Delhi High Court
Northern Minerals Limited vs Plant Protection Officer & Anr. on 16 July, 2008
Author: Sudershan Kumar Misra
Bench: Sudershan Kumar Misra
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. No.4391/2006
Date of Decision : July 16, 2008
Northern Minerals Limited ......Petitioner
Through : Mr. Arun Mehra &
Mr. Vinayak Mahna,
Advocates
Versus
Plant Protection Officer & Anr. ......Respondents
Through : Mr. Pawan Bahl,
Advocate for the State
CORAM :
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
SUDERSHAN KUMAR MISRA, J
1. This petition under Section 482 of the Criminal Procedure
Code has been instituted by Northern Minerals Ltd. praying that
complaint No.30/01/91 dated 19th January, 1991 filed against it
under Section 200 Cr.PC read with Section 29(1)(a) of the
Insecticides Act, 1968, be quashed.
2. The petitioner is a manufacturer of insecticides. Amongst
others, it manufactures the insecticide, Malathion 50% EC. The
petitioner claims that the said product is being manufactured in
accordance with the IS Specifications and is thereafter put on
the market through its various distributors and retailers. One
batch of insecticide Malathion 50% EC, bearing batch No.447,
Crl.M.C. No.4391/2006 Page 1 of 14
was manufactured by the petitioner in February, 1990. The
expiry date of this product was July, 1991. On 22 nd March,
1990, it was purchased by an Insecticide Inspector from a
retailer called „M/s Garg Khad & Seed Bhandar‟, Bawana at
Delhi. On 29th March, 2006, one sample of the product
purchased was sent by the Insecticide Inspector to the Regional
Pesticide Testing Laboratory at Chandigarh for testing and
analysis in terms of Rule 34 of the Insecticides Rules, 1971. In
the memorandum that accompanied the sample, the Inspector
had clearly stated that the date of manufacture was February,
1990 whilst, the date of expiry was July, 1991. It appears that
this sample was analysed by the said laboratory. It concluded
that, "the sample does not conform to the IS Specification in
active ingredient test requirement and misbranded."
According to the report of the laboratory, this sample was
tested on 24th July, 1990. Significantly, in paragraph 6 of this
report also, it is again categorically noted that the date of
manufacture is February, 1990 and that its date of expiry is
July, 1991.
3. According to the petitioner, it thereafter received a letter
dated 29th June, 1990 from the Insecticide Inspector, Delhi
Administration, informing it that one sample of insecticide
Malathion 50% EC, batch No.447, was taken from the
petitioner‟s dealer, which was found substandard after
laboratory testing. The dealer had informed the Inspector that
this product was purchased by him from the petitioner on 7 th
February, 1990, and that, therefore, it was the petitioner
Crl.M.C. No.4391/2006 Page 2 of 14
company that was responsible for the deficiency in standard.
By this letter, a clarification was sought from the petitioner as
to why substandard products were supplied by the petitioner
for sale, failing which, proceedings under the Insecticides Act,
1968, would be initiated against the petitioner.
4. On 2nd July, 1990, the petitioner acknowledged the said
letter and informed the Inspector that the requisite test report
has not been received with that letter and, in the absence of
the same, they are not in a position to comment upon the
allegations contained therein. It also asked for a copy of the
report to enable it to give a meaningful reply to the said letter.
In response, the petitioner received another letter dated 9 th
July, 1990 from the Insecticide Inspector enclosing the test
report. Thereafter, 24th July, 1990, the petitioner gave its
response. There, it disputed the conclusions arrived at in the
aforesaid test report. It reiterated that its samples conform to
IS 2567, and that as a matter of practice, a sample of each
batch manufactured by it is always kept, and on receipt of
communication from the Inspector; the petitioner had
reanalyzed the lab counter retention sample of the said batch
and found that the same conforms to the requisite standard. It
also enclosed this analysis report of the counter retention
sample for ready reference and categorically stated that it does
not accept the test report of the Regional Pesticide Testing
Laboratory, Chandigarh, relied upon by the Inspector. In
conclusion, it requested the Insecticide Inspector to send the
counter samples available at his end to any Central laboratory
Crl.M.C. No.4391/2006 Page 3 of 14
as per provisions of Section 24(2) of the Insecticides Act, 1968
read with Section 24(3) thereof. However, the Insecticide
inspector did not bother to respond to this communication.
