Punjab-Haryana High Court
M/S Madahar Agro Centre And Another vs State Of Punjab on 9 February, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Revision No. 918 of 2005
Date of Decision : February 09, 2010
M/s Madahar Agro Centre and another
.... Petitioners
Versus
State of Punjab
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. M.K. Singla, Advocate
for the petitioners.
Mr. P.S. Sidhu, Additional Advocate General, Punjab
Mr. Ramneek Vasudeva, Advocate alongwith
Paramjit Singh Sandhu,
the then Chief Agriculture Officer, Sangrur and
Gurcharan Singh Sekhon, (retd.)
the then Insecticide Inspector, Sangrur
T.P.S. MANN, J. (Oral)
The present revision has been filed by the petitioners for challenging the order dated 3.3.2005 passed by Chief Judicial Magistrate, Sangrur whereby notice of accusation under Section 29 of the Insecticide Act for violating the provisions of Sections 13, 13 k(1), 18 of the Insecticides Act and Sections 3, 4 and 6 of the Insecticides (Price, Stock Display and Submission of Reports), Order 1986 was served upon them and two others.
According to the prosecution, on 30.7.2003 at about 5.00 Criminal Revision No. 918 of 2005 -2- P.M., Insecticide Inspector, Sangrur, alongwith his staff, visited the shop of the petitioners and took 750 grams of Cartap Hydrochloride 4%G as sample, with date of expiry as August, 2004. The aforementioned 750 grams of insecticide was made into three equal portions of 250 grams each, and put in three polythene bags. One sample was sent to Insecticide Quality Control Laboratory, Ludhiana, where testing was conducted by its Senior Analyst, who vide his report dated 5.8.2003 concluded that the sample was misbranded because instead of 4% active ingredient, only 0.02% had been found. Consequent upon receipt of the report of the Senior Analyst, Chief Agriculture Officer, Sangrur issued show cause notice to the petitioners firm on 7.8.2003 requiring them to submit its clarification regarding keeping and selling of misbranded insecticide. After receipt of the show cause notice dated 7.8.2003, the petitioners replied that they had kept and sold the insecticide in the same condition in which it was purchased from M/s Malwa Pesticides, Sangrur and, thus, there was no alteration in its contents. In case any action was to be taken, it may be taken either against the distributor, i.e. M/s Malwa Pesticides, Sangrur or its manufacturing company, i.e. M/s Coromandel Agrico Private Limited. The petitioners also did not accept the test report and requested that the sample lying with Chief Agriculture Officer be sent for retesting from Central Quality Control Laboratory. After receiving the reply from the petitioners, Chief Agriculture Officer gave them an opportunity of being heard regarding the misbranded insecticide. However, he declined the Criminal Revision No. 918 of 2005 -3- request regarding retesting of the sample from Central Quality Control Laboratory on the plea that the contents of the sample were very less and, therefore, it was not viable to send the same for retesting.
Complaint No.23 dated 9.3.2004 was then filed by the State of Punjab through Insecticide Inspector, Sangrur against the petitioners and two others, namely, M/s Malwa Pesticides, Sangrur and its proprietor under Section 29 of the Insecticides Act. After being summoned in the complaint and service of summons upon them, the petitioners appeared in the Court of Chief Judicial Magistrate, Sangrur on 4.8.2004 and applied for bail, which was granted to them on that day itself. The petitioners then submitted an application dated 18.8.2004 before Chief Judicial Magistrate, Sangrur for sending the second sample for re-analysis from Central Insecticides Laboratory. The said application came up for consideration on 19.8.2004, when its notice was issued to the complainant for 24.8.2004. The complainant was also directed to bring the second sample on 24.8.2004. On 24.8.2004, learned Chief Judicial Magistrate, Sangrur was on leave as he was availing joining time. The proceedings were, accordingly, adjourned by learned Additional Chief Judicial Magistrate (Duty), Sangrur for 30.8.2004 for further orders. On 30.8.2004, the complainant was not present in the Court. Accordingly, learned Chief Judicial Magistrate, Sangrur issued notice to the complainant to produce the second sample on 4.9.2004. On 4.9.2004, the application filed by the petitioners for sending second Criminal Revision No. 918 of 2005 -4- sample for re-analysis, was taken up for consideration. The Insecticide Inspector was present with the second sample, who also brought to the notice of the Court that as the expiry date of the sample was August, 2004 and the same had expired, it would not serve any purpose to send the second sample for re-analysis. Accordingly, the application filed by the petitioners was disposed of by learned Chief Judicial Magistrate, Sangrur on 4.9.2004 as having become infructuous. Subsequently, as mentioned above, the notice of accusation was served upon the petitioners on 3.3.2005 to which they pleaded not guilty and claimed trial. The said order stands challenged in the present revision.
The present revision came up for hearing before this Court on 5.8.2008 when after going through the background, as explained above, regarding refusal of the Chief Agriculture Officer, Sangrur to send the second sample to the Laboratory for re-analysis on account of inadequate contents of the second sample, this Court observed as under :-
"Strange things have happened. After drawing 750 grams of the insecticide in question as sample, three parcels, each weighing 250 grams, were prepared, out of which one was handed over to the petitioners while other two retained by the complainant in safe custody in the office. One of the two parcels retained in the office was then sent to Insecticide Testing Laboratory, Ludhiana. After the receipt of the report and issuance of Criminal Revision No. 918 of 2005 -5- show cause notice, the petitioners did apply to Chief Agricultural Officer, Sangrur for sending the second sample to the Laboratory for re- analysis. The request of the petitioners, however, was turned down on the ground that the contents of the second sample were inadequate for the purposes of re-analysis. On one hand it has been clearly stated by the complainant in para No.6 of the complaint that three parcels, each weighing 250 grams, were prepared in three dry, neat and clean polythene bags which were tied with the thread and thereafter effectively sealed with the official seal of the complainant and also that it was the official duty of the complainant to receive the samples from whole of the district and keep them in safe custody in his office, on the other, the complainant refused to send the second sample for re-analysis on 25.8.2003 on the ground that the quantity of second sample was inadequate to be sent for re-analysis. It has not been explained anywhere in Annexure P.4 as to how the quantity of the second sample had decreased to such an extent that it was not considered sufficient for re-analysis. In case the complainant's plea of inadequacy of the contents of second parcel for analysis was correct, in that situation the complainant ought to have opposed the plea of the petitioners on 4.9.2004 on that ground and not on the ground that the shelf life was over. It appears that the complainant wrongly rejected the plea of the petitioners on 25.8.2003, Criminal Revision No. 918 of 2005 -6- knowing fully well that the contents of the parcel were intact/inadequate. Instead the sending of the second parcel was intentionally delayed so that the shelf life of the insecticide might be over by the time the complaint was filed and the petitioners got an opportunity to make a request to the court for sending the second sample for analysis."
In view of the above, a direction was issued to Gurcharan Singh Sekhon, the then Insecticide Inspector, Sangrur and Paramjit Singh Sandhu, the then Chief Agriculture Officer, Sangrur to be present in person before this Court so as to explain as to how quantity of the second sample, which was required to be sent for re-analysis, on asking of the petitioners, had decreased on 25.8.2003 so as to be inadequate for the purposes of analysis. Pursuant thereto, the aforementioned Insecticide Inspector and Chief Agriculture Officer have put in appearance and submitted their respective affidavits, which are on record.
It is not denied by Paramjit Singh Sandhu, the then Chief Agriculture Officer in his affidavit dated 8.2.2010 that pursuant to show cause notice issued by him, the petitioners filed their reply and also demanded sending of the second sample for re-testing from Central Insecticides Laboratory. Instead of acceding to the said request of the petitioners, Paramjit Singh Sandhu informed them that as the contents of the sample were very less, it was not viable to send the same for Criminal Revision No. 918 of 2005 -7- retesting. As mentioned above, each of the three samples contained 250 grams Cartap Hydrochloride 4%G. In case the contents of the sample were less than its actual weight, he was nobody to deny sending the second sample for retesting. Duty was cast upon him to accede to the request of the petitioners by sending the second sample for retesting. It would have been for the Central Quality Control Laboratory or Central Insecticides Laboratory to hold, if it was so, that it was not possible to retest the second sample on account of the inadequate contents of the sample.
