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Shorn of unnecessarily details and stated briefly preceding facts generating instant 482 Cr.P.C. Application are referred thus.

Anil Kumar is the owner of M/s Sisodia Beej Bhandar, Bijnor a licensee firm engaged in the business of insecticides manufactured by M/s Bharat Insecticide Ltd., 1506, Vikram Tower Rajendra Palace, New Delhi (A-2). For sampling purpose Insecticide Inspector Anand Singh Chauhan on 8.12.2004 purchased pesticides chemical isoproturan 75% of Batch No. 411242099 manufactured on 21.11.2004 having it's shelf life till 23.11.2006. Three separate phials of 100 milligram pesticide chemical was prepared and corked, seals were affixed and notice in Form 20 was drawn. On 9.12.2004 vide office memorandum no. 2226, aforesaid pesticide chemical was sent for analysis to Fertilizer and Pesticides Quality Control Laboratory, Alam Bagh, Lucknow, whose report dated 31.12.2004,vide letter no.1967, disclosed that ACI/ALK/FMMA was only 53.42%, which should have been 75% and, therefore, sample was declared misbranded. Aforesaid analysis report was received to complainant insecticide inspector on 10.1.2005 who thereafter issued two notices to the applicants annexed with aforementioned analysis on 8.2.2005 vide office letter no. 2566. Both the seller and the manufacturer company A2 replied said notices on 27.2.2005 and 16.3.2005 and they both expressed their written desire to get the samples retested vide annexure no. 2 to the Application and annexure no. CA-3 to the counter affidavit. Since the applicants had committed offence under Section 29(1)A of Insecticide's Act, sanction for their prosecution was applied before District Magistrate, Bijnor U/S 31(1) of the Act. Exercising power under that provision and in conformity with conferred power vide G.O. No. 10103/(1)/12-5-189/76 dated 19.1.77 District Magistrate accorded sanction on 17.3.2005, and consequently the same day a complaint was filed against the seller and company A2 in the Court of C.J.M., Bijnor being complaint case no. 1208/200,State Vs. Anil Kumar and another. In paragraph 9 of the said complaint, it was specifically averred that M/s Sisodia Beej Bhandar, Bijnor is not satisfied with the report of Fertilizer and Pesticides Quality Control Laboratory, Alam Bagh, Lucknow and have requested for getting the sample retested.

In the present 482 Cr.P.C. Application, a supplementary affidavit has been filed by the applicants and a counter affidavit has also been filed by Sri J.S. Rathore, Insecticide Inspector / Plant Protection Officer, Bijnor on behalf of respondent State. In the aforesaid background, I have heard Sri A.B. Saran, learned Senior Counsel assisted by Sri Kartikey Saran for the applicants and the learned AGA for the State.

Sri Saran castigated continuance of applicant's prosecution on the ground that after being served with the report of Fertilizer and Pesticides Quality Control Laboratory, Lucknow, dated 31.12.2004, which was received to the insecticide inspector on 10.1.2005 that, on 8.2.2005, the seller and the manufacturer company A-2, were issued notices. As is mentioned in paragraph 9 of the complaint seller Anil Kumar expressed his desire for getting the sample retested vide it's letter dated 27.2.2005, prior to launching of prosecution before C.J.M. but pursuant thereto no step was taken by the inspector to get the sample retested and, therefore, the entire prosecution of the applicants deserves to be quashed. Sri Saran, for his aforesaid submissions placed reliance on annexure CA 1 to the counter affidavit where various dates are recorded regarding the entire input materials to contend that sample was dispatched for analysis to the laboratory at Lucknow on 9.12.2004, it was analysed on 31.12.2004 and the report was received on 10.1.2005 by the insecticide inspector. Notice was given to the seller and A2 on 8.2.2005 to which seller replied on 27.2.2005 and A-2, replied it on 16.3.2005. Government Advocate consented for launching a prosecution was obtained on 5.3.2005 and sanction was accorded by the District Magistrate on 17.3.2005 and on that date itself complaint was filed before CJM, Bijnor. Learned Senior Counsel, therefore, submitted that in consonance with Section 24(3) and (4) of the Act, the applicants have performed their part duty and, therefore, their prosecution be quashed, since a valuable right conferred on the accused under the aforesaid sections has been violated by the insecticide inspector. In support of the said contention, applicants' counsel relied upon Apex Court decisions in Northern Mineral Ltd. Vs. Union of India and another 2010 (7) SCC 726, Gupta Chemicals Pvt. Ltd. and others Vs. State of Rajasthan and another 2010 (7) SCC 735, State of Haryana Vs. Unique Farmaid (P) Ltd. and others 1999 (8) SCC 190. He also cited two other decisions of Swasthik Pesticides and Chemicals though Vijay Vs. State of Gujarat:2005 (3) GLR 2027 and Mohinder Singh Chauhan Vs. State of Harayana through Insecticides Inspector: 2004 Cr.LJ 2656. On the strength of the aforesaid decisions and referring to various paragraphs, learned Sr. counsel submitted that case of the applicants is squarely covered by the aforesaid apex court decisions where under entire prosecution of the accused have been quashed for the same reason and, therefore, the same law be applied in the case of the present applicants and their prosecution be also quashed.

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 phials 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 seem 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:-

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: