into consideration the important

question of law and constitutional issues and is entitle to entertain the petition to determine if

the proceedings were not in abuse of process of court. In the present case, magistrate court has

exercised its power beyond its jurisdiction by entertaining the petition, which is otherwise not

maintainable under section 61 of the BD Act, 2002 and under section 29 of Cr.P.C and

therefore the petition in maintainable before High Court under Article 226 of Indian

Constitution.

[ISSUE:II]CRIMINAL COURT ERRED IN CONVICTING BJL AND ITS OFFICIAL FOR

VIOLATION OF SECTION 3 OF THE BD ACT, 2002

Section 3 of BD Act is not applicable in the present case as BJL has not obtained any

biological resources occurring in Indus for research or commercial utilization or b for bio-

survey and bio-utilization. More over even if, it is to be assumed that BJL comes under

Section 3 of the Act then also is wont be held liable as exception under section 5 and proviso

to section 57 (1) of the BD Act will come into picture. BJL in fact prevented the farmers from

harmful impact of pesticide spray as required by CBD.

[ISSUE:III]SAU COMES UNDER EXCEPTION 5 OF BD ACT, 2002 AND BJL IS NOT LIABLE TO

PAY COMPENSATION TO NBA.

The agreement between BJL and SAU involved receipt of technology from BJL to SAU only.

The agreement was not for commercial utilization provided in section 2 (f) of BD Act, as the

technique included conventional breeding. Approval of NBA was not required since SAU is

exempted under section 5 of the BD Act by fulfilling conditions required by section 5 (3) of

the same Act.

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BJL undertook the project to help farmers and hence providing for fair and equitable benefit

sharing. The project under taken was not for commercial purpose and in carrying on so it

fulfilled objectives of CBD and Nagoya protocol. Therefore, the direction given by Criminal

Court to NBA to impose fine on BJL would not be justified.

[ISSUE:IV]THE ADVERSE REMARK MADE AGAINST NBA SHOULD BE EXPUNGED.

The criminal court ACCEPTED the fact that no evidence of corruption against NBA was

brought to its notice and also the cause of death could not be established. Such harsh and

disparaging remark should not be made unless it is necessary for the decision of the case.

Since NBA acted diligently and after finding some irregularity in the agreement NBA started

inquiry to look into the matter and lodged criminal complaint against the same, this shows

that NBA performed its duty diligently. The remark made against NBA is unwarranted,

uncalled and not even based on any material/ evidence on record.

[ISSUE:V] SECTION 3 OF THE BIODIVERSITY ACT IS UNCONSTITUTIONAL

The classification made under section 3 of the BD Act, between the person who is a “citizen

resident in India” and “other person” is not based on reasonable classification. The

classification is not based on any rational nexus with the object sought to be achieved by the

Act and hence it violates the principle of equality enshrined under Article 14 of the

Constitution of India. Also the BD Act does not provide for any guiding principle in relation

to exercising of power by NBA. Therefore in the absence of any guiding principle the Act is

arbitrary and therefore unconstitutional.

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ARGUMENTS IN DETAIL

[ISSUE:I]APPELLANTS HUMBLY SUBMITTED THAT THE APPEAL IS MAINTAINABLE BEFORE

THE SANGALORE HIGH COURT

1. It is humbly submitted that the appeal filed by BJL and SAU is maintainable before the HC

of Sangalore as it involves substantial question of law and other constitutional issue. Hence, it

is a fit case for HC [1.1]. Also, where the provision of any statute is in challenge on the basis

of violation of fundamental right, only effective remedy is remedy by way of writ.1 HC being

constitutionally obliged to ensure that any authority which exercises judicial and quasi-

judicial powers in its jurisdiction functions within the framework of law, are entitled to

entertain the petition to determine if the proceedings were not an abuse of process of court. It

should exercise its power for the sake of justice in rare and exceptional cases, the details of

which cannot be fixed by any rigid formula and appeal procedure is a very significant

advantage to the person and the professed object of it is in conformity with the doctrine of

'speedy trial'.2

[1.1]THE CASE IN HAND IS A FIT CASE FOR HC.

2. In the exercise of extraordinary jurisdiction, HC should take into consideration the

important question of law and constitutional issues.3 The Constitution of India is couched in

comprehensive phraseology and it ex-facie confers a wide power on HC to reach injustice

whenever it is found.4 The power conferred on HC under article 226 cannot be taken away by

any ordinary law. 5

[1.1.1] HC are entitled to entertain the petition to determine if the proceedings were not an

abuse of process of court.

3. It is contended that whole trial in the magistrate court is vitiated by an error or illegality.

Though the specific matter has not been raised in the lower courts, the appellant must be

1 2 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 1661(4th ed. 2010) [Hereinafter as Seervai].

