Madhya Pradesh High Court
Vishesh Bansal vs The State Of Madhya Pradesh on 7 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 7th OF MAY, 2024
MISC. CRIMINAL CASE No. 52793 of 2020
BETWEEN:-
1. VISHESH BANSAL (M.D.) S/O TARUN
KUMAR BANSAL, AGED ABOUT 34 YEARS,
OCCUPATION: (M.D.) VIZIEN ORGANICS
312 AMBER COMPLEX COMMERCIAL
AREA AZADPUR DELHI (DELHI)
2. R.S. TIWARI S/O UDHAIRAJ TIWARI, AGED
ABOUT 62 YEARS, OCCUPATION: QUALITY
CONTROLLER, VIZIEN ORGANICS
REGIONAL OFFICE 24, S.D.A. COMPOUND
DEVASNAKA, INDORE (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH MS. TANVI K. AGRAWAL-
ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THR. SENIOR
AGRICULTURAL DEVELOPMENT OFFICER CUM
THE DISTRICT INSECTICIDE INSPECTOR AND
ALSO SUB DIVISIONAL AGRICULTURAL
OFFICER SHRI G.S. MANDLEKAR HARDA HARDA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE )
MISC. CRIMINAL CASE No. 99 of 2021
BETWEEN:-
2
1. VISHESH BANSAL S/O TARUN KUMAR
BANSAL, AGED ABOUT 34 YEARS,
OCCUPATION: (M.D.) VIZIEN
ORGANICS 312 AMBER COMPLEX
COMMERCIAL AREA AZADPUR DELHI
(DELHI)
2. R.S. TIWARI S/O UDHAIRAJ TIWARI,
AGED ABOUT 62 YEARS, OCCUPATION:
QUALITY CONTROLLER, VIZIEN
ORGANICS REGIONAL OFFICE 24,
S.D.A. COMPOUND DEVASNAKA,
INDORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH MS. TANVI K. AGRAWAL -
ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THR.
SENION AGRICULTURAL DEVELOPMENT
OFFICER CUM THE DISTRICT INSECTICIDE
INSPECTOR AND ASLO SUB DIVISIONAL
AGRICULTURAL OFFICER SHRI G.S.
MANDLEKAR HARDA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE )
MISC. CRIMINAL CASE No. 103 of 2021
BETWEEN:-
1. VISHESH BANSAL S/O TARUN KUMAR
BANSAL, AGED ABOUT 34 YEARS,
OCCUPATION: (M.D.) VIZIEN
ORGANICS 312 AMBER COMPLEX
COMMERCIAL AREA AZADPUR DELHI
(DELHI)
2. R.S. TIWARI S/O UDHAIRAJ TIWARI,
AGED ABOUT 64 YEARS, OCCUPATION:
QUALITY CONTROLLER, VIZIEN
3
ORGANICS REGIONAL OFFICE 24,
S.D.A. COMPOUND DEVASNAKA,
INDORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH MS. TANVI K. AGRAWAL-
ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THR.
SENION AGRICULTURAL DEVELOPMENT
OFFICER CUM THE DISTRICT INSECTICIDE
INSPECTOR AND ASLO SUB DIVISIONAL
AGRICULTURAL OFFICER SHRI G.S.
MANDLEKAR HARDA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MOHAN SAUSARKAR- GOVERNMENT ADVOCATE )
MISC. CRIMINAL CASE No. 106 of 2021
BETWEEN:-
1. VISHESH BANSAL S/O TARUN KUMAR
BANSAL, AGED ABOUT 34 YEARS,
OCCUPATION: (M.D.) VIZIEN
ORGANICS 312 AMBER COMPLEX
COMMERCIAL AREA AZADPUR DELHI
(DELHI)
2. R.S. TIWARI S/O UDHAIRAJ TIWARI,
AGED ABOUT 62 YEARS, OCCUPATION:
QUALITY CONTROLLER, VIZIEN
ORGANICS REGIONAL OFFICE 24,
S.D.A. COMPOUND DEVASNAKA,
INDORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH MS. TANVI K. AGRAWAL -
ADVOCATE)
AND
4
THE STATE OF MADHYA PRADESH THR.
