ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

 

Suit No.821 of 2016

 

Ayesha Solvent Plant (Pvt.) Limited

Versus

Federation of Pakistan & others

 

Date

Order with signature of Judge

 

For hearing of CMA 5462/16

 

Date of hearing: 20.04.2016, 21.04.2016 and 22.04.2016

 

Mr. Khalid Jawed Khan for plaintiff.

Mr. Salman Talibuddin, Addl. Attorney General for defendant No.1

Mr. Kashif Nazir for defendant No.3.

 

-.-.-

 

Mohammad Shafi Siddiqui, J.- Plaintiff, being a company incorporated under Companies Ordinance, 1984 and aggrieved of refusal of defendants No.2 to issue necessary Plant Protection Release Order in relation to a consignment comprising of 34752.500 metric ton of soybean of Brazil and US origin, has filed this suit for declaration, injunction and damages in which listed application under order XXXIX Rule 1 and 2 CPC has been filed for release of subject consignment.

Brief facts of the case are that originally a consignment consisting of soybean of Brazil and US origin was imported by an importer in Egypt which was exported and loaded from Port of Tubarao, Brazil and Port of Louisiana, USA for offloading the cargo at Egyptian Port, El-Dekheila and accordingly Phytosanitary certificates were issued by the relevant authorities of Ministry of Brazil and USA. It is claimed that the cargo was discharged at the aforesaid Port at Egypt.

It is the case that for the purchase and import of 31752.500 metric ton Brazilian origin and 3000 metric ton of US origin soybean plaintiff entered into a contract and the supplier arranged for soybean out of stock referred above. It is claimed that subsequently LC dated 11.01.2016 was opened in favour of supplier and in pursuance thereof it was loaded by the shipper namely National Vegetable Oil Company on the vessel namely MT Thor Endeavour which was consigned to the plaintiff. The bill of ladings No.1 to 6 were in relation to Brazilian soybean whereas 7th bill of lading is for USA origin.

It is claimed that at the time of loading of consignment on vessel for export to Pakistan it was duly inspected and supervised by world renowned Swiss inspection company SGS at the Egyptian Port El-Dekheila during 10th to 16th of February, 2016 and finally after verifying the quantity, weight and quality of soybean of Brazilian and US origin requisite certificates were issued by SGS. Consequently the plaintiff filed cargo manifest of the import on 27.02.2016 vide IGM No.74 and also produced the import permits issued by defendant No.3 in that regard. The vessel containing subject cargo arrived at Port on 29.02.2016 and the subject cargo cumulatively shown 34752.500 metric ton was inspected at the request of the plaintiff by three-member committee appointed by defendant No.2. It is claimed that the committee, as constituted by defendant No.2, after drawing samples, which have undergone the required test, declared that they were free from pests. It is claimed that though consignment has also undergone such test and scrutiny by SGS Egypt and its approval at Karachi Port, the release orders have been withheld by the officers of defendant No.2. The reason of not issuing such certificates was their reservation as to origin of the consignment as Egypt and not Brazil/USA and hence Phytosanitary certificate and import permits from Egypt and not from Brazil and USA were considered to be essential.

It is further claimed that the officials of defendant No.2 have also inquired about genuineness of Brazil and US Phytosanitary certificate and as to whether it was endorsed by NPPO of Egypt and despite their verification, they are still insisting upon to provide a certificate from NPPO Egypt. It is further claimed that samples which were drawn by defendant No.2 have undergone test from PCSIR Laboratory on 03.03.2016 and from Industrial Analytical Centre on 04.03.2016 and their reports are positive as to the fitness and safety of the consignment.

It is claimed by learned counsel for the plaintiff that defendant No.2 has misinterpreted Rule 8(1)(5) of the Rules 1967 for malafide and extraneous reasons. It is claimed that the present case is governed by Rule 8(1) of ibid rules and not the following sub rules. It is claimed that there is no dispute that the consignment of soybean in fact has an origin of Brazil and USA while Egypt was only a transit/loading port yet the defendant No.2 unnecessarily requiring the NPPO of Egypt to issue such certificate before the consignment could be released and offloaded. It is thus claimed that such arbitrary actions of defendant No.2 are violative of Articles 4, 10, 18-A 24 and 25 of Constitution.