2 Kartar singh v. State of Punjab, 1994 SCC (3) 569.

3 L.I.C of India v. Asha Goel , (2001) 2 SCC 160.

4 35 Halsbury’s Laws of India 135 (2007).

5 Seervai, Supra note 1, at 1658.

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allowed to raise the plea at the hearing of the appeal when it is contended that the whole trial

is vitiated by the alleged illegality or error in trial of the case.6

[A] Magistrate court has exercised its power beyond its jurisdiction.

4. Court of Magistrate of both first class and second class cannot give a sentence of

imprisonment which is greater than 3 years and 1 year respectively.7 In the BD Act, the

punishment prescribed for contravention of provisions under section 3 and 4 is the maximum

of 5 years of imprisonment8. Hence, the Magistrate acted beyond its jurisdiction and therefore

the petition against it is entitled to be entertained. An order of an inferior statutory authority

could be interfered with by the HC while exercising jurisdiction under Article 2269 if court

comes to the conclusion that the authority concerned has no jurisdiction or the order is in

contravention with certain provisions of law.10

Also, Offences under special law may be tried

by the courts specified in that law and when no such court is mentioned, the offence may be

tried by the HC or any other court by which such offence is to be triable. 11

[B] Section 61 of the BD Act restricts the power of Magistrate to take cognizance of the

offence under the BD Act.

5. As per Section 61 of the BD Act, 2002, a Court can take cognizance of offences under the

BD Act only with the permission of the C.G or any authority or officer authorized in this

behalf by the C.G or by the Benefit claimer. It is hereby submitted that the respondent do not

fall within the definition of benefit claimer.12

Hence, respondent has no locus to file a case

before the Magistrate court and Magistrate should not have taken cognizance of the offence. It

was for the NBA to take necessary action, if any. Launching a criminal prosecution is serious

business and these allegations have to be proved beyond reasonable doubt.13

6. [ARGUENDO] Assuming but not conceding that the case can be entertained by Court of

Session then also mere a procedural requirement under section 374 (2)14

is not enough to send

6 33 Halsbury’s Laws of India 241 (2007).

7 Code of Criminal Procedure, 1976, § 29 [Hereinafter referred as Code of Criminal Procedure].

8 Biodiversity Act, 2002, § 55 (Hereinafter referred as ‘BD Act’).

9 Constitution of India, 1950, Art. 226 (Hereinafter referred as Constitution of India).

10 Maharashtra Academy of Engineering v. State of Maharastra, (2001) 10 SCC 166.

11 BD Act, Supra note 8, § 26(b) ; State of Uttar Pradesh v. Sabir Ali, AIR 1964 SC 1673.

12 BD Act, Id, § 2(a).

13 Chhotu Ram v. Urvashi Gulati and anr. AIR 2001 SC 3468.

14 Code of Criminal Procedure, supra note 7.

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back the case when the case has to ultimately come to the HC. In a case, HC has exercised its

jurisdiction under Art 226 irrespective of the fact that an effective remedy was available.15

Although the alternate remedy is available the HC can entertain the petition on the merits.16

Hence, section 374 (3) (c) of Cr.P.C does not restrict the HC from entertaining the petition.

[ISSUE:II] THE APPELLANT HUMBLY SUBMITS THAT CRIMINAL COURT ERRED IN

CONVICTING BJL AND ITS OFFICIAL FOR VIOLATION OF SECTION 3 OF THE BD ACT, 2002.

7. It is submitted that criminal court erred in convicting BJL under section 3 of the Act as BJL

does not comes within the purview of section 3 of the Act [2.1]. Also, it comes within the

exception given under section 5 of the Act [2.2] and the proviso to section 57 (1) of the BD

Act [2.3]. Further CBD provides for inbuilt flexibility in the provision [2.4] and BJL in fact

prevented the farmers from the harmful impact of pesticides to their health and to

environment and BT-crop is as safe as its Non-Bt counterpart [2.5].

[2.1] BJL DOES NOT COME UNDER THE PREVIEW OF SECTION 3 OF THE ACT.

8. It is submitted that BJL is not required to take permission from NBA as it has been

conducting activities related to research and development of transgenic crops for several

years. It started its research on BT Gene from the year 199817

and incorporated the same in

Eggplant. It is pertinent to point out that BJL has taken permission from DBT18

which was the

only body at that time that regulated the use of biotechnology in Indus.19

In the agreement

between SAU and BJL, SAU itself approached BJL, in light of their expertise and research

and development facilities, for development of pro-poor varieties of eggplant.20

9. BJL has merely introgressed the BT Gene in to the “SAU Material” which is developed by,

owned, controlled and / or licensed in by SAU and in no way engaged in commercial

utilization of biological resources in any manner.21

BJL has made the initial cross from its

15

Custom collector v. Shantilal and co, 1993 (49) ECR 442. 16

Seervai, supra note 1, at 1659. 17

Case Statement, ¶ 12 [Hereinafter as CS] 18

Id. 19

Id., ¶ 9. 20

Id.,Annexure A. 21

Id.