SENION AGRICULTURAL DEVELOPMENT
OFFICER CUM THE DISTRICT INSECTICIDE
INSPECTOR AND ASLO SUB DIVISIONAL
AGRICULTURAL OFFICER SHRI G.S.
MANDLEKAR HARDA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MOHAN SAUSARKAR- GOVERNMENT ADVOCATE )
MISC. CRIMINAL CASE No. 109 of 2021
BETWEEN:-
1. VISHESH BANSAL S/O TARUN KUMAR
BANSAL, AGED ABOUT 34 YEARS,
OCCUPATION: (M.D.) VIZIEN
ORGANICS 312 AMBER COMPLEX
COMMERCIAL AREA AZADPUR DELHI
(DELHI)
2. R.S. TIWARI S/O UDHAIRAJ TIWARI,
AGED ABOUT 62 YEARS, OCCUPATION:
QUALITY CONTROLLER, VIZIEN
ORGANICS REGIONAL OFFICE 24,
S.D.A. COMPOUND DEVASNAKA,
INDORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH MS. TANVI K. AGRAWAL -
ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THR.
SENION AGRICULTURAL DEVELOPMENT
OFFICER CUM THE DISTRICT INSECTICIDE
INSPECTOR AND ASLO SUB DIVISIONAL
AGRICULTURAL OFFICER SHRI G.S.
MANDLEKAR HARDA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MOHAN SAUSARKAR- GOVERNMENT ADVOCATE )
5
This application coming on for admission this day, the court
passed the following:
ORDER
1. It is submitted by counsel for the applicants that except the date of report of the Insecticide Analyst and date of the applications, by which, intention to adduce evidence in contraversion of the report of Insecticide Analyst, all other questions of law are identical and in all the cases, application under Section 24 (3) of the Insecticide Act was filed within a period of 28 days from the date of report of Insecticide Analyst.
2. Accordingly, by this common order, M.Cr.C.No.99/2021, M.Cr.C.No. 103/2021, M.Cr.C.No.106/2021 and M.Cr.C.No.109/2021 are being decided.
3. For the sake of convenience, the facts of M.Cr.C.No.52793/2020 are taken into consideration.
4. This application under Section 482 of Cr.P.C. has been filed seeking the following relief :-
"It is, therefore, prayed that this Hon'ble High Court be pleased to set aside the Complaint filed by the Complainant under Section 200 Cr.P.C. and all consequential proceedings arising thereof, in RCT Case No.739/2019, in the interest of justice."
5. It is submitted by counsel for the applicants that applicant no.1 is Managing Director of Vizien Organics, Delhi and applicant no. 2 is working as Quality Controller, in Vizien Organics, Zonal Office, Indore.
66. It is the case of the prosecution that a complaint was filed on the allegations that in the month of June-July 2018, complaints were received that on account of use of Savera Fafundi (Carbendazim + Mancozeb 12%+36%), the crops were destroyed. Accordingly, sample of Savera Fafudi was lifted from M/s. Harsh Agro Agency on 3.7.2018 by Dy. Director, Agriculture, Harda. By letter dated 4.7.2018, the sample was sent to Insecticide Analyst for testing. Savera Fafundi was sold by M/s Harsh Agro Agency and the documents pertaining to sale of said insecticide were also seized from the shop. On 12.7.2018 Insecticide Analyst submitted its report that the sample is misbranded and it was found that in place 12% only 1.06% of Carbendazim was found whereas in place of 36% no Mancozeb was found at all. A show cause notice dated 6-7-2018 was issued to M/s Harsh Agro Agency. Since the replies submitted by M/s Harsh Agro Agency as well as by the Manufacturer were not found to be satisfied, therefore, license issued in favor of M/s Harsh Agro Agency was cancelled. Accordingly, it was pleaded that complaint for offence under Section 3
(k) (l) of Insecticide Act has been committed which is punishable under Section 29(1) (A) of Insecticide Act is being filed after due information to the accused persons.
7. From the plain reading of the entire complaint, it is clear that there is no reference to the notice which was required under Section 24 of Insecticide Act.
