Gujarat High Court
Vidya Madhusudan Murkumbi vs State Of Gujarat & on 4 April, 2017
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/15148/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 15148 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VIDYA MADHUSUDAN MURKUMBI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR NANDISH THAKKAR FOR THAKKAR AND PAHWA ADVOCATES,
ADVOCATE for the Applicant(s) No. 1
MR NJ SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 04/04/2017
ORAL JUDGMENT
1. The present application is filed u/s.482 of the Page 1 of 15 HC-NIC Page 1 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT Code of Criminal Procedure (for short, "the Cr.P.C.") for quashing and setting aside the criminal complaint being Criminal Case No.1146 of 1999 pending before the Court of learned J.M.F.C., Idar.
2. Heard learned advocate Mr. Nandish Thakkar appearing for M/s. Thakkar and Pahwa Advocates for the applicantoriginal accused no.4. He submitted that the complaint being Criminal Case No.1146 of 1999 has been filed by respondent no.2original complainant u/s.3(d) (1), 17(a)(b)(c), 18(1)(c) r/w. 29(1) of the Insecticides Act, 1968 (for short, "the Act") against the applicant and five others.
3. It is alleged in the complaint that sample of "Azadirachtin", manufactured in August 1997 and having expiry in July 1999, was collected by the complainant on 22.09.1998 and it was sent to the Regional Pesticide Testing Laboratory, Kanpur for analysis on the same day. The said Laboratory submitted the Report on 04.12.1998 wherein, it was stated that the active ingredient content present in the sample was only 0.03% w/v. instead of 0.15% w/v. and thus, there was a breach of the relevant provisions of the Act. It is further alleged in the complaint that showcause Notice dated 22.01.1999 was issued seeking necessary explanation for the above breach of the provisions of the Act. It is stated that accused no.5 gave explanation stating that he had sold the insecticide to accused no.3, who, in turn, had sold it to accused no.1.
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4. Learned advocate Mr. Thakkar has submitted that there is no reference with regard to the role played by the present applicant and original accused no.4 in the impugned complaint except that the accused is shown to be the responsible person of accused no.3 Company.
4.1 At this stage, learned advocate has placed on record the showcause Notice dated 22.01.1999 issued by the complainant and the communication dated 02.02.1999 issued by the present applicant to the complainant. The said documents are taken on record. Learned advocate Mr. Thakkar has pointed out from the aforesaid communication dated 02.02.1999 that by way of the said communication the present applicant has specifically asked the complainant to send the sample for reanalysis to different Laboratory. It is the specific case of the applicant that though such request was made, the complainant did not send the sample for reanalysis to the Central Laboratory.
4.2 It is further submitted that the selflife of the sample had expired as per the declaration made on the sample in question. Thereafter, on 03.08.1999, the consent is given by the authority to prosecute the concerned accused, including the present applicant. The respondent no.2complainant has, thereafter, filed the impugned complaint on 19.08.1999, i.e. after the selflife of the sample had expired and therefore, it was stated that the applicant has not got the chance Page 3 of 15 HC-NIC Page 3 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT to request the learned Magistrate to send the sample for reanalysis to the Central Laboratory. It is, therefore, contended that the applicantaccused is deprived of his statutory right of second analysis of the sample in question as per the provisions of Section 24(4) of the Act.
4.3 Learned advocate Mr. Thakkar thereafter submitted that there is no averment in the complaint that the applicant was the incharge and was looking after the day to day affairs of the accused no.3Company. The applicant is joined as an accused merely because the applicant is the Director of accused no.3Company. Thus, in absence of any specific averments in the complaint against the applicant, the learned Magistrate ought not to have issued process against the applicant. It is, therefore, requested that the impugned complaint be quashed.
4.4 Learned advocate Mr. Thakkar has placed reliance upon the following decisions;
(a) Of the Apex Court in the case of State of Haryana v. Unique Farmaid Private Limited reported in 1999 (8) SCC 190.
