Madras High Court
Sh.Jaikumar vs Agriculture Officer on 6 October, 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED : 26.04.2022
ORDER PRONOUNCED : 03.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD)Nos.19427, 21278 and 22073 of 2018
and
Crl.M.P.(MD) Nos.8796 & 8797, 9833, 9834, 10260 and 10261 of 2018
Sh.Jaikumar
.. Petitioner in Crl.O.P.(MD) Nos.19427 and 21278 of 2018
K.Marimuthu
.. Petitioner in Crl.O.P.(MD) No.22073 of 2018
Vs.
Agriculture Officer,
Srivilliputhur.
...Respondent in all Crl.O.Ps.,
COMMON PRAYER:Criminal Original Petitions are filed under
Section 482 of Cr.P.C, to call for the records relating to the proceedings
in STC.Nos.344 and 543 of 2018 on the file of the learned Judicial
Magistrate No.II, Srivilliputhur and quash the same as devoid of merits.
In Crl.O.P.(MD) Nos.19427 and 21278 of 2018
For Petitioners. : Mr.M.Kannan
https://www.mhc.tn.gov.in/judis
1/18
For Respondent : Mr.R.Meeenakshi Sundaram
Additional Public Prosecutor
In Crl.O.P.(MD) No.22073 of 2018
For Petitioner : Mr.M.Saravanan
For Respondent : Mr.R.Meeenakshi Sundaram
Additional Public Prosecutor
COMMON ORDER
These Criminal Original Petitions have been filed to call for the records relating to the proceedings in STC.Nos.344 and 543 of 2018 on the file of the learned Judicial Magistrate No.II, Srivilliputhur and to quash the same.
2.The case of the prosecution in all the matters are in brief:-
3.Insofar as Crl.O.P.(MD) No.19427 of 2018 is concerned, it is the case of the prosecution that on 07.09.2016, the agricultural officer inspected the shop, which belongs to the 4th accused, namely Vijayaragavan and at that time, he lifted the sample of insecticide, called Profenofos 50% E.C. by following due procedure. After following due procedures, the sample was sent to the Insecticides Analyst, PTL, Theni on 09.09.2016 and that was tested on 19.09.2016. A report was received on the same day stating that it is a misbranded one. So, on the basis of https://www.mhc.tn.gov.in/judis 2/18 the aforesaid complaint, the case was filed, which was taken cognizance in STC.No.344 of 2018. Seeking quashment of the same, the Senior Manager of Bio-Stadt India Ltd., Jammu, has filed this petition.
4.Similarly, insofar as Crl.O.P.(MD) No.21278 of 2018 is concerned, the very same sample of Profenofos 50% E.C., was lifted from the shop of S.Durga Raj, Sabari Agro Traders Retail Shop, Srivilliputhur by the respondent on 30.08.2016. After completing the formal procedures, sample was lifted and that was sent to the laboratory. Finding that it was misbranded one, the case was registered, after completing the procedural formalities, which was also taken cognizance in STC.No.543 of 2018. Seeking quashment of the same, the Senior Manager of Bio-Stadt India Ltd., Jammu has filed this petition.
5.Insofar as Crl.O.P.(MD) No.22073 of 2018 is concerned, similar insecticide sample was lifted from the shop of the 4th accused, namely Vijayaragavan, as stated in Crl.O.P.(MD) No.19427 of 2018. The 3rd accused, namely Marimuthu has filed this petition.
6.The facts in Crl.O.P.(MD) Nos.19427 and 22073 of 2018 are one and the same. The facts in Crl.O.P.(MD) No.21278 of 2018 are different https://www.mhc.tn.gov.in/judis 3/18 as stated above. Since in all the matters, insecticide, called Profenofos 50% E.C., was manufactured by the manufacturer, namely Bio-Stadt India Ltd., Lane-3, SIDCO Industries Complex, Bari-Brahmana, Jammu-181 133, all the petitions have been filed by the Senior Manager of the respective company. So, all these matters are disposed of by a common order.
