Document Fragment View

Matching Fragments

2. The petitioner-orig.accused No. 2 (hereinafter referred to as 'the accused-company') is a registered company under the Companies' Act, 1956, involved in manufacturing insecticides. It is contended by the petitioner-accused that the accused-company also possesses ISO-9001 certificate having its registered office at New Delhi. The accused-company is also having various sales and marketing offices in various parts of India and one of such offices is located in the City of Ahmedabad. The accused-company is manufacturing insecticides/pesticides including Endosalfan-35% EC. The accused-company was served with a show cause notice on 20th September, 2001 because a sample of Endosalfan drawn by the Inspector, sent for test/analysis, was found misbranded. Immediately, on receipt of the notice, as averred was responded by the accused-company contesting the report of analyst and expressed its intention to get the sample retested/reanalysed at their own costs as per the provisions of Section 24(3) of the Act, within stipulated period of 28 days to the complainant as per the Act. The say of the petitioner is that despite a request having been made by the said application, no sample was sent to the Central Insecticide Laboratory for (short 'CIL'). The grievance of the petitioner is that it was obligatory on the part of the complainant to send the sample or to make necessary arrangement, if required, to see that the sample is retested by the CIL even then he straight way filed a complaint on 18th December, 2001. It is not a matter of dispute that shelf life of the product from which the sample was drawn, was to expire in the month of June, 2003. As the accused-company was not permitted to exercise its right envisaged under Section 24(3) of the Act, the prosecution instituted by the complaint cannot sustain and the same, therefore, requires termination. The accused-company has, therefore, applied for dismissal of the complaint and according discharged the accused-company from the prosecution vide Application Exh.18 on 6th February, 2004. The ld.Chief Judicial Magistrate after hearing the learned counsel representing the accused-company dismissing the application and rejecting the request for discharge and for dropping of proceedings vide order dated 27th October, 2004 and this order is under challenge before this Court by way of present petition.

9. This decision is also found relevant in view of the facts of the present case. It is open for the accused-company to ask for retest of the part of sample by making a request either to the Inspector or to the Court. The accused-company has option to make the request to the Inspector or the Court. Undisputedly, in the present case, the request was made by the accused-company to the complainant.

10. It would be wrong to interpret that manufacturer is not entitled to request the complainant or to the person who has drawn the sample to send the sample for retest to CIL and he is supposed to approach the Court and the Court only and if the Court desires then at the cost of the manufacturer only, the sample can be sent for retest. The Rajasthan High Court in the case of Mohan Lal v. State of Rajasthan, reported in 2000 Cr.L.J. 2623, has observed that :

"4. I have considered the above arguments. The relevant facts are that Shri Dinesh Chandra, Insecticides Inspector took a sample of Methyl Parathion 2% Dust on 29.11.1990 from M/s. Kraya Vikraya Sahakari Samiti, Rawatsar, of which petitioner Mohan Lal was Genral Manager. After sealing the samples in accordance with the rules, he sent one sample to Insecticides Analyst, who vide report dated 31.1.1991, opined that Methyl Parathion 2% Dust was misbranded. The Inspector thereupon sent a notice to the petitioner on 4.2.1991. The petitioner made a request for retesting of the sample by the Central Laboratory vide his letter dated 18.2.1991 but it was not done. The Insecticides Inspector, after obtaining sanction for prosecution, filed a criminal complaint in the Court of the Magistrate on 23.10.1991, whereupon summons were issued to the petitioner. The petitioner put in appearance in the Court on 20.4.1992. He moved an application for getting the sample tested on 27.4.1992. The application of the petitioner for retesting of the sample by the Central Laboratory was rejected on the ground that the shelf life of the sample was going to end in April, 1992 itself. Thereafter, the petitioner made an application for dropping the proceedings against him, which was rejected by the impugned order."

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 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, ld. APP, Ms. N.V. Joshi, on instructs submits that according to the complainant he was not under obligation to send the sample for reanalysis 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 reanalysis 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 reanalysis 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 found 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 :