Andhra HC (Pre-Telangana)
The Joint Director Of Agriculture Rep. ... vs Sai Agenices Rep. By Its Sole ... on 25 October, 2007
Equivalent citations: 2007CRILJ1753
JUDGMENT G. Yethirajulu, J.
1. This Appeal is preferred by the State represented by the Joint Director of Agriculture, Guntur in C.C. No. 223 of 1996 on the file of the VI Additional Munsif Magistrate, Guntur.
2. The Joint Director of Agriculture filed a case against the accused for the offence under Section 29(1)(a) read with 3(k)(i) & (viii) of the Insecticides Act, 1958. According to the prosecution A-1 is the Dealer, A-2 is the Distributor, A-3 is the Managing Partner, A-4 is the Manufacturing Firm and A-5 is the Quality Controller of A-4 Firm. On 16-09- 1995, PW-1, the then Agricultural Officer (T&V), Pedakakani, who is an Insecticides Officer under the Act, on credible information that A-1 is conducting business in insecticides without valid licence required to be obtained under Clause 13(1)(A) of the Act, inspected the business premises of A-1 and found 8 items of insecticides kept in the room. PW-1 sealed the room under the cover of mediatornama for want of sufficient lighting to draw the samples. He again visited the said premises on 18-09-1995, opened the sealed rooms and seized the stock manufactured by A-4 and distributed through A-2. The Agriculture Officer had drawn the samples as per the procedure prescribed under the Rules under a cover of panchanama. Samples were delivered to A-1, to the Assistant Director of Agriculture, to the Public Analyst, to the Joint Director of Agriculture, Guntur and to the Director of Agriculture, A.P., Hyderabad for storage purpose. The sample sent to the analyst was analyzed and the analyst sent a report on 15-11-1995 through his letter, dated 13-11-1995 opining that the sample Phorate 10% G was misbranded, since the content of the sample is only 7.39% against 10%. The said product was manufactured by A-4 under batch No. 170 and its date of expiry is January, 1997. The said product was distributed by A-2 and it was purchased by A-1. The Analyst report was served on A-1, A-2 and A-4 on 01-12-1995, 22-11-1995 and 16-11-1995 respectively and a show cause notice was issued calling for their explanations. A-1, A-2 and A-4 requested for reanalysis and accordingly, the reference sample was sent to the Central Insecticides Laboratory and they also found that the sample was misbranded since the contents of the same is 6.01% as against 10%. The report of the central laboratory was served on the accused. A-1 is responsible for stocking the insecticides without valid licence and selling the misbranded stock of Phorate 10% G. A-2 and A-3 are liable for distributing the same and A-4 and A-5 are liable for the manufacturing the said insecticide. After obtaining permission from the District Magistrate, Guntur to prosecute the Accused, a complaint was filed. The accused are, therefore, liable for punishment under Sections 29(1)(a) of the Act for contravention of Section 3(K)(i)(viii) of the Act. The Accused pleaded not guilty of the offence and claimed for trial.
3. The prosecution, in order to prove the guilt of the accused, examined PWs.1 and 2 and marked Exs.P-1 to P-16. The accused examined DWs.1 to 3 and marked Exs.D-1 to D-6. After conclusion of the trial, the lower Court acquitted the accused finding them not guilty of the offences. Being aggrieved by the same, the State preferred the present Appeal by contending that the lower Court failed to appreciate the evidence properly, though there is sufficient material to show that the insecticide was misbranded, therefore, the Judgment of the trial Court is liable to be set aside by convicting the accused for the said offence.
4. PW-1 is the then Agricultural Officer. He took the sample of the Insecticide from the shop of A-1. PW-2 is the Joint Director, who investigated and filed the case.