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proprietary insect tolerant eggplant lines into SAU Material.22

In a recent case, NBA in a

letter written to secretary of Karnataka biodiversity Board said that if the Bt Gene was

transferred by M/ s.Mahyco after incorporating the same into the local variety of brinjal, then

M/ s. Mahyco is in violation of Section 3 of the Act which requires prior approval of NBA

before obtaining any biological resources occurring in India.23

In the case in hand, actual

incorporation of Bt Gene is done only in 2005 after the agreement24

. Hence, it is contended

that BJL does not come under section 3 of the Act as it has not obtained any biological

resources occurring in Indus for commercial utilization or research. Hence, Criminal court

erred in convicting BJL under section 3 of the Act.

[2.2] BJL COMES UNDER THE EXCEPTIONS TO SEC 3 OF THE ACT.

10. Even if we assume that section 3 is applicable to BJL, it is contended that still BJL cannot

be held liable for the violation of the same as it comes under the exception provided in the BD

Act itself.

[2.2.1] BJL comes within the exception given under section 5 of Biodiversity Act.

11. BJL and SAU entered into a collaborative research project with a common objective of

development and delivery of pro-poor varieties of insect tolerant B. t. eggplant and with a

view to facilitate technology access to resource-constrained farmers25

.

[A] BJL is regarded as an institution under section 5(1) of the Act.

12. Black’s Law Dictionary26

defines institution as an established organisation and

Company as an association. The Act explicitly prohibits foreigners, NRIs, or foreign

institutions from initiating any research involving access to biological resources of India,

without prior approval of NBA27

. It is pertinent to point out here that the laws of Indus are in

pari-materia with the laws of India and hence, both are used mutatis mutandi hereinafter. The

only exemption from this statutory requirement is for “collaborative research projects”

22

Id, Annexure No. B. 23

NBA’s letter to secretary of Karnataka biodiversity Board for violation of BD Act relating to access and

utilization of local brinjal varieties for development of Bt brinjal by MIs. Mahyco ( 25 July, 2011),

http://www.esgindia.org/sites/default/files/campaigns/brinjal/press/b-bt-brinjal-kbb-nba-biopiracysubmissio.pdf. 24

CS, supra note 17, ¶ 15. 25

Supra note 20. 26

BRYAN A. GARNER, BLACK’S LAW DICTIONARY 869 ( 9th

ed., 2009). 27

BD Act, supra note 8, § 3.

http://www.esgindia.org/sites/default/files/campaigns/brinjal/press/b-bt-brinjal-kbb-nba-biopiracy-submissio.pdf

Team Code: ST-11

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involving both Indian and foreign institutions.28

It can be interpreted from the language of the

section that section 3 (2) (c) (ii) of the act is for foreign and Indian institution also as the word

“institution” is used synonymous to “body corporate, association or organisation” used under

the said section. Further in the Explanatory Notes on certain sections of the BD Act, 2002

issued by NBA, it is also given that section 3(2) talks about institution. It talks about any

company, society, trust, organisation, association, institution etc., registered or incorporated in

India, having non-Indian participation in its share capital and/or management.29

Also, it was

held that the definition of company under Companies Act cannot be used to cut down the

scope of the word company.30

For instance, a banking company registered under Sikkim

Registration of Companies Act, 1961 has been held to be a company within the meaning of

Banking Regulation Act, 1949.31

[B] BJL satisfies the conditions specified in sub section (3) of section 5.

13. The collaborators in the present case have abided to the guidelines issued by C.G for

international collaboration research projects involving transfer or exchange of biological

resources or information relating thereto.32

The project is intended for transferring and

exchanging limited quantity necessary for experimental purpose as per the requirement of

para 4(4) of the notification33

and the transfer of research result of the collaborative research

is limited to the party in the contract and no third party is involved in any manner34

as

required by Para 4(8) of the said notification.