(b) Of the Apex Court in the case of Northern Mineral Ltd. v. Union of India reported in 2010 (7) SCC 726.
(c) Of the Apex Court in the case of Glaxo Smith Page 4 of 15 HC-NIC Page 4 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT Kline Pharmaceuticals Ltd. v. State of Madhya Pradesh reported in 2011 (13) SCC 722.
(d) Of this Court in the case of State of Gujarat v. Nareshkumar Gordhandas Hotvani reported in 2016 JX (Guj) 106.
(e) Of this Court in the case of Balkrishan Gopiram Goenka v. State of Gujarat reported in 2016 (1) GLR 886.
5. On the other hand, learned APP Mr. N.J. Shah appearing for the complainant has submitted that the ingredients of the alleged offences are made out in the impugned complaint even against the present applicant and therefore, this application may not be entertained. However, learned APP has fairly submitted that the respondent no.2 has filed the complaint on 19.08.1999, i.e. after the selflife of the sample had expired in July 1999. Learned APP is not in a position to dispute the fact that in pursuance to the notice issued by respondent no.2, the present applicant has requested for reanalysis of the sample in question by communication dated 02.02.1999.
6. Having heard learned advocates appearing for the parties and having gone through the material on record, it has emerged that the impugned complaint is filed against six accused, including the present applicant. As per the allegations made in the complaint, the same of "Azadirachtin", manufactured in Page 5 of 15 HC-NIC Page 5 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT August 1997 and having its expiry in July 1999, was collected by the complainant for analysis on 22.09.1998 and as per the Report of the Regional Laboratory, the said insecticide was not found to be of the quality and standard, as provided under the relevant provisions of the Act. However, when the respondent no.2complainant issued the showcause Notice on 22.01.1999, the present applicant requested the complainant that the sample in question be sent for reanalysis to the Central Laboratory vide communication dated 22.02.1999. It is not in dispute that in pursuance to the request made by the applicant, the complainant did not send the sample for reanalysis as per the request made by the applicant. Thereafter, the impugned complaint came to be filed on 19.08.1999. In the meantime, the selflife of the insecticide expired in July 1999.
7. Section 24(4) of the Act, reads as under;
"24. Report of Insecticide Analyst. (4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under subsection (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 subsection (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, Page 6 of 15 HC-NIC Page 6 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT the Director of the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein."
8. In Unique Farmaid Pvt. Ltd.'s case (supra), the Apex Court observed in Paras - 5, 6, 11 & 12 as under;
"5. Section 22 of the Act prescribes procedure to be followed by the Insecticides Inspector when he takes any sample of an insecticide. Sub section (6) of Section 22 is relevant and is as under :
"22. (6) The Insecticide Inspector 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 shall retain the remainder and dispose of the same as follows :
(i) one portion or container, he shall forthwith send to the Insecticide Analyst for test or analysis; and
(ii) the second, he shall produce to the court before which proceedings, if any, are instituted in respect of the insecticide."
6. As to how the report of the Insecticide Analyst is to be considered, reference may be made to Section 24 of the Act which is as under :
"24. Report of insecticide Analyst. (1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test of analysis under subsection (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 Page 7 of 15 HC-NIC Page 7 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT 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 conclusive unless the person from whom the sample was taken has within twentyeight days of the receipt of a copy of the report notified in writing the Insecticide Inspector or the Court before which any proceeding 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 subsection (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 subsection (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 stated therein. (5) The cost of a test or analysis made by the Central Insecticides Laboratory under subsection (4) be paid by the complainant or the accused, as the Court shall direct."
11. Subsection (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 Page 8 of 15 HC-NIC Page 8 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT 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 td., 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 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 subsection (3) of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive Page 9 of 15 HC-NIC Page 9 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT 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."