7.Heard the learned counsel on either side.
8.First we will take up the petition in Crl.O.P.(MD) No.19427 of 2018 that has been filed by the Manufacturer, namely Jaikumar, Senior Manager, Bio-Stadt India Ltd., Jammu. The ground that is mentioned in this petition is that by the letter dated 06.10.2016, the company expressed its willingness to send the sample for reanalysis by the Central Insecticide Laboratory, Faridabad. But that was not properly responded. The referring sample was not deposited before the trial Court and the complaint has been filed belatedly.
9.The report, which was received in reference to some other area, cannot be taken advantage; The sanction order is also defective in nature; There is violation of statutory provision under Sections 24(3) and 24(6) https://www.mhc.tn.gov.in/judis 4/18 of Insecticides Act, 1968; The complaint was also filed much after the self life period of the insecticide; The date of manufacture of the insecticide is 09.01.2015; The date of expiry is mentioned as 08.01.2017. So, the complaint was filed much after the period of shelf life period of the insecticide ie., on 23.04.2018. So, on the sole ground itself, the entire prosecution is liable to be quashed. This is the common ground that has been raised in the petitions in Crl.O.P.(MD) Nos.19427 and 22073 of 2018 of 2018.
10.Insofar as Crl.O.P.(MD) No.21278 of 2018 is concerned, the date of expiry of the sample, as noted above, is same ie., 08.01.2017, but the report has been received on 16.09.2016. Here also, the complaint was filed after the self life period of the insecticide was over.
11.The short point, which arises for consideration, is whether lodging of the prosecution is bad in law, in view of the delay in filing the complaint after the self life period of the insecticide was over.
12.In Crl.O.P.(MD) No.19427 of 2018, we find that the complaint was presented before the learned Judicial Magistrate No.II, Srivilliputhur on 06.04.2018. We need not worry about the taking of cognizance, https://www.mhc.tn.gov.in/judis 5/18 because the date of presentation of the complaint is the material date. So, this shows that the complaint was filed after the self life period, which expired on 08.01.2017. After a lapse of one year from the date of expiry of the self life period, the prosecution has been laid.
13.Insofar as Crl.O.P.(MD) No.21278 of 2018 is concerned, as I mentioned above, the date of expiry is 08.01.2017, but the prosecution was lodged on 18.04.2018, much after the period of self life period of insecticide. Insofar as Crl.O.P.(MD) No.22073 of 2018 is concerned, even though a ground has been raised by the petitioner to the effect that he is only a dealer of the aforesaid insecticide, which was purchased from the manufacturer company, purchased in bulk, namely as wholesale by the 2nd accused company and later, that was delivered to the 3rd accused company, who is the petitioner herein and was only the distributor, it was sold to the 4th accused. However, it is seen that the complaint was filed much after the self life period, as noted above. So, all these matters can be disposed of jointly.
14.The respondent was not in a position to inform the Court about the reason for the delay. Now, it has been more or less well settled that filing of the complaint much after the period of self life period of the https://www.mhc.tn.gov.in/judis 6/18 insecticide is deprecated. In Crl.O.P.(MD) No.22073 of 2018, an explanation has been mentioned in the complaint to the effect that the request that was made by the petitioner for referring the sample for analysis by the Central Insecticide Laboratory, Faridabad was returned on 05.01.2017, since the self life period of insecticide about to expire on 08.01.2017. Further action was not taken. However, the complaint has been filed, since in respect of the very same batch, namely SBS5A002, the sample was lifted by the Agricultural Officer, Aruppukottai from some other shop. So, in that case, the insecticide sample was sent to the Central Insecticide Laboratory, Faridabad and the report has been received stating that it is a substandard one.
15.A copy of the aforesaid report by the Central Insecticide Laboratory, Faridabad is also enclosed along with the complaint by the petitioners in the typed set of papers. This, according to the petitioners, does not satisfy the requirement of law. Whatever may be the reason, now let us go the judicial pronouncements on this aspect.
16.In the case of State of Haryana Vs. Unique Farmaid Private Limited and others reported in (1999) 8 Supreme Court Cases 190, the case of Northern Mineral Limited Vs. Union of India and another https://www.mhc.tn.gov.in/judis 7/18 reported in (2010) 7 SCC 726 and in the case of Northern Minerals Limited and others Vs. Rajasthan Government and another reported in (2016) 12 SCC 298, it has been uniformly held that filing of the complaint after the self life period is over is not proper and the prosecution is liable to be quashed. These are the uniform view that has been taken by the Hon'ble Supreme Court in all the cases, wherein the self life period of the insecticide is over.
17.In response to this argument, the learned Additional Public Prosecutor for the respondent in all the cases would submit that the petitioners have successfully dragged the request for retesting and allowed the insecticide to expire automatically and then only, made requests for reanalysis. So, according to the respondent, the petitioners cannot take advantage of their own wrong, which was motivated and intentional to vitiate the proceedings.
18.In para 8 of the counter that has been filed in Crl.O.P.(MD) No. 19427 of 2018, it has been mentioned that the report was received and the show cause notice was issued to the accused persons; Reply was submitted on 06.10.2016, expressing their willingness for reanalysis; But they have not paid the cost; Because of the delay on the part of the https://www.mhc.tn.gov.in/judis 8/18 petitioners only, the mater was dragged on; The cost was paid only on 15.12.2016 and that was received on 19.12.2016; The period about to expire on 08.01.2017; Had the cost has been paid within time, the delay would not have been occurred. So, now the question, which arises for consideration, is whether this sort of contention on the part of the respondent can be accepted.
19.The purpose and reason for taking the sample procedure has its own purpose and meaning. As per Section 22 (6) of the Act, one sample must be restored to the person, from whom the sample was taken and another portion must be sent to the analysts and second portion must be produced before the Court. So, according to the respondent, when no proceeding was pending on the date of the aforesaid process, no question of depositing the same with the Court arises. But this sort of explanation cannot be accepted. The respondent ought not to have waited till the payment of cost by the petitioners. They ought to have filed the complaint before the concerned Court before the expiry of the self life period. Even after the filing of the complaint, there is no bar for the accused person to exercise the option for sending the deposited sample for reanalysis. Such a right is always available to the accused persons. So, the contention on the part of the respondent that only because of the https://www.mhc.tn.gov.in/judis 9/18 non-payment of the cost within time, it was not sent for analysis cannot be taken into account. Without waiting for the cost to be deposited, the complaint ought to have been filed. But that was not done.
20.Similarly, the contention on the part of the respondent to the effect that for the very same batch, in respect of which, the prosecution has been laid, was found to be substandard by the Central Insecticide Laboratory, Faridabad, when similar prosecution was lodged by the Agricultural Offier, Aruppukottai. But I am unable to agree with this line of arguments and the procedure has been clearly contemplated under the provisions of Insecticides Act, 1968. That ought to have been followed and deviation is not permitted. Excuses and explanations are not permitted. Since as I mentioned earlier, lodging of the prosecution much before the expiry of the self life period of the sample has its own purpose and meaning as has been elaborately discussed by the Hon'ble Supreme Court in the aforesaid judgments.
21.The argument has been advanced on the side of the Government is that except the defence that are permissible under Section 30 of the Act, no other defense is permissible under law. Paragraphs 10 to 12 of the judgment of the Hon'ble Supreme Court, which was earlier in point of https://www.mhc.tn.gov.in/judis 10/18 time, in the case of State of Haryana and Unique Farmaid Private Limited with another reported in (1999) 8 Supreme Court Cases 190, is relevant for our consideration.