Paramjit Singh Sandhu, the then Chief Agriculture Officer, Sangrur is present in the Court and states that when he mentioned about the contents of the sample being very less and not viable for retesting, what he meant was that it had already come in the report of the Insecticides Quality Control Laboratory, Ludhiana about the active ingredients to be 0.02% against minimum of 4%. That itself was also no ground to deny the request made by the petitioners for sending the second sample for re-analysis. In view of the analysis report in respect of the first sample conducted by Insecticide Quality Control Laboratory, Ludhiana, the sample was found to be misbranded on account of the fact that it contained active ingredients to the extent of 0.02% only as against minimum of 4%. The analysis of the second sample by Central Insecticides Laboratory/Central Quality Control Laboratory would have either dispelled impression in the mind of the petitioners about the first Criminal Revision No. 918 of 2005 -8- report not being correct or confirmed the conclusions arrived at earlier by the Insecticide Quality Control Laboratory, Ludhiana so as to give pedestal to the complainant for successful prosecution of the petitioners. Apparently, the excuse of active ingredients being less than the prescribed has been coined by Paramjit Singh Sandhu, whereas the factual reason given by him, while declining the request of the petitioners for sending the second sample for re-analysis, was that the contents of the same were inadequate and, therefore, it was not viable to re-test it.
After filing of the complaint, learned Chief Judicial Magistrate, Sangrur vide order dated 22.3.2004 summoned the petitioners and others for facing trial for an offence punishable under Section 29 of the Insecticides Act. Accordingly, they were summoned for 4.6.2004. Despite the same, the summons of the accused were received back unexecuted and vide order dated 4.6.2004, the trial Court issued fresh summons for 31.7.2004. This time again, the summons were received back unexecuted. As per the report made by Constable Avtar Singh No.2529, the summons of petitioner-Gurmail Singh were returned unserved with the report that his shop was lying closed since January, 2004. Complainant Gurcharan Singh, Insecticide Inspector, however, informed the Court that the shop was not closed, rather, it was functional. Accordingly, the trial Court issued dasti summons for effecting service upon the petitioners. The Naib Court was also directed Criminal Revision No. 918 of 2005 -9- to take the assistance of the Insecticide Inspector in getting the service effected for 4.8.2004. The trial Court consciously gave a short date as the Insecticide Inspector stated at the bar that the accused were avoiding service for the reason that the expiry date of the insecticide was nearing and in all probability, it was to expire in the month of August, 2004 and, therefore, the accused may take the plea of not being given an opportunity for getting the second sample tested. Pursuant to the same, Gurmail Singh-petitioner on his own behalf and as proprietor of firm M/s Madahar Agro Centre, Sangrur appeared before the trial Court on 4.8.2004 and moved an application for the grant of bail which was accepted. However, at that time, Gurmail Singh-petitioner did not request the trial Court for sending the second sample for analysis. As two other co-accused remained unserved, fresh summons were issued for 13.8.2004. Once again, the trial Court noted the reason for giving a short date after taking into consideration the shelf life of the second sample of the insecticide. The matter was, however, taken up on 12.8.2004 when Gurmail Singh-petitioner was present in the Court. This time again, fresh summons were issued for 19.8.2004 for service of co-accused of the petitioners but no request was made by Gurmail Singh-petitioner for sending the second sample for analysis. It was for the first time that on 19.8.2004 when an application dated 18.8.2004 was submitted by the petitioners before the trial Court with a request for sending the second sample for analysis from Central Insecticides Laboratory, Faridabad. The trial Court, after entertaining the application Criminal Revision No. 918 of 2005 -10- directed it to be put up with the file. Notice was also issued to the complainant to bring second sample on 24.8.2004. On 24.8.2004, learned Presiding Officer was not holding Court as he was availing joining time. Accordingly, Additional Chief Judicial Magistrate (D), Sangrur directed that the file be put up before the regular Court on 30.8.2004 for further orders. On 30.8.2004, petitioner-Gurmail Singh was present and so also Assistant Public Prosecutor. However, the complainant was not present. Once again, the trial Court issued notice to the complainant for 4.9.2004 with a further direction to produce the second sample on the said date. When the application was taken up on 4.9.2004, Insecticide Inspector along with Assistant Public Prosecutor was present in the Court. Similarly, Gurmail Singh-petitioner was also present. The Insecticide Inspector was carrying the second sample but he brought to the notice of the Court that the shelf life was upto August, 2004 and, therefore, it would not serve any purpose at that stage to send the same for analysis. On the basis of the submissions so made and in view of the fact that the shelf life of the sample stood expired, learned trial Court came to the conclusion that the application filed by the petitioners had become infructuous and the same was, accordingly, disposed of.