8. It is submitted by Counsel for the applicants that a restrain order dated 20.7.2018 was issued to the applicants along with the copy of report of Insecticide Analyst. Although, this notice was not issued under Section 7 24(2) of Insecticide Act, but in spite of that the applicants made an application on 6.8.2018 for sending the sample to the Central Insecticides Laboratory. However, no action was taken on the said report and a complaint was filed. An application was filed by the applicants before the Trial Court for sending the sample to the Laboratory. However, the said application was rejected by the Trial Court / CJM, Harda, District Harda by order dated 16.1.2019 on the ground that the application was filed after 161 days.
9. By this application, the applicants have challenged the proceedings on the ground that no notice as required under Section 24 (2) of the Insecticides Act, 1968 was issued to the applicants and their valuable right of getting the sample tested from a Central Laboratory has been violated.
10. By referring to restriction order issued by Dy. Director, Agriculture, Harda, it is submitted by counsel for the applicants that it was the only order which was sent to the applicants along with copy of the report of Insecticides Analyst. The applicants thereafter moved an application for sending the sample to the Central Insecticides Laboratory on 6.8.2018. However, no action was taken.
11. This Court on 16.6.2021 had passed the following order :-
"Petitioners has filed these petitions for quashing of proceedings in Complaint Case No.741/2019.
2. Learned Senior Counsel for the petitioners submitted that Inspector of Insecticides has taken a sample of fungicides which was sold in the name of Savera Fafundi on 3.7.2018. Sample was collected from M/s Harsh Agro Agency, Harda. Sample was sent for testing to Insecticide Quality Control 8 Laboratory, Adhartal, Jabalpur on 4.7.2018. Report of sample was received on 12.7.2018. According to report, product was misbranded. Said insecticide was manufactured by Vizien Organics. Complaint was filed in the court on 30.7.2018.
3. Learned Senior Counsel for the petitioners submitted that there is violation of Sections 22(5), 24 and 24(4) of Insecticides Act, 1968. It is submitted that notice under section 24 of the Act was given to Gurjar Agricultural Service Centre and not to petitioners. Sample was not collected in accordance with Section 22(5) of the Act and third portion was not preserved and was not restored to petitioner. The report of analyst was controverted by petitioners vide its reply dated 6.8.2018 and request was made for retesting it at Central Insecticide Laboratory, Faridabad but no action was taken by the respondent. Thereafter petitioners have also filed an application before the court under section 24(4) of the Act of 1968 but said application was rejected on 16.1.2019 on the ground that application has been filed belatedly.
4. Learned Senior Counsel for the petitioner relied on (1996) 11 SCC 613, State of Punjab vs. National Organic Chemical Industries Ltd. It is submitted that in the said case it was held that respondent was not given third sample as a result he has been deprived of his statutory right to have the sample tested by Central Insecticide Laboratory. Respondent has been deprived of his valuable defence statutorily available to him. In the circumstances the Apex Court upheld the quashing of complaint by High Court.
5. Learned Senior Counsel also relied on (2010) 7 SCC 726, Northern Mineral Limited vs. Union of India and Another. In this case it was held that intention to controvert the report was conveyed in 9 time but action was not promptly taken by the authorities and sample became untestable. In the circumstances proceedings were quashed.
6. Learned Panel Lawyer submitted that report of sample was received on 12.7.2018. As per the report, Insecticide was misbranded. Company did not file any application for examination of sample within 30 days. It is further submitted that sample has been collected as per Section 22 of the Insecticides Act, 1968. There is no violation of Section 24(3) of the Act of 1968 by the respondent. In view of the same, he submits that the petition filed by the petitioner may be dismissed.
7. Heard the learned counsel for the parties.
8. From perusal of case file and document, it is apparent that report of Insecticides Quality Control Laboratory was prepared on 12.7.2018. According to the report sample fails to confirm to relevant specification in active ingredient contents in the test, hence misbranded. On same date i.e. 12.7.2018 notice was sent to M/s Gurjar Agricultural Service Centre, Harda. M/s Gurjar Agricultural Service Centre, Harda informed Dy. Director that product Savera was manufactured by Vizien Organics, Indore. It is submitted that he is only the seller. Responsibility for misbranding the product is on the producer company. Licensing authority and Dy. Director issued a notice to petitioners on 20.7.2018 and thereafter reply was filed by Vizien Organics on 2.8.2018. In reply dated 6.8.2018 prayer was made to get the sample examined from Central Insecticide Laboratory, Faridabad, Haryana. Request for re- examination under section 24(3) of the Act was made by petitioners within a period of 28 days from receipt of report under section 24 of the Act. Report was contradicted and request for testing and analysis was made on the 25th day. Petitioners have 10 exercised their right under section 24(3) of the Act. After receiving the request no action has been taken by respondents.