On the other hand, learned Addl. Attorney General has denied the contentions as raised above and submitted that the plaintiff is relying upon import permits available as Annexure F/1 and F/2 for the import of 55000 metric ton and 6900 metric ton from Brazil and USA respectively. He submitted that at the very outset these import permits do not authorize plaintiffs to import consignment from Egypt.

Learned Addl. A.G. has taken me to the brief history of this consignment. He submitted that the consignment originates from Brazil and USA. The Brazilian consignment arrived in Egypt on 15.08.2015 whereas the consignment which originates from USA reached its destination i.e. Egypt on 02.02.2016. The present consignment arrived at present destination i.e. Karachi on 16.02.2016 which is carrying 31,752 MT of Brazilian origin and approximately 3000 MT of USA origin. Learned counsel submitted that since Brazilian consignment arrived in Egypt in August, 2015 and it remained there for a considerable period i.e. about six months, the Phytosanitary certificate of NPPO Egypt is essentially required.

Learned Addl. A.G. has further taken me to guidelines for Phytosanitary certificate and in terms of ISPM 12 requirement 6 the consideration for export, re-export situation and transit for the present consignment is same as is required originally on account of its exposure, duration and status of consignment. It is claimed that Phytosanitary certificate of NPPO Egypt is essential since the cargo remained in a different environment for about six months and hence this place is considered as place of origin for shipment of the consignment. Learned Addl. A.G. has also taken me to ISPM 25, which also relates to consignment in transit. These measures in terms of ISPM 25 were adopted by the first session of commission in April, 2006 and it provides that this standard describes procedures to identify, assess and manage pest risks associated with the consignment of regulated articles which pass through a country without being imported, in such a manner that any Phytosanitary measure applied in the country of transit are technically justified and necessary to prevent the introduction into and/or spread of pest within that country. Learned Addl. A.G. has relied upon the requirements of pest risk analysis of country of proceed which include identification of pest risk and pest risk assessment.

It is further urged that the unit test through PCSIR and HEJ would not bypass the requirement of law, which may include the requirement in terms of Pakistan Plant Quarantine Act, 1976 and the rules framed thereunder. He submitted that if such consignment on the basis of present certificates and Lab test is allowed to be imported then there is no necessity or requirement of Phytosanitary certificates and all roaming vessels in Indian Ocean could be tempted to take a chance to discharge their cargo which otherwise is not being claimed by anyone.

Learned Addl. A.G. further submitted that the import permit of the plaintiff provides that the consignment is being imported from Brazil/USA grown in Rio De Jineiro and Toledo, Ohio USA but the consignment in fact originates from Egypt and this import permit does not show that Egypt is only a transit country and that too for six months for its ultimate destination as Karachi. He has also relied upon Annexure ‘G’ to plaint at page 169 in terms whereof the Deputy Director (Quarantine), Department of Plant Protection (Pak), had issued a letter to head of Central Administration of Plant Quarantine Egypt that Phytosanitary certificate of the origin and the country in transit is essential and to be provided, which was replied but no Phytosanitary certificate of the country in transit/Egypt is provided. Learned Addl. A.G. has further relied upon another letter Annexure G/3 to plaint (page 173) in terms whereof the NPPO Pakistan again inquired NPPO Egypt for issuance of Phytosanitary certificate, as required.

Learned counsel for plaintiff in rebuttal submitted that the subject consignment was never imported in Egypt and it was in transit when the plaintiff entered into a contract with its supplier and hence there is no requirement under the law for issuance of Phytosanitary certificate for goods in transit. He submitted that since since there is no provision for issuance of Phytosanitary certificate in relation to the consignment which is in transit, therefore, defendant No.2 unlawfully insisting upon NPPO Egypt to provide Phytosanitary certificate for the release of subject consignment. Learned counsel for the plaintiff further submitted that it may be a lacuna in International Plant Protection Convention, 1997 and the law framed thereunder as the consignment is to be dealt with in accordance with the local laws which is Pakistan Plant Quarantine Act, 1976 and the rules framed thereunder which does not require issuance of Phytosanitary certificate for the consignment in transit. He relied upon PLD 1994 SC 693 and 2002 SCMR 1694, wherein the local law shown to have preferential right in case of legislation under any international convention. As long as it is in conformity or not amended accordingly, the plaintiff could not be penalized.

Learned counsel for the plaintiff has also placed on record a declaration by National Vegetable Oil, the supplier of the plaintiff, to the effect that the subject cargo was stored in the Port Silos, which is a controlled area under the supervision of NPPO Egypt and Egypt's custom authorities and after appropriate compliance and procedure declaring it free from pests/insects and restricted fungus, the integrity of subject consignment has been maintained. However, it is claimed that since NPPO Egypt is not required to issue such certificate on its own, it has not been issued.

Learned counsel for defendant No.3 also adopted the arguments raised by Mr. Salman Talibuddin, Addl. A.G.

I have heard learned counsel for plaintiff and defendants and learned Addl. Attorney General and perused the material available on record.

The law that governs the subject of the suit is Pakistan Plant Quarantine Act, 1976, rules framed thereunder and International Plant Protection Convention. Certain ISPMs have also been issued in relation to the convention for the consignment to clarify and describe the intricate situations which were updated time and again. The substantial question involved in the suit is very limited but crucial i.e. whether under the facts and circumstances (National Plant Protection Organization) NPPO Egypt is required to issue an independent Phytosanitary certificate in relation to the subject consignment shipped from Egypt to Karachi, i.e. either for export, re-export or even for consignment under transit.

There is no dispute that the crop of subject consignment of soybeans grew and originates from Brazil and USA. Brazilian soybean arrived in Egypt in seven “holds” of ship/vessel and a part of the consignment was consumed domestically in Egypt. The consignee in Egypt the supplier of present consignment then entered into a contract with the plaintiff and the consignment was shipped to Pakistan through M/V Thor Endeavour consists of around 34752 MT of soybean, which included 31752 MT of Brazilian origin and around 3000 of US origin. The cargo was shipped from Port of El­Dekheila (Egypt's port). A local company (SGS) other than NPPO Egypt has (for present shipment) issued certificates in pursuance of recommendations/order from National Vegetable Oil, the supplier of the plaintiff calling them certificates of Phytosanitary conditions, fumigation, cleanliness of vessel’s holds, weight, certificate and quality etc. SGS on the request of National Vegetable Oil Company also issued same certificate for 3000 MT US origin soybeans. A certificate was then again appears to have been issued by National Vegetable Oils that the plant or plant material does not originate from a place where injurious insects or plant diseases were prevalent and has not been kept or stored in places infested with injurious insects or infected by diseases and plant pests.

At some relevant time the Quarantine department of Plant & Protection, Government of Pakistan, issued letters to the Head of Administration of Plant Quarantine Egypt seeking clarification of the original Phytosanitary certificate by NPPO Egypt. They have inquired that a Phytosanitary certificate of the original as well as of transit country is mandatory in view of circumstances of the case which was replied that those certificates issued by NPPO Brazil and USA are genuine. The Deputy Director Quarantine Plant Protection, Government of Pakistan has again issued a letter annexure G/3 to NPPO Egypt to issue a Phytosanitary certificate wherein they may clarify and certify that the soybean consignment associated with the attached Phytosanitary certificate of the Brazil and USA had been inspected and found free from all Phytosanitary risk however the record shows that it was not responded to.