[2.3] THE ACT OF BJL COMES WITHIN THE PROTECTION GIVEN UNDER THE PROVISO TO

SECTION 57 (1) OF BD ACT

28

In a letter to Sri. Shivanna, Member Secretary, Karnataka Biodiversity Board (15 February 2010),

http://www.esgindia.org/sites/default/files/campaigns/brinjal/press/b-bt-brinjal-kbb-nba-biopiracy-

submissio.pdf. 29

Explanatory Notes on Certain Sections of the Biological Diversity Act, 2002, NATIONAL BIODIVERSITY

AUTHORITY , http://nbaindia.org/content/565/56/1/explanatorynote.html (last visited August 09,2013) [

Hereinafter as Explanatory Note]. 30

Telesound India Ltd., In re, (1983) 53 Com Cases 926 at 940 (Del). 31

North East Finance Corporation v. UOI, AIR 2000 Sikkim 1. 32

Environmental Law Notification No: S.O.1911 (E), Central Government Issues Guidelines for International

Collaboration Research Projects Involving Transfer or Exchange of Biological Resources ( 8 November, 2006)

[Hereinafter as Notification]. 33

Id. 34

CS, supra note 17, Annexure A.



http://nbaindia.org/content/565/56/1/explanatorynote.html

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14. The DBT which was established in 1986 provides support to researchers and national

industry through facilities, human resource development and bioinformatics programs35

. BJL

has started research in 1998 and incorporated the same in the eggplant with the approval of

DBT.36

At that time DBT was the only body that regulated the use of biotechnology in

Indus.37

Hence, it can be assumed that all the procedures were followed and BJL has

exercised due diligence to prevent the contravention of section 3 of the BD Act. Hence, BJL

is not liable for violation of section 3 as it comes under the protection given under the proviso

to section 57 (1) of BD Act.

[2.4] CBD PROVIDES FOR INBUILT FLEXIBILITY WHICH MUST BE GRANTED TO BJL.

15. CBD, as a part of Incentive Measures gives that each party shall as far as possible and as

appropriate, adopt economically and socially sound measures that act as incentives for the

conservation and sustainable use of components of biological resources.38

The phrase such as

“as far as possible and as appropriate” 39

provides for inbuilt flexibility. The convention

qualifies the principle of sovereignty by making the conservation a common concern of

humankind.40

It also aims to encourage cooperation between government and private entities

in order to attain sustainable development.41

It is supplemented by obligation to foster

research and training that contributes to the sustainable use and conservation of biodiversity.42

It is contended that since the BD Act is the after math of CBD, the intention of CBD plays a

pivotal role in this context.

[2.5] BJL PREVENTED THE FARMERS FROM HARMFUL IMPACT OF PESTICIDES ON THEIR

HEALTH AND BT CROP IS AS SAFE AS ITS NON-BT COUNTERPART.

35

22 N. K. KUMAR ET AL., INDIAN BIOTECHNOLOGY-RAPIDLY EVOLVING AND INDUSTRY LED NATURE

BIOTECHNOLOGY ( 2004). 36


Id. 38

Convention on Biological Diversity, 1992, Art. 11,. (Hereinafter as CBD) 39

Id, Arts. 7, 8, 9, 10, and 11. 40

PHILIPPE CULLET, INTELLECTUAL PROPERTY PROTECTION AND SUSTAINABLE DEVELOPMENT 92 (2005). 41

CBD, supra note 38, Art 10. 42

Id., Art 12.

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16. It is to be submitted that the requirement of insecticide spray would be reduced to 3-4

times when Bt crop is used. Overall, 49.02 to 74.90% yield advantage over respective non-Bt

variety besides reduced sprays of insecticides and higher benefit to cost ratios was noticed.43

It is also true for other GMOs. A field study shows how prior to growing Bt cotton, one would

have to spray as many as twenty times in a season for as many as seven to 15 days in a row.44

However, since the shift to Bt cotton, one has to spray one time in a month after planting,

again after sixty days, and a final time around 120 days;45

In the fact itself it is given that Dr

.Pillai was also happy at better yields.46

Hence, it is contended that BJL in fact prevented the

farmers from harmful effect of pesticides and insecticides and thus performed the function in

Good Faith.

Bt crops are as safe as their non-Bt counterparts.47

The varieties were found to be similar to

their non Bt counterparts in their appearance and agronomical performance48

Twenty five

Nobel Prize recipients and over 3,400 prominent scientists have expressed their support for

agro-biotech as a “powerful and safe” way to improve agriculture and the environment.49

GM

foods have been consumed across the world.50

This concept is used to identify similarities and

differences between the new food and its conventional counterpart and is considered the most

appropriate strategy to date for safety assessment of foods derived from GE plants.51

Hence, it is humbly submitted that criminal court erred in convicting BJL and its official

under sec 3 of the BD Act.