9. In the case of Northern Mineral Ltd. (supra), the Apex Court observed in Paras - 11 to 13 as under;
"11. 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 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. 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 Page 10 of 15 HC-NIC Page 10 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT conclusive evidence of the facts stated in its report looses its conclusive character. The Legislature has used similar expression i.e. the "intention to adduce evidence in controversion of the report" in both subsection (3) and subsection (4) of Section 24 of the Act, hence both the expression has 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 intention of adducing evidence in controversion of the Insecticide Analyst report clothes the Magistrate the power to send the sample for analysis to the Central Insecticides Laboratory either on its own motion or at the request of the complainant or the accused. In 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 the jurisdiction to send the sample to Central Insecticide Laboratory for analysis and it is not required to state that it intends to get sample analysed from the Central Insecticides Laboratory. True it is that report of the Insecticides Analyst can be challenged on various grounds but accused can not 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 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.
12. The decisions of this Court in the cases of National Organic Chemical Industries Ltd. (Supra), Unique Farmaid (P) Ltd. & Ors. (Supra) and M/s. Gupta Chemicals Pvt. Ltd. (Supra), in our opinion do support Mr. Nehra's contention. True it is that in first two cases, the accused, Page 11 of 15 HC-NIC Page 11 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT besides sending intimation that they intend to adduce evidence in controversion of the report accused persons have specifically demanded for sending the sample for anlaysis 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 accused had intimated its intention to adduce evidence in controversion of the report and that conferred him the right to get sample tested by Central Insecticides Laboratory. The decision of this Court in the case of M/s Gupta Chemicals (supra) is very close to the facts of the present case. In the said case "on receipt of the information about the State Analyst 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". From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.
13. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before 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 Page 12 of 15 HC-NIC Page 12 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT its own motion or at the request of the complainant or the accused. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to Central Insecticides Laboratory. It may be mentioned herein that shelf life of the insecticides had expired even prior to the filing of the complaint. The position therefore which emerges is that by sheer inaction the shelf life of the sample of insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal prosecution against the appellant to continue shall be futile and abuse of the process of Court."
10. This Court also considered similar issue in Nareshkumar Gordhandas Hotvani's case (supra) wherein, the alleged offence was under the provisions of the Prevention of Food Adulteration Act, 1954. This Court after considering various decisions, held in Para14 as under;
"14. Keeping in mind the aforesaid provisions of law and the law laid down by the Hon'ble Supreme Court and this Court, this Court is of the opinion that, in the present case when the complainant Food Inspector has filed the complaint after the expiry of self life of the sample in question, the respondentsaccused have Page 13 of 15 HC-NIC Page 13 of 15 Created On Tue Aug 15 17:36:43 IST 2017 R/CR.MA/15148/2011 JUDGMENT lost their valuable right of sending the sample to the Central Food Laboratory and therefore, the complainant Food Inspector has violated the mandatory provision of the Act. Hence, the Trial Court has not committed any error while discharging the respondentsaccused and therefore, no interference is required in this Revision Application."
11. In view of the aforesaid decisions rendered by the Apex Court as well as by this Court, if the facts of the present case are examined, it can be said that though the applicant has requested on 02.02.1999 in pursuance to the Notice dated 22.01.1999 for sending the sample for reanalysis to the Central Laboratory, the respondent no.2complainant has not sent the same for reanalysis. Even thereafter, the complaint was filed before the learned Magistrate on 13.08.1999 after the selflife of the insecticide had expired in July 1999. Therefore, the present case is squarely covered by the aforesaid decisions. Thus, the present application is required to be allowed only on this ground and therefore, this Court has not gone into other submissions canvassed by learned advocate for the applicant.
12. Accordingly, the application is allowed. The impugned complaint being Criminal Case No.1146 of 1999 pending before the Court of learned J.M.F.C., Idar is quashed and set aside. Rule is made absolute.
(VIPUL M. PANCHOLI, J.)
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Pravin
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