Amarjit Singh vs State of Punjab

V.S. Aggarwal, J.

By this common judgment Criminal Misc. Nos. 6876M of 1994, 5515M of 1993, 1396M of 1993, 4921M of 1998, 8749M of 1993, 8626M of 1993 can be disposed of together. For the sake of convenience the facts of Criminal Misc. No. 6876M 1994 can be mentioned.

On 11.6.1991 Rajinder Paul, Inspector had taken a sample of pesticide Butachlor 50% EC from the shop of Grewal Kheti Sewa Centre, Doraha Mandi, District Ludhiana. The same had been manufactured by M/s. Bharat Pesticides Ltd. It was supplied thorough M/s. Dhanda Traders (Distributor). The total quantity of 1000 of pesticide Butachlor 50% EC was present. The date of manufacturing was May, 1991 and the shelf life was to expire in April, 1993. The Insecticide Quality Control Laboratory, Ludhiana on analysis declared the sample to be misbranded. A show cause notice was issued by the Chief Agricultural Officer to Bharat Pesticides Manufacturing Co. Ltd. A reply was sent by M/s. Bharat Pesticides Ltd. on 17.7.1991 challenging the report of the Insecticides Quality Control Laboratory. It was prayed that sample be sent for reanalysis to the Central Insecticides Laboratory. On 2.12.1992 the Additional Director, Agriculture (Plant Protection) gave written consent under Section 31(i) of the Insecticides Act. On 8.4.1993 a criminal complaint was filed against the petitioners.

The petitioners challenge the complaint and the subsequent proceedings alleging that the shelf life of the product had expired on 30.4.1993. The criminal complaint was filed on 8.4.1993 and the summons were only issued on 10.5.1993 i.e. after the shelf life had expired. It was also contended that there was no occasion for sending the sample to the Central Insecticides Laboratory. Even the sanction to prosecute was without any application of mind and in any case the petitioners could not be prosecuted.

In the reply filed, the petition has been contested. It has been contended that complaint was filed on 10.2.1993. The complaint was not filed against petitioner No. 4. It is insisted that the complaint had been filed well within time. There was no occasion that at the behest of the petitioners, the sample should have been sent to the Central Insecticides Laboratory. The sanction was also defended to be valid qua the petitioners.

Similar question arises in the abovesaid other petitions namely in Criminal Misc. No. 8749M of 1993. There is no sanction specifically against petitioner Dinesh Kumar. In Criminal Misc. No. 8626M of 1993 also, the shelf life had expired before the petitioner could appear in Court. Similar was the position in Criminal Misc. No. 4921M of 1993. In Criminal Misc. No. 1396M of 1993 the sanction had been given after the expiry of the shelf life and lastly in Crl. Misc. No. 5515M of 1993 by the time the petitioner knew about filing of the complaint, the shelf life had expired.

To appreciate the question in controversy reference can well be made to the relevant provisions of the Insecticides Act, 1968. Section 22 of the Act prescribes the procedure to be followed by the Insecticides Inspectors in taking of the samples. Section 24 of the said Act reads :

"24. Report of Insecticide Analyst. (1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or 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 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 proceedings 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) shall be paid by the complainant or the accused, as the Court shall direct."

The reading of the above said provisions leaves no doubt that under sub section (4) of Section 24 of the Act, where the sample has not been tested in the Central Insecticides Laboratory, the Court on its own motion or in its discretion on the request of the complainant or the accused can cause the sample to be produced and sent to the Central Insecticides Laboratory. The report of the Central Insecticides Laboratory would be final and conclusive. Corelated with the same are the provisions pertaining to the sanction. Section 31 of the Act bars the Court from taking cognizance except with the written consent of the State Government or a person authorised in this behalf by the State Government. The purpose of enacting the provisions is clear. This is to ensure that there is no unnecessary harassment and the State Government or the authorized person applies its/his mind before a prosecution can be launched against any accused. The sanction or the written consent to prosecute is, thus, like a watchman standing between the accused and the Court. If there is no sanction or consent to prosecute, the Court necessarily will refuse to take cognizance or proceed with the trial.