43

University of Agricultural science, Dharwad in a letter to Chief Conservator of Forests and member Secretary

Karnataka Biodiversity Board (17May,2005),

http://www.esgindia.org/sites/default/files/campaigns/brinjal/press/b-bt-brinjal-kbb-nba-biopiracysubmissio.pdf. 44

19 Julia Freeman, How do imagined farmers negotiate actual risks? Biosafety trade-offs in Bt cotton

production in Andhra Pradesh, India 166 (2012), http://jpe.library.arizona.edu/volume_19/Freeman.pdf. 45

Id. 46


Minutes of meeting, 2nd

meeting of Expert Committee on Bt Brinjal (3 July,2007),

www.moef.nic.in/divisions/csurv/bt_brinjal.doc. [Hereinafter as Meeting]. 48

Id. 49

2 PINGALI VENUGOPAL, GM CROPS CONTROVERSY: STAKEHOLDER ANALYSIS OF THE CASE OF BT BRINJAL

(EGGPLANT) IN INDIA 852-863 (August 2012). 50

1 CASE STUDY IN FIELD TRAIL FOR DEVELOPING COUNTRIES (1st ed., 2009).

51 Meeting, Supra note 47.


http://jpe.library.arizona.edu/volume_19/Freeman.pdf

http://www.moef.nic.in/divisions/csurv/bt_brinjal.doc

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[ISSUE:III].THE APPELLANTS HUMBLY SUBMITS THAT THE CRIMINAL COURT ERRED IN

ITS FINDING THAT SAU DOES NOT COME UNDER EXCEPTION 5 OF THE BD ACT AND ALSO

ERRED IN DIRECTING NBA TO RECOVER COMPENSATION.

17. It is humbly submitted that SAU is a law abiding institution which has complied with all

laws, rules and regulations. Therefore Criminal court erred in convicting SAU for violation of

section 4 as SAU very well comes within the ambit of exception provided under section 5

[3.1] and BJL undertook the project to help farmers and hence providing for fair and equitable

benefit sharing [3.2].

[3.1] SAU CANNOT BE CONVICTED FOR VIOLATING SECTION 4 OF THE ACT AS IT IS

EXEMPTED UNDER SECTION 5.

18. Any person who seeks to transfer to any of the following persons the results of

his/her/its/their research relating to biological resource occurring in, or obtained from India to

any company having non Indian participation in its share must obtain approval of NBA before

such transfer.52

[3.1.1] The Agreement between BJL and SAU involved receipt of technology from BJL side

only

19. It is contended that SAU is a public institution and the agreement between SAU and

BJL is a collaborative research project which involves transfer of exchange of biological

resources and information relating thereto. The agreement envisages receipt of technology

from BJL to SAU and there was no reverse flow of technology from SAU to BJL. BJL due to

its expertise in developing pest resistant53

brinjal varieties incorporated Bt gene in SAU

material provided by SAU.54

[3.1.2] The agreement was not for commercial utilization of the developed crop

20. The project was undertaken in a public private partnership mode to make brinjal pest

resistant and help farmers by providing it at the actual cost of production without making any

52

Explanatory Note, supra note 29. 53

CS,Supra note 17, Annexure A. 54

Id.

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profit. Whatsoever SAU has no commercial or profit making motive in researching on Bt

brinjal. The technique so involved included “conventional breeding” and therefore the act

does not constitute “commercial utilization” provided in section 2(f) of the BD Act55

. It

perceived a common objective in safe and effective development and delivery of pro-poor

varieties of insect tolerant Bt eggplant, and conceived a collaborative project with a view to

facilitate technology access to resource constrained farmers.

[3.1.3] Approval of NBA was not required since SAU is exempted under section 5 of the BD

Act.

21. The collaborative research undertaken by SAU under the agreement was not for

commercial purpose and this was partially funded by Government funds and partially by

Government of Sardonia and Sardonia National University. All required permissions were

taken from time to time and DBT granted approval due to its nature of public good

engagement to benefit poor farmers as required by section 5(3) (b) of the Act.56

Collaborative

research project was conceived with a view that it can be used to eradicate poverty, strengthen

food security, boost economic growth and improve nutrition and environment quality, such

that the whole stakeholder will accrue benefit by the mean of cost benefit and increased

productivity.57

Therefore the permission of NBA was not required for carrying out the

research.58

[A] The research conformed to the policy guideline issue by C.G in this behalf.59

22. As required by Rule 4(3) of the notification issued by MoEF60

, the agreement must be

for research purpose and the same can be seen from the fact as well.61

While SAU is the

leading developers of the eggplant variety, BJL has certain rights related to the use of Bt gene

and therefore the agreement was in furtherance of respective research to develop pro poor

variety of brinjal. The collaborators in this case have abided to all the provisions of National

laws, regulatory mechanisms and international agreements or treaties as provided by

guidelines for international collaboration research projects involving transfer or exchange of

55

BD Act, Supra note 8, § 2(f). 56

Id, § 5(3) (b). 57

GEERTRUI VAN OVERWALLE, GENE PATENTS AND COLLABORATIVE LICENSING MODELS, PATENT POOLS,

CLEARINGHOUSE, OPEN SOURCE MODELS AND LIABILITY REGIMES 227 (2009). 58

BD Act, supra note 8, § 5(1). 59

Id, § 5(3) (a). 60

Notification, supra note 32, Rule 4(3). 61

CS, Supra note 17,Annexure A.

