Punjab-Haryana High Court
M/S Hariyali Kisaan Bazaar And Others vs State Of Haryana on 15 May, 2012
Crl. Misc. No.M-6615 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-6615 of 2011
Date of Decision: 15.05.2012
M/s Hariyali Kisaan Bazaar and others
....Petitioners
Versus
State of Haryana
...Respondent
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. S.S. Bhinder, Advocate
for the petitioners.
Mr. J.S. Rattu, D.A.G., Haryana
for the respondent-State.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J.
This is a petition under Section 482 of the Cr.P.C for quashing of the complaint titled as State of Haryana through Mr. Naresh Kumar, Quality Control Inspector, Rohtak vs M/s Hariyali Kisaan Bazaar, Bhiwani Road, Meham, District Rohtak and others qua petitioners M/s Hariyali Kisaan Bazaar pending before the Court of Chief Judicial Magistrate, Rohtak under Section 19(a) of the Seeds Act, 1966 for contravention of Section 7(b)(c) and Section 17(a) of the Seeds Act, 1966 and Sections 6 and 7 of the Seed Rules, 1968 made thereunder and all the subsequent proceedings in the said complaint No.127 dated 17.03.2010.
The facts of the case are that the petitioner No.1-Hariyali Kisaan Bazaar, Bhiwani Road, Meham, Rohtak is a registered dealer of seeds and holds a valid dealership certificate of registration/licence No.20-S dated 03.02.2009 issued by the notified authority for sale of Crl. Misc. No.M-6615 of 2011 2 seeds. Petitioners no.2 and 3 are one establishment carrying out the activity of distribution centre only for purposes of storing and distribution of seeds to the petitioner No.1 and other Hariyali Kisaan Bazaar outlets of the Company and hold a valid dealership certificate of registration/letter of authorization No.1048/seed/KKR dated 21.04.2009 issued by the notified authority for the purposes of storing and distributing seeds. The petitioner purchased seeds of Jowar variety SSG 555 from M/s Godavari Hybrid Seeds Company, Armoor, District Nizamabad (A.P.) vide invoice/Delivery Order No.063 dated 22.03.2009. The said M/s Godavari Hybrid Seeds Company is the producer/manufacturers of the seeds in question. The seeds, in question, admittedly produced by M/s Godavari Hybrid Seeds Company had declared the germination of the seeds of 90% and genetic purity to be 98% vide a declaration/truthful label affixed by the said producer/manufacturer on the sealed packets of seeds in question by affixing a truthful label which is placed on record as Annexure P-5. The validity/expiry of the seed was for a period upto December, 2009 when the seeds, in question, expired. The respondent-Quality Control Inspector made a surprised checking in the premises of petitioner No.1-Hariyali Kisaan Bazaar, Bhiwani Road, Meham, District Rohtak (Haryana) on 24.06.2009 and checked the stock of Jowar Seeds Variety SSG 555. Out of the three samples, the respondent sent one sealed sample to the Haryana State Seed Testing Laboratory, IADP, Karnal (Haryana) for the report of analyst and one referee sample was kept in the office of Deputy Director Agriculture, Rohtak. Thereafter, the licensing Authority-cum- Deputy Director, Agriculture Office, Rohtak issued Show Cause Notice dated 12.08.2009 for selling sub-standard seeds. The petitioners replied vide reply dated 05.09.2009. Thereafter, after an inordinate delay of more than six months, the respondent filed a complaint dated 17.03.2010 Crl. Misc. No.M-6615 of 2011 3 alleging therein that the petitioners had sold sub-standard seeds and have committed offence under Section 19(a) of the Seeds Act, 1966. Accordingly, notice was sent by the Chief Judicial Magistrate, Rohtak.
While praying for quashing of the said complaint, it was contended by learned counsel for the petitioners that as per the settled law, a statutory right has been conferred on the petitioners to get the samples retested from the Central Seeds Laboratory and the samples have to be tested by the Central Seeds Testing Laboratory before the expiry of shelf life of the sample. The present complaint has been filed on 17.03.2010 i.e much after the expiry of the sample of seeds in December 2009 and thus the valuable statutory right of the petitioners to have the sample retested/renalysed from the Central Seeds Testing Laboratory stands defeated thus seriously prejudicing the defence of the petitioners.
Reply has been filed. As per the reply, Annexure P-5 has not been disputed. There is no denial of the averments that the complaint has been filed after the expiry of the sample of the seeds. It is not denied that the validity/expiry of the seeds was upto December 2009.
Section 16 of the Seeds Act, 1966 reads as under :-
"16. Report of Seed Analyst :- (1) The Seed Analyst shall, as soon as may be after the receipt of the sample under sub-section (2) of Section 15, analyse the sample at the State Seed Laboratory and deliver, in such form as may be prescribed, one copy of the report of the result of the analysis to the Seed Inspector and another copy thereof to the person from whom the sample has been taken.
(2)After the institution of a prosecution under this Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending any of the samples mentioned in Clause (a) or Clause (c) of sub-section (2) of Section 15 to the Crl. Misc. No.M-6615 of 2011 4 Central Seed Laboratory for its report and on receipt of the application, the Court shall first ascertain that the mark and the seal or fastening as provided in Clause
(b) of sub-section (1) of Section 15 are intact and may then despatch the sample under its own seal to the Central Seed Laboratory which shall thereupon send its report to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of the analysis.
(3)The report sent by the Central Seed Laboratory under sub-section (2) shall supersede the report given by the Seed Analyst under sub-section (1).
(4)Where the report sent by the Central Seed Laboratory under sub-section (2) is produced in any proceedings under Section 19, it shall not be necessary in such proceedings to produce any sample or part thereof taken for analysis."