5. Thereafter, it appears that a complaint was filed by the
Plant Protection Officer, Delhi Administration in the Court of
ACMM, Delhi on 19th January, 1991. By an order dated 21st
January, 1991, the learned MM summoned the accused,
including the petitioner herein, who was arrayed as accused
No.3 in that complaint, for 11th March, 1991. On 11th March,
1991 itself, an application under Section 24(4) of the
Insecticides Act was filed by the petitioner and the other co-
accused for reanalysis of the samples by the Central
Insecticides Laboratory. Notice on this application was issued
for 12th April, 1991. On 12th April, 1991, it appears that the
complainant sought more time to reply to that application.
Significantly, the adjournment sought by the complainant was
opposed by the petitioner, who also prayed for costs. The
Court, however, granted the adjournment without imposing any
costs on the ground that this was the first date fixed in the
case after issuance of summons, and the matter stood
adjourned to 22nd July, 1991. On 22nd July, 1991 also, no reply
was filed. Thereafter, repeated adjournments were sought and
were granted by the Court to the complainant for this purpose.
Ultimately, a reply came to be filed by the complainant to the
application of the petitioner under Section 24(4) of the
Insecticides Act only on 21st April, 2003, i.e. nearly 12 years
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later. By this time, however, the shelf life of the product, which
was seized by the Inspector, had expired long ago in July, 1991.
6. Before this Court, the counsel for the petitioner has based
his case on the sole ground that by this inordinate delay in
disposing of his client‟s application under Section 24(4) of the
Insecticides Act, 1968, its vested right, to seek retest and
reanalysis of the insecticide sample produced before the
Magistrate under Section 6 and Section 22 of the said Act, has
been frustrated, and therefore the complaint was liable to be
quashed. The petitioner averred that his application had still
not been decided by the MM and he was, therefore, deprived of
his right to get the sample reanalyzed from the Central
Insecticides Laboratory. Section 24 of the Insecticides Act is as
follows :
"(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 sixty 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 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 the proceeding in respect of
the sample are pending that he intends to
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adduce evidence in controverting 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, or its own motion or 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 laboratory,
which shall make the test or analysis and
report in writing signed by, or under the
authority of, the Director of 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."
7. A reading of Section 24(3) quoted above shows that a
report signed by the Insecticide Analyst shall be conclusive
evidence of the contents thereof unless the person from whom
the sample was taken, notifies the Insecticide Inspector or the
Court before whom any proceeding in respect of the sample is
pending, that he intends to adduce evidence controverting the
report, within 28 days of the receipt of a copy of such report.
According to the petitioner, even before filing of the complaint,
the petitioner had requested the Insecticide Inspector for
reanalysis on 24th July, 1990 itself. According to the counsel for
the petitioner, this request for reanalysis was made well within
the period of 28 days as prescribed under Section 24(3) of the
Insecticides Act, 1968. In addition, it is also contended that on
the very first appearance before the Court on 11 th March, 1991,
Crl.M.C. No.4391/2006 Page 6 of 14
an application was moved by the petitioner seeking reanalysis.
Even on that day, the shelf life of the sample, that had been
seized, had not yet expired. However, since the complainant
kept seeking repeated adjournments, which was also opposed
by the petitioner on 12th April, 1991 itself, the shelf life of the
product ultimately expired in July, 1991; and for that reason,
petitioner‟s right granted to him under Section 24 of the
Insecticides Act, 1968 was rendered illusory.