9. Petitioners had filed an application on 11.1.2019 under section 24(4) of the Act, in Court for testing of sample. On 14.1.2019 a letter was addressed to CJM Harda by Insecticides Inspector stating therein that notices were sent to M/s Harsh Agro Agency and to Vizien Organics dated 20.7.2018 and they had submitted their reply on 2.8.2018. In reply no request was made for testing samples. In letter dated 14.1.2019 there is no reference of letter dated 6.8.2018. Court of C.J.M vide its order dated 16.1.2019 rejected the application filed by petitioner company. Learned C.J.M relied on letter dated 1.7.2018 and 28.7.2018 by which information was given to petitioner company. Reply of petitioners dated 2.8.2018 was also attached in the complaint case. Petitioners had filed application on 11.1.2019 after period of 161 days, therefore, application was rejected.
10. From a perusal of complaint case and documents filed alongwith it, it is clear that the question which is vital for decision in this case is whether letter dated 6.8.2018 contained in Annexure P/3 was sent to respondents or not. Seal on said letter is not clear which could have been an evidence of receipt of letter by Dy. Director, Agriculture.
11. In view of the same, learned Panel Lawyer is directed to file an affidavit whether letter dated 6.8.2018 was received in the office of Dy. Director, Agriculture or not and also copy of reply dated 2.8.2018.
12. Learned counsel for the petitioners is also directed to file copy of letter dated 2.8.2018 which has been referred to in order of C.J.M and copy of 11 letter dated 6.8.2018 with legible seal on it if same is available with petitioners.
List these matters after three weeks for consideration."
12. Accordingly, respondent has filed its return and has taken dual stand in paragraphs no. 8 and 9 which read as under :-
"8. That, it is pertinent to mention that the applicants were provided with the copy of report of Insecticide Analyst on 20.07.2018 and thereafter, he did not make any request of the testing of sample to the prescribed authority i.e. Insecticide Inspector or the Court before which the proceedings were pending in accordance of Section 24 (3) of the Act.
9. That, the letter dated 06.08.2018 which is alleged to have been submitted by the applicants, it is submitted before the Deputy Director, Agriculture, Harda who is not the prescribed authority as per Section 24 (3) of the Act."
13. In paragraph no. 8 it has been submitted by counsel for the State that applicants were provided with copy of the report of Insecticides Analyst on 20.7.2018 and thereafter, he did not make any request of the testing of sample to the prescribed authority. However, in paragraph no. 9 it is mentioned that letter dated 6.8.2018 which is alleged to have been submitted by the applicants before the Dy. Director, Agriculture, Harda is not the prescribed authority as per Section 24 (3) of the Act.
1214. There is no averment in the reply that letter dated 6.8.2018 filed by the applicants along with this application which was allegedly made to Dy. Director, Agriculture Harda, is a forged document. Only contention in paragraph no. 9 is that Dy. Director, Agriculture, Harda was not the prescribed authority under Section 24 (3) of the Insecticides Act, 1968. Thus, the genuineness of the letter / application dated 6.8.2018 has not been disputed by the State.
15. Now, the only question for consideration is as to whether any notice under Section 24 (2) of the Insecticides Act was ever issued to the applicants and whether the applicants have made a request for retesting of the sample by Central Insecticides Laboratory or not?
16. As already pointed out, in the written complaint, there is no whisper of the fact that any notice under Section 24 of Insecticide Act was ever issued to the applicants.
17. Section 24 of the Insecticides Act, 1968 reads as under :-
"24. Report of Insecticide Analyst.-
(1)The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-section (6) of section 22, shall, within a period of [thirty] days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form.
(2)The Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample.
(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 13 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. (4)Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion 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, within a period of thirty days, 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. (5)The cost of a test or analysis made by the Central Insecticides Laboratory under sub-section (4) shall be paid by the complainant or the accused, as the Court shall direct."
