Punjab-Haryana High Court
Krishi Kainder vs State Of Punjab on 20 March, 1997
Equivalent citations: 1998CRILJ351
Author: Nanak Chand Khichi
Bench: Nanak Chand Khichi
JUDGMENT Nanak Chand Khichi, J.
1. Herein, the prayer is for quashing the complaint dated 2-2-1995 (Ann. P.2), under Sections 3(k)(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 (hereinafter referred to as the 'Act) read with Rule 27(5) of the Insecticide Rules, 1971, as well as all the consequent proceedings arising thereof, now pending in the Court of Chief Judicial Magistrate, Amritsar.
2. The petitioner-firm is selling and distributing in secticides/pesticides under a licence duly issued by the Chief Agricultural Officer, Amritsar, and Shri Amrik Singh is its sole proprietor. On 15-2-1994, Shri Swinder Singh, Insecticide Inspector in the presence of Amrik Singh, the Agricultural Development Officer, Amritsar, visited the premises of the petitioner-firm and drew 3 samples of Monocrotophos 36% SL (brand name Monosul 36%) bearing batch No. 338, dale of manufacturing July, 1993 and dale of expiry December, 1994, manufactured by M/s. Sulphur Mills Pvt. Ltd., T. V. Estate SK Ahir Marg, Worli, Bombay. One sealed sample was handed over to Shri Vijay Kumar Dogra, Accountant against a valid receipt. One sealed sample together with memorandum in form XII was sent to the Senior Analyst. Insecticide Testing Laboratory, Amritsar, for analysis whereas third part of the test sample was kept in the office. The Analyst, vide his report found the sample as misbranded as it did not conform to ISI specifications as it contained 30.55% active ingredient against the granted percentage of 36% SL and on that basis the complaint dated 2-2-1995 (Ann. P.2) was filed in the Court of Chief Judicial Magistrate, Amritsar, against the petitioners-manufacturer and others.
It is alleged by the petitioner that a detailed reply dated 16-5-1994 (Ann. P. I) was given to the Chief Agricultural Officer, in response to the show cause notice dated 26-4-1994, wherein it was specifically mentioned that the petitioner was not satisfied with the report of the Testing Laboratory and re-q nested for sending the sample for reanalysis to the Central Insecticide Laboratory. However, without sending the sample for re-analysis to the Central Insecticide Laboratory as provided under Section 24(4) of the Act the complaint was filed. It is further alleged that the petitioner has been deprived of its valuable right under the Act for getting the sample re-analysed from the Central Insecticide Laboratory due to the negligence on the part of the complainant-respondent as the complaint was filed after the expiry of shelf life of the sample.
3. On receipt of the notice, the respondent-Slate filed reply in the form of affidavit of Swinder Singh, Insecticide Inspector, wherein factual position with regard to the taking of samples and issuance of show cause notice and receipt of reply thereto has not been disputed. However, it was pleaded that the Chief Agricultural Officer, Amritsar, intimated the petitioner vide letter No. 9401 dated 19-7-94 (Ann. R. 1) that according to Section 24(4) of the Act the right to get order for re-analysis is vested with the Court of law and the petitioner should approach the Court for that purpose.
4. I have heard the learned Counsel for the parties and have perused the record.
5. Shri Ravinder Chopra, learned counsel for the petitioner has vehemently argued that the sample of the insecticide in question was taken on 15-2-1994, the manufacturing date of which was July, 1993 and the expiry date was December. 1994. He has further submitted that in response to the show cause notice dated 26-4-1994, a proper reply dated 16-5-1994 (Ann.P. 1) was sent and it was made clear that the petitioner was not satisfied with the report of the Testing Laboratory and requested the Chief Agricultural Officer, Amritsar for sending the counterpart of the sample for re-analysis to the Central Insecticide Laboratory. He has further submitted that the counterpart sample was not sent as prayed for, and the complainant filed the complaint (Ann. P.2), dated 2-2-1995, i.e. much after the expiry of the shelf life of the insecticide and in this manner, the petitioner has been deprived of his valuable right under Section 24 of the Act and on this ground alone the complain I is liable to be quashed.
6. On the other hand, the learned Deputy Advocate General has forcefully argued that after receipt of the show cause notice it was for the petitioner-firm to have approached the Court for sending the counter-sample to the Central Insecticide Laboratory and since no step was taken in that direction, therefore, there is no violation of any right of the petitioner.
I have given my thoughtful consideration to the respective arguments of the counsel for the parties. In order to appreciate these arguments of the learned counsel for the parties, the relevant portion of Section 24 of the Act may be noticed as under :-
(3) Any document supporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty-eight days of the receipt of a copy of the report notified in writing the Insecticide Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report.
(4) Unless the sample has already been tested or analysed in the Central Insecticide Laboratory, where a person has under Sub-section (3) notified his intention of adducing evidence in controvention of the Insecticide Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or of the accused cause the sample of the Insecticide produced before the Magistrate under Sub-section (6) of section 22 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of the Director of the Central Insecticides Laboratory the result thereof and such report shall be conclusive evidence of the facts stated therein.
7. From the perusal of the above provisions it is quite clear that the petitioner had a right to get the sample re-analysed since it was informed that the sample was found to be mis-branded. It is admitted fact on record that on receipt of show cause notice dated 26-4-1994, along with the report, the petitioner intimated the respondent vide reply dated 16-5-1994 (Ann. P.I) that the report of the Analyst was not acceptable being not correct and the counter-sample be sent for re-analysis to the Central Insecticide Laboratory. It is an admitted fact that no counter sample was sent to Central Insecticide Laboratory, as prayed for by the petitioner and that the complaint (Ann.P.2) was filed on 2-2-1995, in the Court of Chief Judicial Magistrate, Amritsar, against the petitioner-manufacturer and others. It is admitted case of the parties that the manufacturing date of the insecticide in question was July, 1993 and the expiry date was December, 1994. Since the complaint was filed on 2-2-1995 i.e. much after the expiry of the shelf life of the insecticide, therefore, the petitioner has been deprived of a valuable right to defend in the proceedings. In Criminal Misc. No. 9158-M of 1995 (Jhajhan Lal Gupta v. State of Haryana), decided on 5-2-1996, it was held by a single Bench of this Court as under:-
There is no provision under the Act that the manufacturer can get the sample re-tested before launching prosecution against him except in Sub-section (3) whereby he can challenge the report of the Insecticide Analyst only. Section 24 of the Act confers two rights i.e. the right to challenge the correctness of the report of the analysis on the receipt of the show cause notice, and secondly to challenge the same and to make a request before the court for re-analysis of the counter-sample after the complaint is filed. The provisions of this section simply provide that in case a written request is made by the manufacturer expressing its intention to controvert the report of the Analyst, the report shall not be conclusive evidence of the facts contained therein. Therefore, the service of the notice regarding the sample being misbranded or intimating the manufacturer that the re-analysis can be ordered by a Court before the date of expiry of shelf life of the insecticide, is of no consequence. The material requirement of the Act is that the complaint should be filed and the accused should be served well in time before the expiry of the shelf life of the insecticide in question so as to enable the accused persons to challenge the correctness of the report of the Analyst by forwarding the counterpart of the sample to the Central Laboratory. If this right of an accused under the Act is violated by inaction or omission on the part of the department, the same is fatal to the prosecution.
Same view was taken in the judgments delivered in Crl. Misc. No. 15276-M of 1995 (Cashew Agrichemicals Pvt. Ltd. and Ors. v. State of Punjab), decided on 14-10-1996; Crl. Misc. No. 5095-M of 1995 (Unique Paramid Pvt. Ltd. v. State of Punjab); decided on 7-9-1995; Crl. Misc. No. 21572-M of 1995 (Jaishree Pvt. Ltd. v. State of Haryana) and Crl. Misc. No. 5596-M of 1996 (Balwant Singh v. State of Punjab), decided on 10-4-1996, in the State of Punjab v. National Organic Chemical Industries Ltd. 1996 (10) JT (SC) 460, the Apex Court held as under:-
Unfortunately, in this case, the appellant did not adopt the course as was required under the Act. Of course, the respondent, without availing of the remedy of report by Director of CIL, may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail the statutory defence. The appellant had not given third sample to the respondent. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him. Under these circumstances, we think that further proceedings in the Court of the Chief Judicial Magistrate would be rendered fruitless. Consequently, though for different reasons the complaint quashed by the Court may be justified warranting no interference.
8. In view of the law and the facts of the case discussed above, it becomes clear that there has been a clear violation of the provisions of Section 24 of the Act and the valuable right of the petitioner has been taken away by the inaction and sheer negligence on the part of the complainant-respondent by not filing the complaint before the expiry of the shelf life of the insecticide in question. This omission on the part of the respondent itself is fatal to the case of the complainant.
9. In view of the foregoing discussion, this petition is allowed and the complaint dated 2-2-1995 (Ann.P.2)and all consequential proceedings arising thereof qua the petitioner and pending in the Court of Chief Judicial Magistrate, Amritsar, are hereby quashed Petition allowed.