8. In reply, counsel for the State has stated that although
admittedly, the application for reanalysis was moved by the
petitioner on 11th March, 1991, i.e., on the very first day itself,
when it was posted for 12th April, 1991 for reply and
arguments, it was the duty of the petitioner to have informed
the Court that the shelf life of the product was expiring on July,
1991, when he opposed the grant of adjournment sought by
the complainant on 12.4.1991. He, however, does not
controvert the fact that on receipt of the test report on 9 th July,
1990, the petitioner had duly sought reanalysis on 24th July,
1990, i.e. well within the period of 28 days prescribed by
Section 24(3) of the Insecticides Act, and that no action was
taken in this behalf also by the Insecticides Inspector. Nor does
he controvert the fact that the expiry date of the sample was
mentioned not only on the product itself; but also in the report
of the analyst; as well as in paragraph 5 of the complaint filed
in Court seeking initiation of proceedings against the petitioner.
9. In support of his contentions, counsel for the petitioner
has relied upon a decision of the Supreme Court of India in
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State of Punjab Vs. National Organic Chemical
Industries Ltd. Reported as (1996) 11 SCC 613 where it
has been held that since one portion of the sample was not
delivered to the person from whom the insecticide was taken,
the accused had been deprived of a statutory opportunity to
have the sample tested by the Central Insecticides Laboratory
and, therefore, the accused in that case had been deprived of a
valuable defence statutorily available to him. In this
connection, the Supreme Court held as follows :
"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 the 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
Insecticides 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."
10. In another case decided by the Supreme Court in State
of Haryana Vs. Unique Farmaid (P) Ltd. & Ors. reported
as (1999) 8 SCC 190, also, the relevant facts were similar
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inasmuch as the shelf life of the insecticide sample expired
after the compliant had been filed in the Court, which would
render the sending of the sample to the CIL at that stage,
purposeless. There also, the Supreme Court had held that in
such circumstances, the accused was deprived of a right to get
the sample tested by the CIL and was thereby prejudiced in his
defence and consequently, the High Court had correctly
quashed the complaint. It felt that continuance of proceedings
would, under the circumstances, amount to an abuse of the
process of Court. In that case, the Insecticide Inspector had
visited the shop premises of the proprietor and drew the
samples. He gave one sample to the proprietor of the firm and
sent the second sample for testing. Since the quality control
laboratory found the sample to be misbranded, a notice, along
with the analysis report of the sample, was sent to the firm and
the manufacturer. In reply, the manufacturer denied the
allegations and notified its intention to adduce evidence to
support its contention and requested that the sample be tested
by the CIL at the manufacturer‟s cost. There also, without
responding to the manufacturer‟s request, the Insecticide
Inspector filed a criminal complaint against number of parties
including the manufacturer. Thereafter, the manufacturer
approached the High Court under Section 482 Cr.PC and Article
227 of the Constitution with the contention that on the one
hand, its request for retesting of the sample was ignored by the
Inspector, and on the other, by the time it was asked to appear
in the Court to stand trial, the shelf life of the insecticides, of
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which the sample was taken, had already expired, and that it
was thus deprived of a valuable right of defence. In that case,
the State had contended, inter alia, that the request for
retesting of the sample ought to have been made to the Court
and not to the Insecticide Inspector, and that the shelf life of
the sample was not relevant as the Act did not prescribe any
expiry date. Both these contentions were repelled by the
Supreme Court thus;
"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."