18. From plain reading of Section 24 (2) of the Insecticides Act, it is clear that it is for the Insecticide Inspector to send a copy of the report to the person from whom the sample was taken. Section 24 (3) of the Act provides that after receipt of the said report, the person concerned can make an application in writing to the Insecticides Inspector within 28 days thereafter with an intention to adduce evidence in contraversion 14 of the report and in that situation, provisions of Section 24 (4) will come into picture.
19. It is submitted by Shri Mohan Sausarkar that since application dated 6.8.2018 was not made to the Insecticides Inspector but it was made to Dy. Director, Agriculture, Harda, therefore, it was not made to competent authority and thus, it was rightly not taken into consideration.
20. It is the case of the prosecution that report was sent along with order dated 20.7.2018. Copy of the order dated 20.7.2018 has been filed along with application which is at page 51. In fact, by this order, a prohibitory order was issued for selling the concerning insecticides along with copy of the report of the Insecticides Analyst. It is nowhere mentioned in the said order that it has been issued under Section 24 (2) of the Insecticides Act. Furthermore, this order was issued by the Dy. Director, Agriculture Welfare and Agriculture Development, District Harda. If Section 24 (2) of the Insecticides Act is read in its strict sense, then it was for the Insecticide Inspector to send a copy of report Insecticides Analyst to the person concerned. But admittedly, no notice was issued by the Insecticides Inspector but copy of the report of the Insecticides Analyst was sent by the Dy. Director along with this order dated 20.7.2018.
21. If Sections 24 (2) and (3) of the Insecticides Act are read jointly, then it is clear that intention to adduce evidence in contraversion of the report of the Insecticide Analyst is to be made to the same authority who had sent notice under Section 24 (2) of the Insecticides Act. Once Dy. Director has sent a copy of the order dated 20.7.2018, then applicants 15 did not commit any mistake by expressing their intention to adduce evidence in contraversion of the report by making an application to Dy. Director, Agriculture, Harda. Even otherwise, if Dy. Director, Agriculture, Harda was of the view that he is not competent to take action in the matter, then he should have forwarded that application to the Insecticide Inspector. It is not the case of the respondent that any separate notice under Section 24(2) of Insecticide Act was issued by the Insecticide Inspector.
22. At this stage, it is submitted by counsel for the applicants that in fact, Dy. Director, Agriculture, Harda is also known as Insecticide Inspector and in fact not only Dy. Director, Agriculture, Harda had collected the sample, it was he who sent the sample to the laboratory. Further in the report of Insecticide Analyst it is clearly mentioned that the sample was sent by Dy Director, Agriculture, Harda.
23. Under these circumstances, this Court is of the considered opinion that once the applicants had expressed their intention to adduce evidence in contraversion of the report as required under Section 24 (3) of the Insecticides Act, 1968, then it was incumbent upon the complainant to send it for analysis to the Central Insecticides Laboratory. Once the applicants had expressed their intention to adduce evidence in contraversion of the report, then presumption against report of the Insecticides Analyst, then it shall be final and conclusive evidence of misbranding loses its importance. Thus, by not sending the sample to Central Insecticides Laboratory, the complainant has violated the valuable right of the applicants which is mandatory in nature and cannot be by-passed.
1624. The Supreme Court in the case of Northern Mineral Ltd. v. Union of India, reported in (2010) 7 SCC 726 has held as under :
18. From a plain reading of Section 24(3) of the Act, it is evident that an accused within 28 days of the receipt of the copy of the report of the Insecticide Analyst to avoid its evidentiary value is required to notify in writing to the Insecticide Inspector or the court before which the proceeding is pending that it intends to adduce evidence in controversion of the report. Section 24(4) of the Act provides that when an accused had notified its intention of adducing evidence in controversion of the Insecticide Analyst's report under Section 24(3) of the Act, the court may of its own motion or in its discretion at the request either of the complainant or the accused cause the sample to be sent for analysis to the Central Insecticides Laboratory.
