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(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."

Perusal of the aforesaid section ordains that if an inspector draws a sample and sent it for retesting to insecticide analyst then report of the insecticide analyst shall be conclusive proof of the facts contained therein unless the same is challenged by the person from whom sample was drawn within twenty eight days of the receipt of the copy of the insecticide analyst report by making an application in writing indicating such an intention therefor. This accused can do by making an application in writing either to the insecticide inspector or to the court. Besides expressing his intention to get the sample retested he is not required to do anything further. In the present case, it has not been disputed that so far as this right is concerned, the applicants did exercise it on 29.3.2005 vide Annexure No.2. According to the applicants' contention, this was sufficient for the applicants to observe and nothing more is expected from them to do. However, learned AGA contended that no application was made to the court by the accused to send sample for retesting to the Central Insecticide Laboratory in accordance with section 24(4)and,therefore, the accused cannot avail any benefit of the same. He submitted that it was for the accused to lead evidence in contraversion of insecticide analyst report and, since retesting right is vested in the accused, it is he who has to take adequate measures in that respect. Learned AGA submitted that responsibility to bring on record the material and evidences favourable to the accused cannot be saddled on the shoulders of the prosecution and, therefore, section24 (4) should also be observed by the applicants and since that having not been done, the applicants cannot gain any benefit under section 24 of the Act.

The argument so advanced by learned AGA is attractive but in real analysis seems to be devoid of merits and conversely, contention of learned Senior Counsel for the applicants carry much substance with great force. Under section 24 (3), if the accused in writing shows his inclination to get the sample retested by sending it to Central Insecticide Laboratory, then the court has no option but to send it for retesting. Once the accused express his intention in writing to the insecticide inspector, it was his (insecticide inspector's) duty to inform the court about the same and request him to send the sample to retesting. In the present case court was not made aware of the said fact by the insecticide inspector at any point of time.Section 24 (4) lays down that if an accused notifies his intention of adducing evidence in-controversion of the insecticide analyst's report, the court on its own motion or in its discretion at the request of either the complainant or the accused caused the sample of the insecticide produced before the Magistrate under Sub Section (6) of Section 22 to be dispatched for test and analysis to the Central Insecticide Laboratory. The laboratory is required to furnish it's report in writing duly signed by and under the authority of the Director, Central Insecticide Laboratory within a period of 30 days. What then is required from an accused/ person from whom sample has been taken to be performed under section 24 (4) is only to intimate in writing his intention to insecticide inspector or to the court to get the sample retested from Central Insecticide Laboratory. If he sends such a written intimation showing his intention he has observed his part of duty and nothing more is required from him under the Act. Thereafter, it is the duty of the court to cause sample of the insecticide produced before it under section 24 (6) and dispatch it to Central Insecticide Laboratory for re testing. On the facts in hand court could have done that only when insecticide inspector would have informed it about exercise of right by the applicants under section 24 (3), which admittedly has not been done. Learned AGA's contention therefore is unappealing and bereft of merits and therefore cannot be accepted as neither sub-section (3) nor sub-section (4), separately or jointly, provides for such an eventuality. None of the two sub sections require repeated exercise by the accused or from the person from whom sample has been taken to submit request for retesting again before the court after already making it before inspector who has drawn the sample. Once a written intention for re analysis has been forwarded either to the court or to the inspector repeat exercise for the same is not required in either section 24(3) or 24(4) of Act. The only rider attached with right of retesting is that the sample should not have been earlier tested by Central Insecticide Laboratory. Opening language of section 24(4) makes it very clear. If the accused shows his intention of adducing rebuttal evidence, then, under sub-section (4) of section 24, the court either on it's own motion or in its discretion on the request either of the complainant or the accused may direct for production of second sample before it and then send it for retesting. At this juncture, to obliterate hazy grey area, it is pointed out that samples are drawn and kept in three separate phials. One of the phial is given to the accused and the other two are kept with the insecticide inspector. Out of two phials kept with the insecticide inspector, one phial is send for testing to the insecticide analysis and one phial is kept intact with the insecticide inspector to be utilized at any subsequent stage for retesting. In such procedural act, what sub-section (4) provides is that if the accused intends to challenge insecticide analyst report then the court may in its discretion direct either the accused or the complainant insecticide inspector to produce before it the phial of samples kept with either of them. Language of section 24(4) does not seems to admit any other exposition. In support of above view, I am fortified by the decision of the Apex Court in Northern Mineral Ltd. Vs. Union of India and another: (2010) 7 SCC726. In the aforesaid case, Insecticide Inspector had drawn the sample of Monocrotophos 36 SL from M/s Jindal Traders, who was the dealer of Company Northern Mineral Ltd. On being tested by Regional Pesticides Testing Laboratory, Chandigarh, sample was found misbranded not conforming to ISI specifications. A show cause notice intimating Regional Pesticides Laboratory report was issued to the accused on 1.11.1993 which was received to Northern Mineral Ltd. on 3.11.1993. Vide it's letter dated 17.11.1993, Northern Mineral Limited replied the notice expressing it's intention of adducing evidence in controversion of the report. It also pleaded defence of said report being of no consequence. The shelf life of the insecticide expired in February, 1994. Since the accused were denied right to get the sample retested, they moved an application for discharge U/S 245 of the Code but their prayer was rejected on 13.11.1999 and challenge to the same in criminal revision no. 170 of 2000, before the High Court also was in vain as revision too was dismissed on 5.11.2010 and consequently the matter was taken up to the apex court. The gravamen of appellant's submissions is mentioned in paragraph 12 of the said decision. Analyzing the entire conspectus in respect of that submission, the Apex Court has been pleased to hold as under:-

Further, observation by the Apex Court in paragraph 24, supra, is of utmost important wherein it has been observed that the appellant did whatever was possible for it but it's right has been defeated by not sending the sample for analysis and report to the Central Insecticide Laboratory. In paragraph 25, the Apex Court took the view that since within the existence of the shelf life, the right of the accused has been denied, continuance of his prosecution will be a futile exercise and abuse of the process of the court. The aforesaid decision squarely covers present case as it is clear from the notice annexure no.1, that shelf life of the pesticide was till 27.12.2005 and much before that date, on 29.3.2005 itself, applicants have applied for retesting and had shown their intention to lead evidence in convtroversion. During this period of eight months, no step was taken by the insecticide inspector to get the sample retested nor the court did anything in that respect. In such a view, inaction on the part of the insecticide inspector cannot be condoned as it offends the most valuable right conferred on the accused by a statutory provision.

12. It is true that in the above cited decision on facts of the High Court found that the accused had not received any intimation about filing of the complaint before the expiry of the self-life of the sample. In the present case, though the complaint is filed well in time but as provided under the scheme the present petitioner had already intimated to the complainant that the accused-company would like to have the sample retested by the CIL. On the day of hearing, the complainant had remind present and in response to the query raised by the court, Id. APP, Ms. N.V. Joshi, on instructs submits that according to the complainant he was not under obligation to send the sample for re-analysis as it was not drawn from the petitioner-accused nor was obligatory to have the wish / desire of the accused-company so that the court can send second part of the sample for re-analysis before issuing process. In such a situation, to avoid abuse of process of law or unwarranted litigation, it is open for the court to send the second sample for retesting if any of the parties is found to have expressed his wish/ desire to have the sample retested. By passing a specific order, on the point as to who will bear the cost of such re-analysis or retest by the CIL and the party put under obligation to pay the costs fails to deposit the amount, then the court may not forward sample for retest to CIL. In the present case, it is submitted by Mr. Sharma that the day on which the complaint was filed, a portion of the sample kept by the complainant was tendered to the court but ultimately, an endorsement on muddamal list reveals that only list was tendered to the court and the sample was retained by the complainant. The said endorsement reads as under: