SHOGUN ORGANICS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is seeking direction to restrain the 2nd respondent from granting registration under Section 9(4) of the Insecticides Act, 1968 to the 4th respondent or to any other similar applicants for manufacture of two chemicals namely, 'Dtrans allethrin' and 'transfluthr in', by employing the manufacturing process for which the petitioner obtained patent under the Patents Act, 1970. Interalia, the petitioner is seeking declaration that the 2nd respondent is not authorised to give registration to the 4th respondent or to any other applicants with respect to manufacture of the above said two chemicals.

(2.) Question involved is, whether the authority granting registration under the Insecticides Act is bound to look into the aspect of registration of patent, for the purpose of granting registration. Procedure for registration of an insecticide for the first time is contemplated under Section 9(3) of the Insecticides Act. Section 9(4) enables any other person who is desiring to import or manufacture an insecticide for which registration has already been granted in the name of another person, to apply for registration. Such person will be allotted with a registration number and will be granted Certificate of Registration, with respect to the same insecticide, on the very same conditions upon which it was originally registered. Section 9(3) contemplates an enquiry by the authority, before granting registration, regarding efficacy of the insecticide and its safety to human beings and animals. Proviso to Section 9(3) insists that the 2nd respondent authority should ensure safety to human beings or animals and should ensure that the use of the insecticide involves no serious risk to human beings or animals.

(3.) Contention of the petitioner is that, provisions of the Patents Act, 1970, especially Section 48, enumerates the rights of a patentee. Sub-s.(b) of Section 48 provides that, when the subject matter of a patent is a process, the patentee is conferred with an exclusive right to prevent third parties, who did not have his consent, from using that process and from the act of offering for sale, selling, or importing any product obtained directly by that process, in India. Precisely, contention of the petitioner is that when he holds patent with respect to manufacturing process of the two chemicals, the 2nd respondent cannot grant registration under the Insecticides Act for manufacture or sale of those chemicals. In this respect, learned Senior counsel appearing for the petitioner had drawn my attention to 5.156 of the Patents Act,1970, which provides that the patent shall have for all intents the like effect as against the Government as it has against any person. Since the patent is binding on the Government, the 2nd respondent, being a statutory authority under the 1st respondent, cannot violate provisions of the Patents Act and shall not infringe interest of the patentee, is the contention.