19. Under the scheme of the Act when the accused had notified its intention to adduce evidence in controversion of the report of the Insecticide Analyst, the legal fiction that the report of the Insecticide Analyst shall be conclusive evidence of the facts stated in its report loses its conclusive character. The legislature has used similar expression i.e. the "intention to adduce evidence in controversion of the report" in both sub-section (3) and sub-section (4) of Section 24 of the Act, hence both the expressions have to be given one and the same meaning. Notification of an intention to adduce evidence in controversion of the report takes out the report of the Insecticide Analyst from the class of "conclusive evidence" contemplated under sub-section (3) of Section 24 of the Act.
Further, the intention of adducing evidence in controversion of the Insecticide Analyst's report clothes the Magistrate with the power to send the 17 sample for analysis to the Central Insecticides Laboratory either on its own motion or at the request of the complainant or the accused.
20. In the face of the language employed in Section 24(4) of the Act, the act of the accused notifying in writing its intention to adduce evidence in controversion of the report in our opinion shall give right to the accused and would be sufficient to clothe the Magistrate with the jurisdiction to send the sample to the Central Insecticides Laboratory for analysis and it is not required to state that it intends to get the sample analysed from the Central Insecticides Laboratory. True it is that report of the Insecticide Analyst can be challenged on various grounds but the accused cannot be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion. The moment it is done, the conclusive evidentiary value of the report gets denuded and the statutory right to get the sample tested and analysed by the Central Insecticides Laboratory gets fructified.
21. The decisions of this Court in National Organic Chemical Industries Ltd., Unique Farmaid (P) Ltd. and Gupta Chemicals (P) Ltd., in our opinion do support Mr Nehra's contention. True it is that in the first two cases, the accused, besides sending intimation that they intend to adduce evidence in controversion of the report the accused persons have specifically demanded for sending the sample for analysis by the Central Insecticides Laboratory. However, the ratio of the decision does not rest on this fact. While laying down the law, this Court only took into consideration that the accused had intimated its intention to adduce evidence in controversion of the report and that conferred on him the right to get 18 the sample tested by the Central Insecticides Laboratory. The decision of this Court in Gupta Chemicals is very close to the facts of the present case. In the said case "on receipt of the information about the State Analyst's Report the appellants sent intimation to the Inspector expressing their intention to lead evidence against the report" and this intimation was read to mean "their intention to have the sample tested in the Central Insecticides Laboratory".
22. From the language and the underlying object behind Sections 24(3) and (4) of the Act as also from the ratio of the aforesaid decisions of this Court, we are of the opinion that mere notifying the intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court with the jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that the sample be sent for analysis to the Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to the Central Insecticides Laboratory for test and analysis.
23. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of the Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before the court where proceeding in respect of the samples is pending. Further, the court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused.
1924. No proceeding was pending before any court when the accused was served with the Insecticide Analyst's Report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background the Insecticide Inspector was obliged to institute complaint forthwith and produce the sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. The appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to the Central Insecticides Laboratory.
25. The Supreme Court in the case of Gupta Chemicals (P) Ltd. v. State of Rajasthan, reported in (2010) 7 SCC 735 has held as under :
11. From a perusal of the aforequoted provisions, it is manifest that ordinarily in the absence of any material to the contrary, the report of the Insecticides Analyst will be accepted as final and conclusive of the material contained therewith.
This is however, subject to the right of the accused to have the sample examined by the Central Insecticides Laboratory provided he communicates his intention for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this right vested under the statute is valuable for the defence, particularly, in a case where the allegations are that the material does not conform to the prescribed standard.
12. As noted earlier, in the present case, the appellants had intimated the Insecticides Inspector their intention to have the sample tested in the Central Insecticides Laboratory within the prescribed period of 28 days of the receipt of the copy of the State Analyst's Report, yet no step was taken by the Inspector either to send the sample to 20 the Central Insecticides Laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the Magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the Inspector, it has not been possible for the appellants to have the sample examined by the Central Insecticides Laboratory and in the meantime, the shelf life of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination.
13. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of court. The High Court was not right in dismissing the petition filed under Section 482 CrPC.