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biological resources or information relating thereto issued by MoEF.62

Here parties followed

the Nagoya protocol which recognizes the important contribution to sustainable development

made by technology transfer for adding value to genetic resources in developing

countries63

and its objective includes fair and equitable sharing of the benefits arising from

appropriate transfer of relevant technologies.64

23. The project also intended for transferring and exchanging limited quantity necessary for

experimental purpose as per the requirement of Rule 4(4) of the same notification.65

The

supply of material by SAU to BJL was limited to “ SAU material” as provided under the

agreement between them and all other activities other than development of product in its

breeding programme for suitability for planting in the territory are prohibited as provided in

the agreement. Therefore this agreement is in compliance with rule 4(4) of notification issued

by MoEF.66

In addition to this as provided under rule 4(8) of the said notification the transfer

of research result of the collaborative research is limited to the party in the contract and no

third party is involved in any manner.67

Hence SAU comes well within the exception granted

under section 5(3) (a).68

24. [ARGUENDO] Moreover, there cannot be generalized pre- requisite requirements for

any technological transfer treaty and hence it depends upon facts and circumstances of each

agreement. The present agreement is a “know - how agreement” which means “an agreement

which involves the transfer of information or skills”69

This agreement between SAU and BJL

is based upon high level technology transfer agreement concluded between the government of

Indus and the government of Sardonia. Since there can be no generalization of contract terms

available, the treaty has its own set of terms and conditions negotiated between the respective

countries, which are not mentioned in the facts and silence of fact cannot be used taken as a

ground to make SAU liable under the said section. However any treaty in this respect, should

be in consonance with the major convention i.e. CBD. Treaty can be concluded between

62

supra note 32. 63

Nagoya protocol on access to genetic resources and the fair and equitable sharing of benefits arising from

their utilization to the convention on biological diversity [Hereinafter as Nagoya protocol], Preamble. 64

Id., Art. 1. 65

Notification, supra note 32, Rule 4(4). 66

Id. 67

CS, supra note 17,Annexure A. 68

BD Act, supra note 8, § 5(3) (a). 69

Technology Transfer Agreement, Majmudar & Co.,

http://www.majmudarindia.com/pdf/Legal%20aspects%20of%20technology%20transfer%20agreements.pdf

(last visited August 3,2013).

http://www.majmudarindia.com/pdf/Legal%20aspects%20of%20technology%20transfer%20agreements.pdf

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different countries but with the purpose to fulfil the objectives of CBD, its terms and

conditions must not run contrary to CBD’s objectives.70

In the present case, the agreement

between SAU and BJL is in complete consonance with the objectives of CBD and the same

has been shown in the above faction of arguments.

[3.2]BJL UNDERTOOK THE PROJECT TO HELP FARMERS AND HENCE PROVIDING FOR

FAIR AND EQUITABLE BENEFIT SHARING.

25. It is humbly submitted that BJL is a law abiding company and have accessed bio

resource not for commercial utilization but for helping poor farmers. It had just incorporated

the Bt gene by traditional breeding techniques (adopted by public institutions) into four

varieties of brinjal provided by SAU. The technology provided only for distribution of seeds

at distribution cost and not by way of sale. Transfer by BJL is specifically to deliver seeds for

non commercial purpose and SAU will be obligated to make seeds available on a nominal

cost recovery basis. Since there is no reverse technology transfer from SAU to BJL, SAU and

BJL does not contribute to commercial utilization under sec 2(f) of the Act.71

26. By developing such crop BJL is fulfilling the objectives of Nagoya protocol72

and CBD.

The parties to the Nagoya protocol undertake to promote and encourage access to technology

by, and transfer of technology to developing country parties in order to enable development

and strengthening of a sound and viable technological and scientific base for the attainment of

the objective f the CBD and NAGOYA protocol.73

One of the principal objectives of CBD is

attainment of fair and equitable benefit sharing which is also enshrined as one among three

objectives of the Act.74

Prior to development of Bt brinjal, there was indiscriminate use of

pesticide which increased its production cost, pose serious threat to environment and due to

high amount of pesticide residue in the crop, it was a serious threat to consumers’ health and

safety.75

The new variety was tested and found to be similar in appearance and agronomical

performance and is expected to increase productivity and yield per year. Therefore its act was

70

TIMOTHY M. SWANSON, INTELLECTUAL PROPERTY RIGHTS AND BIODIVERSITY CONSERVATION, AN

INTERDISCIPLINARY ANALYSIS OF THE VALUES OF MEDICINAL PLANTS (1998). 71

BD Act, supra note 8, § 2(f). 72

Nagoya Protocol, supra note 63. 73

Id., Art. 23. 74

3 David Vaver, Intellectual Property Rights, Critical Concepts in Law (2006). 75

Environmental Law Notification No: S.O.1911 (E), Central government issues Guidelines for International

Collaboration Research Projects Involving Transfer or Exchange of Biological Resources ( 8 November, 2006).