In order to understand the essential requirement of Phytosanitary certificate one should understand its vitality as one can conveniently argue that such consignment could have been inspected by importing country as it may loses its health during journey. Phytosanitary is a status regarding which certificate is required from its place of origin. I will be discussing the place of origin later in the judgment. Phytosanitary certificate in fact is an official document issued by a Plant Protection Organization of an exporting country to the Plant Protection Organization of an importing country. It certifies that the plant or plant product cover by the certificate have been inspected according to appropriate procedures and are considered to be free from quarantine pests and practically free from other injurious pests and that they are considered to be in conformity with the current Phytosanitary regulation of the importing country. This certificate facilitates trade but is not a trade document. It indicates that the consignment of plant and plant product or other regulated articles which need specified Phytosanitary certificate, import requirements are in conformity with the certifying statement of the appropriate model certificate. For NPPOs of importing and exporting country (under convention) all other certificates issued by an entity other than NPPO is a fraudulent certificates. The importing  countries does specify requirement that should be observed with respect to the preparation and issuance of Phytosanitary certificate though a model certificate and format is provided under the law but issues as to the local phytosanitary regulation and period of validity are essential ingredients.

The purpose and responsibility of Phytosanitary certificate is defined in International Plan Protection Convention which is reproduced as under:-

“1.     With the purpose of securing common and effective action to prevent the spread and introduction of pests of plants and plant products, and to promote appropriate measures for their control, the contracting parties undertake to adopt the legislative, technical and administrative measures specified in this Convention and in supplementary agreements pursuant to Article XVI.

2.       Each contracting party shall assume responsibility, without prejudice to obligations assumed under other international agreements, for the fulfillment within its territories of all requirements under this Convention.

3.       The division of responsibilities for the fulfillment of the requirements of this Convention between member organization of FAO and their member states that are contracting parties shall be in accordance with their respective competencies.

4.       Where appropriate, the provisions of this Convention may be deemed by contracting parties to extend, in addition to plants and plant products, to storage places, packaging, conveyances, containers, soil and any other organism, object or material capable of harbouring or spreading plant pests, particularly where international transportation is involved.”

 

The International Plant Protection Convention is a prime document on which the individual country legislates to respond to the international requirement accordingly. The convention and Quarantine Act/Rules provide a room for model Phytosanitary certificate and model Phytosanitary certificate for re­export.

The ISPM 12 relates to Phytosanitary certificate. It provides details for consignment meant for export and re­export and also dilate upon consignments under transit. The Phytosanitary certificate for re­export is same as Phytosanitary certificate for export except that in addition it certifies earlier text covering and certifying the phytosanitary statement of previous country. If identity of Plant Product or other regulated articles in the consignment have not been maintained or the consignment has been subjected to the risk of infestation or the commodity has been processed to change its nature, Phytosanitary certificate is required as in this situation the place of origin for the purpose of shipment of consignment even if under transit changes on account of change of its phytosanitary status, although the place of its growth may be different but for phytosanitary status, Phytosanitary certificate of such consignment is essential for the shipment. The NPPO of the country for re­export on the request of the exporter may carry out appropriate Phytosanitary procedures and if the NPPO is confident that Phytosanitary import requirement are met or not altered or if originally meant for same country, it should issue a Phytosanitary certificate clarifying such conditions.

ISPM 12 provides certain conditions such as:

“6.1   Considerations for issuing a Phytosanitary certificate for re-export

When a consignment is imported into a country, then exported to another, the NPPO of the country of re-export, on request from exporters, may issue a phytosanitary certificate for re-export. The NPPO should issue a phytosanitary certificate for re-export only if it is confident that the phytosanitary import requirements are met. Re-export phytosanitary certification may still be performed if the consignment has been stored, split up, combined with other consignments or repackaged….

Before issuing a phytosanitary certificate for re-export, the NPPO should first examine the original phytosanitary certificate or certified copy that accompanied the consignment upon import and determine whether the requirements of the subsequent country of destination are more stringent, the same or less stringent than those certified by the phytosanitary certificate or its certified copies.