The stage when the petitioners appeared before the Chief Agriculture Officer by way of their application wherein they prayed for sending the second sample for testing from Central Quality Control Criminal Revision No. 918 of 2005 -11- Laboratory, when seen in juxtaposition with the stage of the proceedings before the trial Court when, once again, they made an application to the said Court for sending the second sample for testing makes it apparent that a concerted attempt had been made by the petitioners in collusion/connivance with the Chief Agriculture Officer, Sangrur and the then Insecticide Inspector, Sangrur so as to avoid the rigours of the criminal prosecution launched by way of complaint filed against the petitioners and others under Section 29 of the Insecticides Act. To begin with, the Chief Agriculture Officer had no justification to deny the request of the petitioners for sending the second sample for testing and, that too, on flimsy ground of the contents being inadequate for testing. Similarly, after being summoned to appear in the Court, the petitioners saw to it that they delayed making request for testing of the second sample and came up with the application for sending the second sample for testing only on 19.8.2004, knowing fully well that by the end of the said month which was only twelve days away, the shelf life of the insecticide would expire. Petitioner-Gurmail Singh had appeared before learned Chief Judicial Magistrate, Sangrur on 4.8.2004 and he knew that still about four weeks' time was remaining for the shelf life of the insecticide to expire. Despite the same, after putting in appearance, he only moved an application for bail, which was granted. He did not file any application at that time for sending the second sample for testing. Even on 12.8.2004, when he was again present in the Court, he did not come up with any such application so as to seek the testing of the Criminal Revision No. 918 of 2005 -12- second sample. It was only on 19.8.2004 that an application was submitted by the petitioners before learned Chief Judicial Magistrate, Sangrur. The said application was entertained and ordered to be put up with the file. To the ill-luck of the system, learned Presiding Officer was not holding Court on 24.8.2004 as he was availing joining time. Accordingly, the file was put up before Additional Chief Judicial Magistrate(D), Sangrur when counsel for the petitioners was present. In routine, the order was passed by the Court for putting up the application before the regular Court on 30.8.2004 for further orders. Counsel representing the petitioners also did not inform the Court that shelf life of the sample was expiring in a week's time. Even on 30.8.2004, when Gurmail Singh-petitioner as well as Assistant Public Prosecutor were present, presence of Insecticide Inspector was not noticed. Accordingly, learned Chief Judicial Magistrate, Sangrur issued notice to the complainant to produce the second sample on 4.9.2004. Before 4.9.2004 could arrive, the shelf life of the insecticide expired on 31.8.2004. The petitioners, by way of the present revision, have tried to take benefit of the fact that despite their making request, first to the Chief Agriculture Officer and then before Chief Judicial Magistrate, Sangrur, their request for sending second sample for testing was not accepted, therefore, the complaint under Section 29 of the Insecticides Act cannot be proceeded and, accordingly, they be discharged from the case.
Keeping in view the aforementioned facts, this Court is of Criminal Revision No. 918 of 2005 -13- the view that the matter requires a thorough probe by the Department of Vigilance, Punjab to find out as to whether there was any nexus between the petitioners on the one hand and the authorities under the Insecticides Act on the other so as to first deny the request of the petitioners for sending the second sample for testing on flimsy grounds and, thereafter, colluding and conniving with the other by delaying the decision of the application submitted by the petitioners to Chief Judicial Magistrate, Sangrur for sending the second sample for testing knowing fully well that by the time such application would be considered and disposed of there would be either paucity of time for testing of the second sample or shelf life of the insecticide itself would expire.
Let a copy of the order be sent to Chief Secretary, Department of Vigilance, Punjab with a request for holding a thorough probe, as mentioned above, and to make a report within three months from today.
The matter be put up after receipt of the report.
A certified copy of the, order under the signatures of Special Secretary of the Court, be handed over to learned State counsel for passing of necessary information.
(T.P.S.MANN)
February 09, 2010 JUDGE
satish