26. The Supreme Court in the case of State of Punjab v. National Organic Chemical Industries Ltd., reported in (1996) 11 SCC 613 has held as under :
5. A reading thereof would indicate that the Insecticide Inspector is empowered to take samples of insecticides for the purpose of test or analysis, as contemplated and in the manner laid down in the Act and the rules. He shall divide the sample into three portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked. Under the proviso, where the insecticide is made up in containers of small volume instead of dividing a sample as specified, the Insecticide Inspector may, and if the insecticide be such that it is likely to deteriorate or be otherwise damaged by exposure, shall, take three of the said containers 21 after suitably marking the same and, where necessary, sealing them. Under sub-section (6), the Insecticide Inspector thereafter shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it and he shall retain the remainder and dispose of the same as envisaged in clauses (i) and (ii). After the receipt of the report, sub-section (3) of Section 24 declares that:
"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."
Sub-section (4) of Section 24 envisages that:
"Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion 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 therein."22
Under sub-section (6), the cost of the test or analysis made by the Central Insecticide Laboratory, under sub-section (4) shall be paid by the complainant or the accused, as the court shall direct. Thus, it would be clear that after the inspection and seizure of the insecticide, the Insecticide Inspector shall divide the insecticide into three portions, as contemplated and in the manner prescribed and deliver one such sample to the manufacturer or person from whom the insecticide was taken. One should be sent to the Insecticide Analyst. After the receipt of the report, the accused would be notified of the result of the report. Thereafter, the complaint is required to be lodged in the court. At that stage, two options are open to the accused. The accused is entitled to have one copy of the sample entrusted to him to have it notified to the court for proving to be contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given. That such certificate by the Director of CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under sub-section (3) of Section 24. The other option is, after the complaint is laid in the court, the copy of the sample that is lodged with the court by the Insecticide Inspector, would be requested to be sent by the court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, consent and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court.
236. 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 the 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 of the statutory defence. The appellant had not given the 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.
27. The Supreme Court in the case of Northern Minerals Ltd. v. Rajasthan Govt., reported in (2016) 12 SCC 298 has held as under :
12. First and foremost, it is imperative for us to conclude that the judgment rendered by this Court in Northern Mineral Ltd. case, relied upon by the learned counsel for the appellants, squarely applies to the facts and circumstances of this case, and that the prayers made in the instant appeal deserve to be accepted on the basis of the legal position declared by this Court in the above judgment. We order accordingly.
13. Insofar as the contention of the learned counsel for the respondents in distinguishing the right of the person from whom the sample was taken, as mandated under Section 24(3) is concerned, we need only refer to sub-section (4) 24 of Section 24 of the Act which extends the above right, even to the complainant and the accused.
Read harmoniously, therefore, we have no hesitation to conclude, that insofar as the person from whom the sample was taken, the right to raise an objection is circumscribed by requiring him to indicate his intention to do so within 28 days of the receipt of the copy of the report. There is however no such limitation of time placed by the legislature on the complainant and/or the other accused proceeded against. In the above view of the matter, insofar as the present appeal is concerned, we find that a vital right vested in the appellant-accused to get the sample retested (from the Central Insecticides Laboratory), to controvert the report of analysis of the sample obtained by the Insecticide Inspector, stood frustrated. The appellants have lost the right to disprove their guilt. The appellants cannot be proceeded against, when they have, for no fault of their own, lost a vital right of defence. We are satisfied to conclude that under sub-section (4) of Section 24 of the Act, an accused other than a person from whom the sample is taken, also has a right to adduce evidence in controversion of the Insecticide Analyst's report, and in case the accused avail of the above right under sub-section (4) of Section 24, he must bear the expenses of the test or analysis, to be made by the Central Insecticides Laboratory [under sub-section (5) of Section 24].
28. The Supreme Court in the case of Indofil Industries Ltd. v. State of Punjab, reported in (2017) 8 SCC 656 has held as under:
15. Before the proceedings are instituted, the Insecticide Inspector, in terms of Section 24, is obliged to obtain the report of the Insecticide 25 Analyst. The Analyst is required to deliver the report to the Insecticide Inspector within the prescribed time (30 days). Upon receipt of the said report, the Insecticide Inspector is then required to issue show cause to the person from whom the sample was taken and retain the second copy of the report for use in any prosecution in respect of the samples.