If the consignment is replaced or reloaded with its identity being affected or if a risk of infestation or contamination is identified, additional inspection should be carried out. If the consignment is not repacked and the phytosanitary security of the consignment has been maintained, the NPPO of the re-exporting country has two options regarding inspection of the consignment for re-export.

-      If the Phytosanitary import requirements are the same or less stringent, the NPPO of the re-exporting country may undertake an additional inspection.

-      If the phytosanitary import requirements are different or more stringent, the NPPO of the re-exporting country may undertake an additional inspection to ensure that the consignment conforms to the phytosanitary requirements of the importing country where this requirement can be met through inspection.

 

The country of destination may have phytosanitary import requirements (e.g. growing season inspection, soil testing) that cannot be fulfilled by the country of re-export. In such case, the country of re-export may still be able to issue a phytosanitary certificate for export or phytosanitary certificate for re-export if:

-      Either particular information on compliance has been included or declared on the phytosanitary certificate for export by the country of origin

-      Or an alternative phytosanitary measure can be applied (such as laboratory tests on samples or treatments) that is considered equivalent and in accordance with the phytosanitary import requirements of the country of destination.

Additional declaration on phytosanitary certificates for re-export where required should be based on the activities of the NPPO of the country of re-export. Additional declarations from the original phytosanitary certificate or certified copies should not be transferred to phytosanitary certificates for re-export.

When re-exports routinely occur, or are started, suitable procedures for satisfying these requirements may be agreed between the NPPOs of the countries of original and re-export. This may include an exchange of written correspondence between the respective NPPOs on phytosanitary measures applied at origin (e.g. growing season inspection, soil testing) which provides the assurance required for the country of re-export to certify the consignment as required by the country of destination.

The original phytosanitary certificate or its copy should accompany the consignment together with the phytosanitary certificate for re-export.

When a phytosanitary certificate for re-export is issued, the NPPO of the re-exporting country provides assurance related to the handling (e.g. splitting, combining, packing, storage) of the consignment in the country of re-export.

If the consignment is split up and the resulting consignments are re-exported separately, then phytosanitary certificates for re-export and certified copies of the phytosanitary certificate from the country of export will be required to accompany all such consignments.

The phytosanitary certificate for re-export shall be signed only after it is duly completed. ”

          ISPM 12 further in relation to Cargo/consignment in transit provides as under:-

“6.2 Transit

If a consignment is in transit through a country, the NPPO of the country of transit is not involved unless risks for the country of transit have been identified (ISPM 25 Consignments in transit).

If the phytosanitary security of the consignment has been compromised during transit, and the NPPO of the country of transit receives a request to become involved, the NPPO may perform phytosanitary certification for export in accordance with the provisions described in this standard.

A change of means of conveyance during transit or the transport of two or more consignments in one conveyance should not be considered a reason to issue phytosanitary certificates unless the phytosanitary security of the consignment is compromised.

Importing countries may have specific phytosanitary import requirements (e.g. require seals, specific packaging) addressed to the country of export for the import of consignments to be moved in transit through other countries if specific risks have been identified.”

 

          ISPM 25 which relates to consignment in transit provides a standard procedure to identify, assess and manage pest risk associated with consignment of regulated articles which pass through a country without being imported, in such a manner that in Phytosanitary measures applied in the country of transit are technically justified and necessary to prevent the introduction into and/or spread of pests within that country.

          ISPM 25 further provides the requirements as under:-

“1.3 Risk management

Based on risk assessment, consignments in transit may be classified by the NPPO into two broad risk management categories:

- transit requiring no further phytosanitary measures, or

- transit requiring further phytosanitary measures.