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in pursuance to article 16(4) of the CBD76

and achieves the object of equitable and fair benefit

sharing. In the light of above arguments the direction given by criminal court to NBA to

impose fine on BJL would not be justified.

[ISSUE:IV] THE CRIMINAL COURT ERRED IN MAKING ADVERSE REMARKS ON CONDUCT OF

NBA AND THE SAME IS ENTITLED TO BE EXPUNGED

27. It is humbly submitted that the criminal court erred in making adverse remark on the

conduct of NBA as the court in its inherent jurisdiction can expunge the remark to secure the

end of justice [4.1] and negligence of NBA is not justified [4.2]. As per explanation to Sub-

rule (2) of Rule 8, 'adverse remark' means a remark, which indicates the defects or

deficiencies in the quality of work or performance or conduct of an officer, but does not

include any word or words in the nature of Counsel or advice to the officer.77

[4.1] THAT THE COURT IN ITS INHERENT JURISDICTION CAN EXPUNGE THE REMARK, TO

SECURE THE END OF JUSTICE.

28. The court in Lawrence Gomes78

case held that;“Court in its inherent jurisdiction

can expunge the adverse remarks suo moto or even on application of a party, provided that,

there must be a ground for expunging as such remarks were not justified, or were without

foundation, or were wholly wrong or improper and expunging thereof is necessary to prevent

abuse of the process of the Court or otherwise to secure the ends of justice.”

The court also laid down following criteria which is relevant to consider while expunging any

remark:79

[4.1.1] There is no evidence on record bearing on that conduct justifying the remarks.

29. It is to be submitted that the Criminal court accepted the fact that no evidence of

corruption against NBA was brought to its notice and also deaths could not be established that

it occurred only with the consumption of GM eggplant.80

76

CBD, supra note 38, Art.16(4). 77

The All India Services (Confidential Rolls) Rules,1970. 78

Lawrence Gomes v. The State Of West Bengal (2002) 1 CALLT 395 HC. 79

Id. 80

CS, supra note 17, ¶ 24.

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[4.1.2] It is not necessary for the decision of the case, as an integral part

thereof, to animadvert on that conduct.81

30. It is to be submitted that in case where the conduct of any person or authority comes into

the consideration before the court of law then harsh and disparaging remarks should not be

made unless it is really necessary for the decision of the case, as an integral part thereof to

animadvert on that conduct.82

The integral part of the given case revolves around the matter

of agreement between the BJL and SAU. As the same agreement is not consistent with the

provisions laid down in BD Act 2002 and is against the public interest. The role of NBA is

limited in the case and has been unnecessarily and unjustly magnified by the Magistrate83

and

furthermore the court failed to establish the cause of death by Bt. Eggplant and also no

evidence of corruption was noticed. All these errors have led the learned Judge to make

uncalled for caustic comments against the appellant. It was not at all necessary for the

Magistrate of the criminal court to have castigated NBA, who has performed its duty

according.

[4.2] THAT THE NEGLIGENCE OF NBA WAS NOT JUSTIFIED

31. That the NBA acted diligently and started its inquiry to look into the matter of Bt.

Eggplant84

and after finding some irregularity in the agreement, NBA filed complaints against

BJL and SAU.85

This shows that NBA didn’t perform its duty negligently but tried their level

best to dig into the issue of Bt. eggplant. In many cases86

, Court has repeatedly cautioned that

“Any castigating remarks made by the court against any person, particularly when such

remarks could ensue serious consequences on the future career of the person concerned he

should have been given an opportunity of being heard in the matter in respect of the proposed

remarks or strictures. Such an opportunity is the basic requirement, for; otherwise the

offending remarks would be in violation of the principles of natural justice.87

32. Therefore it is submitted before the court that the remark made by the Magistrate of

criminal court is adverse in nature and the same shall stand expunged from the judgment

81

Supra note 78. 82

Niranjan Patnaik vs Sashibhusan Kar & Anr 1986 AIR 819, 1986 SCR (2) 470. 83

State of Madhya Pradesh v. Narmada Bachao Andolan and Anr. AIR 2012 SC 260 [Hereinafter as Narmada

Bachao]. 84


Id, ¶ 18. 86

State of Karnataka v. Registrar General, AIR 2000 SC 2626. 87

Id.