11. In the case at hand, not only did the petitioner apply well
within the prescribed period to the Insecticide Inspector in
terms of Section 24(3) to have the sample retested at its own
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cost on 24th July, 1990, which was ignored by the Inspector; on
the first date after the accused was summoned by the Trial
Court on 11th March, 1991, when the shelf life of the sample
drawn by the Inspector had not yet expired, the petitioner also
moved an application under Section 24(4) of the Insecticides
Act seeking reanalysis. There is no gainsaying the fact that
both the dates of manufacture as also the date of expiry were
writ large on the product. The expiry date was also duly noted
in the Analysis Report. It was also specifically mentioned in
paragraph 5 of the complaint filed by the Plant Protection
Officer before the MM. In addition, on 12 th April, 1991, the
petitioner/ accused also objected to the grant of any
adjournment to the complainant for replying to, and addressing
arguments on his application under Section 24(4) of the
Insecticides Act. To my mind, there was hardly anything more
that the petitioner could have done in the matter; and there is
no force in the contention of the respondent that the accused
was nevertheless duty bound to draw the attention of the Court
and the prosecution once again to the fact that the shelf life of
the sample was due to expire in another three months or so in
July, 1991. This fact was already well within the knowledge of
the complainant and no law or practice has been brought to my
notice that enjoins the accused to once again reiterate this fact
before the Court. If the Inspector chose to ignore the request
for retesting at the petitioner‟s cost in the first instance, even
before the complaint was filed, and thereafter has chosen not
to argue the application under Section 24(4) moved by the
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accused on the very first hearing of the case, whilst the shelf
life of the product had not yet expired, the prosecution has only
itself to blame.
12. Counsel for the petitioner has also cited a decision of the
Supreme Court in the case of M/s Gupta Chemicals Pvt. Ltd.
& Ors. Vs. State of Rajasthan & Anr. reported as 2002
(Supplemntary 1) JT 516 where the sample of the insecticide
was lifted on 31st October, 1991. The expiry date was
February, 1993. The report of the analyst was also received by
the Inspector in January, 1992 and intimation of the report was
sent to the manufacturer on 16th January, 1992. On receipt of
the intimation, the manufacturer informed the Inspector of its
intention to lead evidence against the report within the period
prescribed under the Act. Thereafter, the Inspector sought
permission to launch criminal proceedings. However,
permission was granted to do so only two years thereafter, in
July, 1994. By that time, the shelf life of the insecticide in
question had expired. The prosecution launched was sought to
be quashed on the ground that the two years taken to file the
complaint had deprived the manufacturer of a valuable right to
get the sample of the seized material examined by the Central
Insecticides Laboratory because, by that time, the shelf life of
the material seized had expired. In that case, the Supreme
Court held as follows :
"12. ....This is however subject to the right
of the accused to have the sample
examined by the central insecticides
laboratory provided he communicates his
intentions for the purpose within 28 days of
the receipt of the copy of the report. It
Crl.M.C. No.4391/2006 Page 12 of 14
needs no emphasis that this right vested
under the statutes valuable for the
defence, particularly in a case where the
allegations are that the material does not
conform to the prescribed standard. As
noted earlier in the present case the
appellants had intimated the insecticide
inspector their intention to have the sample
tested in the central insecticides laboratory
within the prescribed period of 28 days of
receipt of the copy of the state analyst
report, yet no step was taken by the
inspector either to send the sample to 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 instant case also, as already discussed, the
petitioner/ manufacturer had clearly informed the Insecticide
Inspector of its intention to have the sample tested in the
Central Insecticides Laboratory within the prescribed period of
28 days, but Inspector took no step in that direction. Even
after the prosecution came to be launched, no action was taken
on the petitioner‟s application under Section 24(2) of the
Insecticides Act seeking reanalysis of the sample and
ultimately, the shelf life of the sample expired. Clearly, a
valuable right that inured to the accused manufacturer under
Section 24 of the Insecticides Act has been defeated.
14. Under the circumstances, and as held by the aforesaid
decisions of the Supreme Court, I am of the view that
continuing this criminal prosecution against the petitioner will
Crl.M.C. No.4391/2006 Page 13 of 14
be a futile exercise and an abuse on the process of the Court.
Consequently, complaint No.30/01/91 dated 19.01.1991 under
Section 200 Cr.PC read with Section 29(1)(a) of the Insecticides
Act, 1968 and the prosecution launched against the petitioner
in that behalf, are quashed.
15. The petition is disposed of.
Crl. M.A.No.7488/2006
16. Since the petition has been disposed of, this application
does not survive and is also disposed of accordingly.
Sudershan Kumar Misra, J.
July 16, 2008 skw Crl.M.C. No.4391/2006 Page 14 of 14