1.3.2 Transit requiring further phytosanitary measures

The risk assessment for consignments in transit may conclude that specific phytosanitary measures are necessary. These may include the following:

- verification of consignment identity or integrity

- phytosanitary movement document (e.g. transit permit)

- phytosanitary certificates (with transit requirements)

- designated entry and exit points

- verification of exit of the consignment

- mode of transport and designated transit routes

- regulation of the changes of configuration (e.g. combined, split, repacked)

- use of NPPO-prescribed equipment or facilities

- Customs facilities recognized by the NPPO

- phytosanitary treatments (e.g. pre-shipment treatments, treatments when consignment integrity is doubtful)

- consignment tracking while in transit

- physical conditions (e.g. refrigeration, pest-proof packaging and/or conveyance preventing spillage)

- use of NPPO-specific seals for conveyances or consignment

- specific carrier’s emergency management plans

- transit time or season limits

- documentation in addition to that required by Customs

- inspection of consignment by NPPO

- packaging

- disposal of waste.

Such phytosanitary measures should only be applied for regulated pests of the country of transit or those pests that are under emergency action in that country.”

 

          The requirements for Phytosanitary certificate also dilate upon certain invalid Phytosanitary certificate. Invalidity depends upon:

i)             Illegible;

ii)           incomplete

iii)         period of validity expired or not complied with

iv)          inclusion of unauthorized alterations or erasures

v)            inclusion of conflicting or inconsistent information

vi)          use of wording that is inconsistent with the model

vii)        certificates herein certification of prohibited products

viii)       None certified copies.

 

Keeping the above ISPMS in mind I now discuss the present consignment. The subject consignment, which accompanied the original Phytosanitary certificate for first destination i.e. Egypt apparently does not contain the validity period and does not contain information that it is meant for its onward journey for Pakistan so as to contain specifications. Although the model certificate in law does not provide for such validity but it seems that ISPMs invariably discuss the essentiality of such validity.

I have purposely discussed both eventualities such as the consignment imported for re-export and consignment in transit. I do not agree with the contention of Mr. Khalid Jawed Khan that the situation that we are in is not cured and covered by Convention and Act of 1976 and the rules framed thereunder, which is in relation to a consignment in transit which has remained there for a considerable period of six months.

ISPM 12 of Phytosanitary in terms of its clause 6.2, as discussed above relates to transit consignment and provides that if a consignment is in transit through a country, the NPPO of the country of transit is not involved unless risk for the country of transit have been identified. Reference is then made to ISPM 25. Thus pests risk analyses of the product or country of transit include identification of pest risk, pest risk assessment, pest risk management and transit requiring for further Phytosanitary measures. Thus, if any of the required conditions for not issuing a Phytosanitary certificate is not compromised the NPPO of the country is not involved but a certificate to such an extent would still be required. However, if it does and the NPPO of the country of transit becomes active. If it refuses or ignores a request to become involve or validate the phytosanitary status (not certificate) as it had, the NPPO of importing country may ask for Phytosanitary certification for export in accordance with the provisions prescribed in the standard to be maintained under requirement for Phytosanitary certificate. Thus, the ISPM 12 of Phytosanitary resolves the controversy involved in the present case that despite it not being imported in Egypt why the NPPO of the country in transit should intervene and perform Phytosanitary certification for export/re-export in accordance with the standards, which are required.

The importing countries may have specific Phytosanitary import requirement which could be addressed to the country of export for the import of a consignment which are in movement and in transit through other countries if the risks had been identified. In any case (i) if the phytosanitary conditions are not compromised for goods in transit the “NPPO” should clarify (ii) If they are, then NPPO should perform phytosanitary measure and issue phytosanitary certificate accordingly. But in any case they cannot keep mum. In both the cases they have to be active and have a duty to be discharged.

The subject consignment comprising of 34752.500 MT of soybean consisting 31,752.500 of Brazilian origin and 3000 US origin, the Brazilian soybean are lying in Silor for about six months. There is nothing on record that NPPO Egypt has intervened either for issuance of the Phytosanitary certificate for export, re-export or clarify that they are not required to be intervened as the phytosanitary status are not compromised. The SGS who claims to have issued a Phytosanitary certificate is nothing but a confirmation of the issuance of original Phytosanitary certificate received from their client, which originates from Brazil and USA, therefore, the grievance/claim of the plaintiff that Quarantine Department of Plant Protection, Government of Pakistan, has wrongly inquired about the mandatory requirement of Phytosanitary certification by the country in transit is not sustainable in view of the fact that bulk of the consignment remained in Silos in Egypt for about six months where it may or may not have been subjected to such pests effects of a new environment and the NPPO Egypt should have taken a stance/steps in this regard before the consignment could be shipped.