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under appeal as the remark made against the applicants are unwarranted and uncalled and not

even based on any material/evidence on record.88

The adverse remarks should not be taken

lightly as it may seriously affect the character, competence and integrity of an individual in

purported desire to render justice to the other party.

[ISSUE:V] IT IS SUBMITTED THAT SECTION 3 OF THE BD ACT IS UNCONSTITUTIONAL

33. The BD Act was enacted to give effect to the objectives of CBD, a landmark International

agreement which focuses on all major issues related to conservation and sustainable use of

biological diversity along with associated knowledge in sustainable manner such that, fair and

equitable sharing of benefit arising from the utilization of biological and genetic resources can

be processed in just manner.89

It is submitted that section 3 of the BD Act is unconstitutional

as the classification made under section 3 is in violation of fundamental right of the appellant

[5.1] and no guideline is provided in the BD Act which deals with the scope of power of

central government [5.2].

[5.1] THAT SECTION 3 IS IN VIOLATION OF ARTICLE 14 OF THE INDIAN CONSTITUTION.

34. It is contended that the right under Art 14 is available to ‘any’ person and the word

‘person’ includes both legal and natural person.90

Hence, the right to equality may be

exercised by companies, statutory corporations and the like91

.

[5.1.1] The classification under section 3, between persons who is “citizen resident in India”

and “other person” in BD Act is not based on reasonable classification.

35. Art14 prohibits class legislation; however permit classification which is based upon

reasonable classification.92

But the classification made should not be “arbitrary” but should be

“reasonable”. No classification can be described as reasonable which leads to the absurd

results, for what is absurd is, by definition, unreasonable.93

There should be a nexus between

88

Narmada Bachao, supra note 83. 89

Madhav Gadgil, India’s Biological Diversity Act 2002: An Act for the New Millennium

(2003), http://www.ias.ac.in/jbiosci/mar2003/145.pdf. 90

Chiranjit Lal v. Union of India, AIR 1951 SC 41. 91

34, HALSBURY LAW OF INDIA 63 (2007). 92

V N SHUKLA, CONSITUTION OF INDIA 115 (10th

ed., 2007). 93

1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed. 2010).

http://www.ias.ac.in/jbiosci/mar2003/145.pdf

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the object ought to be achieved by the statute in question. In the process of considering the

constitutionality of the provision under Art 14, Preamble of the Act and its material provisions

can and must be considered and in addition to this the object intended to be achieved by the

statute is also to be considered.94

In the present case, the object of the BD Act is to provide for

access to biological resources and to associate traditional knowledge to ensure equitable

sharing of benefits arising out of biological resources. It can be very well contended that

discrimination made between foreign corporation and Domestic Corporation is not pertinent

to the object of statute to be achieved. The presumption behind such demarcation that a Non-

Indian company is likely to use biological resources occurring in India for their own benefit

does not hold water. This will lead to many adverse effects on research and development

which is evident from the past 10 years after the act was passed.95

36. This makes it clear that classification made under this act is not based on any rational

nexus with the object sought to be achieved by the Act. It completely discriminates between

the person who are “citizen resident in India” and “other person” and hence it violates the

principle of Right to equality under Art14.

[5.2] NO GUIDELINES FOR CONTROLLING THE DISCRETION OF NBA.

37. The BD Act gives no guiding principle regarding the power granted to NBA for granting

approval. However section 48 only says about C.G giving direction to NBA but again the

duties of C.G, is itself vague to the extent that no specific guidelines is provided within the

BD Act to assist the functioning of C.G. In this context, section 36 of the BD Act which talks

about duties of C.G is also quite vague. Hence in the lack of guiding principle anywhere in

the BD Act for controlling discretion, the provision of section 3 is in violation of Art14. In the

absence of any guiding principle, an Act is considered to be unconstitutional.96

94

Rama Vilas Service (P) Ltd. v. C. Chandrasekaran and Ors., AIR 1965 SC 107. 95

Paul v. Virginia, (1868)19 Law Ed 357. 96

Madhosingh and Ors. v. State of Rajasthan, AIR 1954 Raj 197.

Team Code: ST-11

XVI

PRAYER

Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities

cited, that this Hon'ble Court may be pleased to:

1. Set aside the order of criminal court convicting BJL for violation of section 3

2. Set aside the order of criminal court convicting SAU for violating section 4 of the B D Act.

3. Expunge the adverse remarks made by criminal court against NBA.

4. Issue a writ or appropriate order in the nature of writ declaring Section 3 of the Biological

Diversity Act, 2002, to be illegal and contrary to the Principle enshrined in Article 14 of the

Constitution of Indus.

5. To quash the direction given by criminal court to NBA to calculate the loss caused and

recover the amount as compensation.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best

Interests of Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

Sd/-

(Counsel for the Appellants)

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