“10.It has been submitted before us as well as before the High Court that the Insecticide Inspector was not competent to send the sample for re-testing to the Central Insecticides Laboratory and that request for re-testing should have been made to the Court concerned. Then the State has further submitted that no other defence than prescribed under Section 30 of the Act could he allowed to be raised in the prosecution filed under the Act and further that the shelf life of the sample was not relevant as the Act does not prescribe any expiry date. There is no substance in either of these contentions. If the expiry date is not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the date of manufacture of the article and the expiry date are mentioned. We do not find any answer to this by the State. In support of this submission, no rule has been cited and no evidence produced showing that the expiry date of the insecticide is inconsequential. Section 30 provides for defences which may or may not be allowed in prosecution under the Act. Section 30 is as under :
"30.Defences which may or may not be allowed in prosecutions under this act. -
(1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Act to prove merely that the accused was ignorant of the nature or quality of the insecticide in respect of which the offence was committed or of the risk involved in the manufacture, https://www.mhc.tn.gov.in/judis 11/18 sale or use of such insecticide or of the circumstances of its manufacture or import.
(2) For the purposes of section 17, an insecticide shall not be deemed to be misbranded only by reason of the fact that :
(a) there has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or the preparation of the insecticide as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the insecticide or to conceal its inferior quality or other defect; or
(b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it.
(3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves :
(a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof;
(b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and https://www.mhc.tn.gov.in/judis 12/18
(c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it."
11.Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT (1996) 10 SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and https://www.mhc.tn.gov.in/judis 13/18 the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal & Ors., [1998] 5 SCC 343 under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram, AIR (1967) SC 970; Chetumal v.
State of Madhya Pradesh & Anr., [1981] 3 SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf & Anr., [1999] 2 SCC 400 all under the Prevention of Food Adulteration Act, 1954.
12.It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub- section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, prejudicing them in their defence.” https://www.mhc.tn.gov.in/judis 14/18
22.So, this has been uniformly followed in subsequent cases also.
In view of the above, the prosecution is bad in law and is also liable to be quashed.
23.Insofar as Crl.O.P.(MD) No.22073 of 2018 is concerned, as I mentioned above, the petitioner herein is the 3rd accused in STC.No.344 of 2018, which is liable to be quashed. Even though the ground that has been raised by this petitioner to the effect that the petitioner is only a distributor and it was purchased from the 2nd accused in bulk and later, it was sold to the 4th accused, according to him, the defence that is available under Section 30 of the Insecticides Act, 1968 is squarely applicable to him and for that purpose, the petition, which was filed by the 4 th accused, namely Vijayaragavan in STC.No.344 of 2018 has been relied, wherein it has been observed that the aforesaid Vijayaragavan is only a retired dealer and the insecticide sale was kept in sealed condition and the sample was taken as it is and so, he cannot be hold responsible. Section 30 (3) of the Insecticides Act, 1968 is as follows:-
“30.(3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves
(a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof;
https://www.mhc.tn.gov.in/judis 15/18
(b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and
(c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it”
24.Here, as I mentioned earlier, it is the case of the petitioners that they are only the wholesalers, who purchased the same from the co- accused and it was sold to the 4th accused in the very same conditions. So, according to them, the benefit that was granted to the 4th accused must also be extended to them. Not only that, as I mentioned earlier, the prosecution is bad in law, in view of the filing of the prosecution much after a period of self life period. So, against this petitioners also, the prosecution is liable to be quashed, even though the defence under Section 30 (3) of the Act has been raised. So, all these petitions are liable to be allowed and in all the cases, the prosecution is liable to be quashed.
25.In the result, these Criminal Original Petitions stand allowed and the impugned orders in all these petitions are hereby quashed. Consequently, connected miscellaneous petitions are closed.
Index : Yes/No 03.08.2022 Internet : Yes/No https://www.mhc.tn.gov.in/judis 16/18 Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To Agriculture Officer, Srivilliputhur.
https://www.mhc.tn.gov.in/judis 17/18 G.ILANGOVAN. J.
mm Common Order made in Crl.O.P.(MD)Nos.19427, 21278 and 22073 of 2018 03.08.2022 https://www.mhc.tn.gov.in/judis 18/18