It is evident from the perusal of the said Section that the petitioners have a right to make an application to the Court for sending the third sample for analysis. The said right accrues only when the prosecution is instituted. In the present case, the sample was taken on 24.06.2009. As per Annexure P-5, the expiry date of the sample was December, 2009. Show Cause Notice was dated 12.08.2009 and the prosecution was filed after a delay of more than six months i.e on 17.03.2010. Meaning thereby that the statutory right of the petitioners to get the second sample analysed from the Central Seeds Testing Laboratory was defeated, thereby, causing prejudice to the petitioners as in view of Section 16(3) of the Seeds Act, 1966, the report sent by the Central Seed Laboratory under sub-section (2) shall supersede the report given by the Seed Analyst under sub-section (1).
Hon'ble the Apex Court in the case of State of State vs. National Organic Chemical Industries Ltd. reported as 1996(4) Crimes Crl. Misc. No.M-6615 of 2011 5 (SC) 169 under the Insecticides Act, 1968 quashed the proceedings as no action was taken on the request of the accused to get the second sample analysed and the accused had also lost his right to get third sample analysed from Central Insecticide Laboratory.
Para 6 of the said judgment reads as under :-
"6. 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 opporunity 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."
In almost similar set of circumstances, the Karnataka High Court in the case of S.A. Jayanarayana vs. State of Karnataka reported as 2003(3) Criminal Court Cases 0095 while dealing with the compliance under Section 16 of the Seeds Act, 1966 held in para 8 as under :-
"8. Nextly, it is to be seen that the report of the local Seed Testing Laboratory is not final and conclusive so as to hold the petitioners guilty of contravention of the provisions of the Act. Under Section 16(2) of the Act, after filing of a complaint and issue of process, an opportunity is available to the accused to challenge the report by way of making Crl. Misc. No.M-6615 of 2011 6 an application to the Court for sending the sample to the Central Seed Laboratory for retesting or rechecking the veracity of the report of local laboratory and as per sub-section (3) of Section 16 of the Act, this report of the Central Seed Testing Laboratory supersedes the report of the local Seed Testing Laboratory. As rightly contended by the learned counsel for the petitioners, the Indian Seeds Minimum Certification Manual itself prescribes the validity period of such certificates is nine months and as is not much in dispute, the shelf-life of seeds is taken as nine months. Any prosecution has to be filed within that period of nine months. If it is not done, then, opportunity of challenging and rebutting the local Seed Testing Laboratory by submitting the seeds beyond the said nine months to the Central Seed Testing Laboratory would be lost. As such, the basic right of the accused to defend himself by proving the correctness or otherwise of the local Seed Testing Laboratory report is taken away or made nugatory by launching the prosecution beyond this period of nine months. Since the right to defend is one of the fundamental rights and if such rights are taken away by delay or laches on the part of the prosecuting agency, the prosecution becomes illegal. Hence, in may view as the complaint has been filed on 6.6.2001, that is almost after a period of two years from the date of report, thereby negating the right of the accused to get the seeds tested as the shelf-life itself has already expired, the prosecution has to be quashed on this count also."
Similar view was also taken by the Andhra Pradesh High Court in the case titled as Smt. Mallela Laxmi and others vs. State of Andhra Pradesh reported as 2003 Crl. L.J. 638. Para 14 of the said judgment Crl. Misc. No.M-6615 of 2011 7 reads as under :-
"14. It is clear from Section 16 of the Act that the petitioners had the right to send the sample for analysis to the Central Seed Laboratory. It is a statutory right conferred on the petitioners, which cannot be deprived. Deprival of the said right would certainly cause prejudcie since the valuable right to get the sample analysed is lost. I am of the considered view that the shelf life of the seed has expired and there is no purpose in continuing the prosecution as it amounts to abuse of process of the Court as adumbrated by the Supereme Court in the aforesaid decisions. The department itself has to be blamed for the sorry state of affairs for launching the prosecution belatedly and sleeping over the matter. When once prejudice is caused to the petitioners, they are certainly entitled to invoke the inherent powers of this Court. Hence, I disagree with the contentions advanced by the learned Public Prosecutor. Since the shelf life the seed has expired, the question of sending the same to Central Seed Laboratory for analysis does not arise and the petitioners are certainly entitled to seek quashing of the proceedings."
In view of the above facts which are not disputed by the State, it is evident that the sample of the seeds, in question, had already expired by the time the complaint was filed. As such, the petitioners had lost the valuable right of sending the sample to the Central Seeds Testing Laboratory. As per Section 16(3) of the Seeds Act, 1966, the report sent by the Central Seed Laboratory under sub-section (2) shall supersede the report given by the Seed Analyst under sub-section (1).
In the present case, the report of the Central Seeds Testing Laboratory could not be made available.
In view of the above discussion, the present petition is allowed Crl. Misc. No.M-6615 of 2011 8 and complaint titled as State of Haryana through Mr. Naresh Kumar, Quality Control Inspector, Rohtak vs M/s Hariyali Kisaan Bazaar, Bhiwani Road, Meham, District Rohtak and others qua petitioners M/s Hariyali Kisaan Bazaar pending before the Court of Chief Judicial Magistrate, Rohtak under Section 19(a) of the Seeds Act, 1966 for contravention of Section 7(b)(c) and Section 17(a) of the Seeds Act, 1966 and Sections 6 and 7 of the Seed Rules, 1968 made thereunder and all the subsequent proceedings in the said complaint No.127 dated 17.03.2010 are hereby, quashed.
(NIRMALJIT KAUR) 15.05.2012 JUDGE gurpreet