Rule 8(1) and 8(5) of Pakistan Plant Quarantine Rules, 1967 are essential and relevant for the present controversy. Rule 8(1) ibid relates to a plant or plant material shipment of which originates from country maintaining the plaint quarantine service shall be accompanied by an official certificate. As discussed above, the shipment from Port of Egypt is being made after a delay of about six months. It may or may not be in transit, the Rule 8(1) requires that such plant or plant material should carry the official certificate from a Plant Quarantine Authority of that country. It does not only relate to a country where such plants or plant products were grown. The place of origin varies according to situation and requirement of a Phytosanitary status. Place of origin under the convention and Act refers to a place from where a consignment gains its Phytosanitary status where the possibility of exposure to infestation or contamination of pests is evident and could not be ruled out and not always that place where the commodity was grown is considered as place of origin. If a commodity is stored its Phytosanitary status may change over a period of time as a result of its new location. In such cases the new location may change phytosanitary status and may be considered as a place of origin. Place of origin is dependent upon Phytosanitary status not place of growth. In such circumstances the commodity may gain its Phytosanitary status from more than one place and NPPO of all such countries providing certificates should decide about the place or places of origin depending upon the situation that they have undergone which may change a Phytosanitary status. For the purpose of this shipment Egypt is considered as a place of origin and the definition of “place of origin” in policy would not turn the situation. Hence I am of the view that unless such certificates as above are made available the Authority in Pakistan under Quarantine Act are justified in not issuing the release order. Thus in terms of Rule 8(5) the shipment arrived without holding certificate or declaration meant in Sub Rule 2 and with permit are liable to be confiscated or destroyed or to be returned to the port of origin at the expense of the importer.

The health of soybean may well be above the requirement but if the consignment is required to be released by prescribing tests of the local labs then I am afraid there is no necessity of these international conventions and the regulations which regulate international trade. There are hundreds of opportunist vessels roaming in Indian Ocean/ Arabian Sea, which may find it convenient and suitable to make an attempt to discharge their cargo after fulfilling such requirement as is being attempted by the plaintiff on the basis of reports from local labs and such ports would then become a port to discharge burdens of such vessels who have no destination to discharge such load. These local labs and reports have an importance but it cannot replace the phytosanitary certificate under Quarantine Act 1976 and rules framed. Such Phytosanitary certificate in any of the above form should not be compromised for the benefit of an individual. The law is for implementation and all endeavors should be made to implement the law rather than to discover a room or space for escape.

Hence, in view of the above I dispose of the application in hand with the following order and/or observation:-

I)             That since the consignment was in transit and bulk of it remained in Silos for about six months:

a)   NPPO Egypt should take a firm stand as to whether the Phytosanitary status of the consignment has or has not been compromised;

b)   In case it has not been compromised the NPPO Egypt shall issue a Phytosanitary certificate that the Phytosanitary status of the consignment is exactly the same as it was when the consignment was shipped from Port of Brazil and U.S.A., If the Plant Quarantine Authority (Pak) have not required any other specifications.

c)    In case there are some additional specifications to regulate and monitor the suitability of the ultimate destination, the NPPO Egypt may also take all Phytosanitary measures at the recommendation of the shippers so that the needful as to the present destination be cured.

II)            If Phytosanitary status of the consignment is compromised then an independent Phytosanitary certificate after taking desired measures as to the desired specification of NPPO Pakistan/the Deputy Director (Quarantine), Department of Plant Protection (Pak) should be issued;

III)          The health and release of consignment is dependent upon any of the above eventualities and its compliance.

Dated: 04.05.2016                                                            Judge