5. PW-1, the Agricultural Officer, was examined to prove the case of the prosecution. He stated that on the instructions of the Assistant Director of Agriculture, Guntur, he visited the shop of A-1 on 16-09-1995 and found it locked. After securing the presence of A-1, it was opened and on inspecting the shop in the presence of two mediators, he found 8 varieties of insecticides stocked in that room and as it was night, he sealed the stock room under the cover of Ex.P-2 panchanama. PW-1 again inspected the shop of A-1 on 18-09-1995 in the presence of mediators and took the sample from 8 varieties of insecticides, out of which he found 18 sealed packets each of 5 KG weight of "Phorate 10% G" and out of them he took one KG of Phorate from one packet and distributed the same into four polythene bags about 250 grams each and out of them one sample was sent to the PTL, Ananthapur for analysis, who opined that it is misbranded as the active ingredients of the sample were only 7.38% against 10%. One sample was given to A-1. One more sample was sent to Joint Director and another sample was sent to the Commissioner of Agriculture, Hyderabad for referee sample. Subsequent to the receipt of the analyst report, a show cause notice was issued to the accused and they submitted their explanation and the necessity to send another sample to the Central Insecticides Laboratory. On account of that request, the referee sample was sent to the CIL, after analysis it was found that the sample contained only 6.01% of active ingredients against 10% and issued Ex.P-13 opinion.
PW-1 in his cross examination admitted that he took 15 to 20 minutes in taking the sample in question and that there is variation in the reports given by PTL and CIL. He further stated that A-1 is running a fertilizer shop from which the samples of insecticides were taken. In July, 1995, when he inspected A-1 shop, he did not find A-1 dealing in insecticides. He further stated that A-1 has got landed property and that there is tolerance weight of 10% plus and 5% minus in respect of insecticides with active ingredients of 10%. PW-1 admitted that he has obtained a credit bill from A-1 and he failed to purchase the same. He further admitted that he did not observe A-1 selling insecticides.
6. The lower Court observed that it is not in dispute that A-1 is doing fertilizer business under a valid licence. It is also an undisputed fact that PW-1 inspected the shop of A-1 and found 8 varieties of insecticides as mentioned in Ex.P-10. It is also not disputed that A-1 did not possess a valid lincence for doing insecticides business. It was elicited from PW-1 that till 1992, A-1 did business in insecticides under a valid licence. In the present case, it is the contention of the prosecution that A-1 is doing insecticides business without licnece and the samples recovered from the shop of A-1 are misbranded. It is the plea of A-1 that he purchased the insecticide for his own use and kept them in the shop for safe custody. The lower Court further observed that in view of the explanation given by A-1, the burden is on the complainant to prove that A-1 was doing business in insecticides without any licence and the stock seized was only meant for sale, but not for his own use. It is an admitted fact that A-1 did not produce any licence to do business in insecticides. It is also not disputed that A-1 purchased the seized insecticides from A-2 firm under the cover of Ex.P-7 credit bills, which was issued in the name of firm. Ex.P-1 was seized by PW-1 when produced by A-1 at the time of inspection. Ex.P-8 is another bill issued by Madras Fertilizers Limited in the name of A-1 firm. On Ex.P-8 A-1 signed after putting stamp of his firm. A-1 gave an explanation in Ex.P-16 that though he stopped the business in insecticide in the year 1992, Ex.P-7 was issued in the name of firm by A-2 as they know him in that name only. The lower Court further observed that on perusal of Exs.P-7 and P-8 it clearly indicates that A-1 was doing business in insecticides as on 11-09-1995. In the statement given by PW-1 at the time of inspection on 16-09-1995 under Ex.P-1 letterhead, it was specifically mentioned that he was doing business in fertilizers and insecticides. The perusal of Ex.P-1, A-1 admitted that he purchased insecticides at the pressure of ryots in September, 1995 and he also applied for renewal of his insecticides licence. The lower Court, therefore, held that the insecticides were purchased on behalf of the firm for sale and not for his own use.
7. In Ex.P-16 explanation given by A-1, he stated that his signatures were obtained on Ex.P-1 by PW-1 highhandedly and the firm stamp was also affixed. The lower Court observed that if really the signatures of A-1 are taken highhandedly, he will not keep quite and he can report the matter to the higher officials of PW-1. Till the date of trial, A-1 did not make any such attempt and it was only a bare allegation. In the absence of any material, it can be safely concluded that A-1 gave Ex.P-1 statement and other documents voluntarily. The lower Court further observed that without licnece, the accused is not expected to do business in insecticides and the prosecution established that the stock available with the accused is only meant for sale.
8. The accused contended before the lower court that there is a variation in the reports given by the PTL and CIL under Exs.P-12 and P-13 reports and there is no evidence to show that the referee sample was stored in good condition, therefore, the variation could occur due to bad storage, as such the benefit has to be given in favour of the accused. The lower Court observed that the PW-2 no where stated in his evidence that the referee sample was kept in good condition as required under Instruction No. 20. There is no evidence placed by the prosecution to show that the referee sample was sent to the Joint Director of Agirculture for preservation. Ex.P-12 report given by PTL is superceded by Ex.P-13 report given by CIL. The permission was obtained from the concerned authority to prosecute the accused on the basis of Ex.P-12 report, but not on the basis of Ex.P-13 report. The lower Court therefore, observed that though there is variation in the levels, they did not meet the standard of 10%, therefore, it is a misbranded one as per the provisions of Section 3(k)(i) and (viii) of the Act and the mere fact that the complaint is filed basing on Ex.P-12 report has caused no prejudice to the accused as both the reports clearly show that the percentage of the ingredients is less than the percentage prescribed.
9. The accused contended that the sample sent to the CIL is entirely different from that of the sample sent to the PTL due to lack of batch number and code number and the difference in expiry date, as such it cannot be said that the sample tested by PTL and CIL are one and the same. The lower Court observed that it is evident from the record that the same sample as referee sample was sent to CIL. The mere fact that the CIL Analyst noticed the expiry date as July, 1997 instead of January, 1997, will not give any benefit in favour of the accused because the batch number is tallying. It is not the contention of A-4 that the product from which the sample was taken is not manufactured in their factory and the batch number was not denied. Since the identity numbers of the sample sent to PTL and CIL are one and the same, it cannot be said that there is a variance between the product analyzed by PTL and CIL covered by Exs.P-12 and P-13 reports respectively. In para No. 21 of the Judgment, the lower Court observed that though the samples were said to be taken in the presence of mediators, none of them were examined and no explanation was offered by the prosecution for their non-examination. PW-1, though a public servant, is an interested witness as he lifted the sample, therefore, his evidence will not be taken into consideration unless it is corroborated by any independent witness or mediators, therefore, an adverse inference has to be drawn under Section 114(g) of the Indian Evidence Act for non-examination of the mediators.
10. Under Section 21(1)(e) of the Act, the Insecticide Officer has power to take samples of any insecticide and send such samples for analysis to the Insecticide Analyst for test in the prescribed manner. Under this clause, no specific method of taking sample of insecticide is prescribed by the Act or the Rules and the procedure for analysis of insecticides is the same as specified by the Indian Standard Institution. In Dy. Director of Agriculture v. Sandoz Ltd. 1990 (3) ALT 601, the A.P. High Court held that:
Method of taking sample of insecticides is not prescribed by the Act or Rules and the procedure for analysis of insecticides is the same as specified by the Indian Standard Institution.
When there is no procedure prescribed under the Act or Rules that the samples must be taken in the presence of mediators and when the persons living in the nearby place of occurrence did not come forward to stand as mediators, taking sample under a special report is not barred. Even if there is a mediators' report, if the mediators do not want to cooperate with the prosecution for the reasons best known to them, the evidence of the Inspector can be accepted regarding the collection of samples, provided his evidence is trustworthy and acceptable. The question of examination of mediators or any other person would arise, if the accused denies the visit of the Inspector to the shop and taking samples from the insecticides available in the shop. But in this case, the accused did not deny the presence of insecticides in the shop and the Inspector taking samples in the presence of A-1. When it is not mandatory under the Code that the sample should be taken only in the presence of the mediators and when sample taking is not disputed, the non-examination of the mediators is in no way caused prejudice to the accused, therefore, the finding of the lower Court on this aspect is set aside.
11. It was further submitted by the accused that they deprived of the right of sending sample to other analyst. As the reports covered by Exs.P-12 and P-13 were not served on A-2 to A-4. The lower Court observed that the copy of report of the analyst is to be served on all the accused so long as the said report is sought to be used against all of them. The service of the report is mandatory under Rule 34 of the Insecticides Rules and the non-compliance of the mandatory provision vitiates the prosecution.
12. The purpose of serving the report on the accused was to give them an opportunity to send another sample to CIL for the purpose of testing whether the sample confirms to the standard prescribed under the Act and to give the accused an opportunity to test the sample for the second time through the CIL. In the present case, the sample was sent for analysis at the instance of A-1 and got the second report covered by Ex.P-13, therefore, the very purpose of sending the second sample is served and there is no prescribed procedure to send the third sample to another authority. Therefore, it will not cause any prejudice to the accused on account of non-serving of the copy of the Analyst report to the accused by serving it on A-1.
13. The accused contended before the trial Court that when 1 KG packet and 5 KG packet of Phorate 10% G were of the same batch, there should not be any such discrepancy, therefore, there is every possibility of mishandling in collecting or preserving the sample, as such the said discrepancy occurred and the accused is entitled for such benefit. It is further contended that when the samples taken from 1 KG packet were found to the standard prescribed under Law, the standard of 5 KG packet should also be the same as they were manufactured under the same batch. But the sample taken from 5 KG packet is not to the specifications under Exs.P-12 and P-13. As Exs.P-12 and P-13 were taken from 5 KG bag, their standard must be one and the same. Since the prosecution failed to explain as to how the difference in standard arose and it is the duty of the prosecution to explain as to how the bags are meddled with, therefore, the benefit has to be given to the accused.
14. It is an undisputed fact that Exs.P-12 and P-13 indicate that the product was misbranded. The samples were taken in the presence of A-1 and other policemen. It is not the contention of the accused that the samples were taken from loose bags. When the samples were taken from the sealed packets, it is for the accused to explain whether the packets were not sealed before taking of the sample and whether they brought to the notice of the Inspector that they are loose packets and samples cannot be taken from those packets. When the accused did not object at the time of taking samples or during the trial, there is no possibility of middling with the packets. Since the analyst report amply established that the products were misbranded, the accused cannot avoid the liability and the lower court Erred in coming to a conclusion that the accused are entitled to benefit of doubt on this point.
15. The learned Counsel for the accused further submitted that the sanction order does not bear the seal of the authority and it was not proved by examining the authority that the signature on the report is in his handwriting. The lower Court observed that the report does not bear the seal of the sanctioning authority and the prosecution also failed to examine the sanctioning authority to prove the sanction order. As seen from Ex.P-14, it is evident that it does not bear the seal of the sanctioning authority and the date of issue, therefore, there is no proper sanction order and the prosecution is liable to be vitiated. The lower Court further observed that no material was placed by the prosecution that the sanctioning authority applied its mind before it is granted.
16. Section 31 of the Act reads as follows:
31. Cognizance and trial of offences : (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorized in this behalf by the State Government.
(2) No Court inferior to that of a Metropolitan magistrate or a Judicial Magistrate of the first class shall try any offence under this Act." In the above section, it is categorically mentioned that filing of the prosecution is prohibited without the written consent of the State Government or a person authorized in this behalf. Section 31 contemplates a consent to prosecute and not sanction to prosecute. The term 'consent to prosecute' is totally different from the term 'sanction to prosecute'. The 'sanction to prosecute' implies application of mind of the facts of the case before the sanctioning authority. The term 'consent to prosecute' would not involve such exercise. In the present case, a letter was written to the concerned authority for according consent and the authority issued the consent letter. In view of the distinction between sanction and consent and as the consent order was proved by one of the witnesses by identifying the signature of the competent authority, I do not find any grounds to hold that there is no valid sanction order, therefore, the finding of the lower Court on this aspect is set aside.
17. The contention of the accused that the analyst was not examined to prove Exs.P-12 and P-13 reports is not valid in view of Section 24(3) of the Act, which reads thus:
24. Report of Insecticide Analyst : (1) The Insecticide Analyst to whom....
(2) ...
(3) Any document purporting 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 controversion of the report.
Under the above Section, the opinion of the Analyst is conclusive. Therefore, the non-examination of the analyst to prove the report is not fatal to the case of the prosecution and the finding of the lower court in this regard is set aside.
18. After going through the entire Judgment, I find that the lower Court erred in holding that the accused are entitled for acquittal. But in the light of the above circumstances, I am convinced that there was misbranding of the insecticides, which was supplied by the Manufacturers and sold by A-1, therefore, the accused are liable to be convicted for the offence under Section 29(1)(a) read with 3(k)(i) & (viii) Act.
19. In the result, the Criminal Appeal is allowed and the Judgment of the trial Court in C.C. No. 223 of 1996 acquitting the accused is set aside. The accused are convicted for the offence covered by the charge viz., under Section 29(1)(a) read with Section 3(k)(i) & (viii) of the Insecticides Act, 1958.
20. The matter is remitted back to the trial Court along with entire record and the Judgment of this Court directing to secure the presence of the accused, question them about the quantum of sentence and impose appropriate sentence on each of the accused basing on the facts and circumstances of the case.