16. Sub-sections (3) and (4) of Section 24 are of some significance. The same read thus:
"24. (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. (4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion 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, within a period of thirty days, 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."26
17. On a bare reading of sub-section (3), it is seen that the first part declares that the report signed by the Insecticide Analyst shall be evidence of the facts stated therein and it shall be conclusive, unless the "person from whom" the sample was taken exercises his right by notifying in writing within the specified time that he intends to adduce evidence in controversion of that report. Thus, the second part of this provision gives a right to the person from whom the sample was collected to raise an objection. Once the person from whom the sample was taken exercises that right in terms of sub-section (4), the conclusiveness of the report of the Insecticide Analyst (State Analyst) referred to in the first part of the same provision cannot be used against such person. These provisions are in the nature of rules of evidence. Further, if the criminal complaint is launched and the person is named as an accused, he can request the Magistrate concerned before whom the proceedings are pending to send the third sample produced before the Court to the CIL for testing or analysis. That right can be exercised only if the complaint is founded on the report of the State Insecticide Analyst. However, if the complaint is filed also on the basis of the report of the CIL, then the question of exercising the right under Section 24(4) does not endure to the accused. For, the purport of Section 24(4) is that the report of the CIL shall be conclusive evidence of the facts stated therein. It is pertinent to bear in mind that the opening part of sub-section (4) of Section 24 opens with the words, "Unless the sample has already been tested or analysed in the CIL". Therefore, in cases where such report is already obtained or available, the criminal prosecution must proceed on that basis. In other words, only 27 if the analysis report of the CIL is not available or filed along with complaint or placed on record in the criminal prosecution, would the accused get a right to request the Magistrate concerned to direct testing or analysis of the third sample produced before that Court by the prosecution from the CIL and not otherwise. Any other view would entail in rewriting of the provisions, which are otherwise plain and unambiguous. Thus, if the report of the CIL has been obtained before filing of the complaint or pursuant to the direction given by the Magistrate concerned and made part of record of the criminal prosecution, as in this case, the accused named in the complaint cannot ask for analysis of the sample already used at the instance of the person from whom it was taken and is named as co-accused.
18. To put it differently, the provisions of the Act predicate that the Insecticide Inspector has ample power to send the sample for testing or analysis to the CIL on his own. Rather, it is his duty to do so if such an express request is made by the person from whom the sample was taken. The argument of the appellants that the Insecticide Analyst cannot do so unless a formal complaint is filed and the Magistrate concerned so directs, is in the teeth of the dictum of this Court in State of Haryana v. Unique Farmaid (P) Ltd. and Gupta Chemicals (P) Ltd. This Court has expressly rejected that stand taken by the State and has held that the Insecticide Inspector must take prompt steps to send the sample to the CIL immediately after the protest is notified about the report given by the State Insecticide Analyst. The Insecticide Inspector has the option either to send the third sample on the request made by the person from whom it was collected to the CIL for testing or analysis or to launch a criminal prosecution and 28 submit the third sample in the court concerned well before the expiry of shelf life of the insecticide to enable the accused named in the complaint to ask for testing or analysis thereof in the CIL. We, therefore, conclude that the High Court was right in dismissing the petition filed to quash the criminal proceedings pending against the appellants in respect of misbranded insecticide, for the additional reasons indicated in this judgment."
29. Under these circumstances, this Court is of the considered opinion that once the valuable right of the applicants for getting sample tested from Central Insecticides Laboratory has been violated, therefore, prosecution of the applicants on the basis of the complaint filed by the complainant under Section 200 of Cr.P.C. cannot be allowed to continue.
30. As a consequence thereof, complaint filed by the complainant under Section 200 of Cr.P.C. and all consequential proceedings arising thereof in RCT Case Nos.739/2019, 741/2019, 743/2019, 740/2019 and 738/2019 are hereby quashed.
31. Applications succeed and are hereby allowed.
(G.S. AHLUWALIA) JUDGE JP JITENDRA KUMAR Digitally signed by JITENDRA KUMAR PAROUHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE, 2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6 PAROUHA 324a2f64a5a, postalCode=482001, st=Madhya Pradesh, serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033 E5FF10402B19143AD99, cn=JITENDRA KUMAR PAROUHA Date: 2024.05.09 10:35:26 +05'30'