Taking up the first question as to the effect of delayed filing of the complaints, sanctions or service of the accused i.e. when the shelf life had expired, it is apparent what had been stated above that a statutory right has been conferred on the complainant or the accused to request for the second sample to be sent to the Central Insecticides Laboratory. This is a valuable right. Once the shelf life had expired, the right would be lost. It causes prejudice to the accused. The scope of subsection (4) of Section 24 of the Insecticides Act has been considered by the Supreme Court in the case of State of Punjab v. National Organic Chemical Industries Ltd., JT 1996(10) SC 480. The Supreme court held that complaint should be lodged with utmost promptness without loss of time. It was observed :

"At that stage, two options are open to the accused. The accused is entitled to have one copy of the sample entrusted to him to have it notified to the Court for proving to be contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the Court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under subsection (3) of Section 24. The other option is, after the complaint is laid in the Court, the copy of the sample that is lodged with the Court by the Insecticides Inspector, would be requested to be sent by the Court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, consent and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court."

The same question had been considered by this court in number of judgments. In the case of M/s. Charan Singh and Co. and others v. State of Punjab, 1996(3) RCR 117 the complaint was filed after the shelf life of the insecticide had expired. The proceedings were quashed. No different was the view expressed by this Court in the case of Ravi Kant v. State of Punjab, 1996(3) RCR 714. Herein also the complaint was filed after the shelf life had expired. It was held :

"In the present case, it is not disputed that the manufacturing date of the insecticide in question was June 1989 and expiry date November 1990. It is also not disputed that the impugned complaint was filed on August 29, 1991 after the expiry of the shelf life of the said insecticide. The necessary consequence is that if the complaint itself has been filed in a Court after the expiry of the shelf life of the insecticide, it will be taken that the accused has been debarred of his valuable right to get the counter sample retested, because due to the expiry of the shelf life of the insecticide, its ingredients are bound to deteriorate or become less active. Service of notice regarding the sample having been found misbranded before the expiry of the date of the shelf life of the insecticide, thus, is of no consequence. In these circumstances, the filing of the complaint after the expiry of the shelf life, is fatal to the complaint. This view finds affirmation in Bhai Manjit Singh, Managing Director, Montari Industries Ltd. v. State of Punjab, 1992(1) RCR 244 , M/s. Dwarka Dass Sham Lal v. State of Punjab, 1993(3) RCR 583, and Mewa Singh''s case (supra). Therefore, I have no hesitation in holding that by filing the complaint after the expiry of the shelf life of the insecticide in question, the petitioner has been deprived of his valuable right conferred by Section 24(4) of the Act, which in itself is fatal to the complaint."

As has been noticed in the resume of the facts, once the complaint is filed after the shelf life had expired or it is just filed after few days before the expiry of the shelf life and by the time the accused are served, the shelf life had expired, indeed the right enshrined in subsection (4) of Section 24 of the Act is lost. It causes prejudice and, therefore, on this ground the complaint necessarily has to be quashed.

As regards the permission to prosecute contemplated under Section 31 of the Insecticides Act is concerned, reference has already been made to Section 31 of the Act. Under Section 33 of the Insecticides Act, when an offence is committed by a company, then every person who at the time the offence was committed, was incharge of or was responsible to the company for the conduct of the business, the company shall be liable to be proceeded. It is crystal clear from perusal of subsection (1) of Section 33 that merely being an employee does not make the person liable to be prosecuted. He is to be incharge of or responsible to the company for the conduct of the business of the company. While granting sanction to prosecute, the fact had to be brought to the notice of the authority. He may grant permission to prosecute that person or not. Therefore, permission has to be obtained separately against that person. It there is no permission that has been obtained against the individual employee or the partner as the case would be, then he cannot be prosecuted.

Reference to some of the precedents in this regard would be advantageous. In the case of Manjit Singh v. State of Punjab, 1994(1) RCR 650 when sanction to prosecute had been obtained, the name of accused Manjit Singh had not been given. the proceedings qua him were quashed. In paragraph 7 this Court held :

"A perusal of these provisions shows that a Court cannot take cognizance of the offence under the Act except when a proper sanction is granted by the State Government or a person authorised in this behalf by the State Government. For a sanction to be valid, it must be established that is was given in respect of the facts constituting the offence with which the accused is proposed to be charged and it is desirable that the facts should be mentioned in the sanction. In the instant case a photostat copy of the sanction is Annexure P3 which is on cyclostyled form. Only names of the dealer, distributor and manufacturer firms are inserted and even the names of the persons incharge of the business of these firms were not mentioned. No sanction was granted for the prosecution of any of the petitioners. It even did not disclose the name of the Insecticide Inspector who took the sample nor the date on which the sample was taken and how the sample was found to be misbranded. Since these particulars are not given in the sanction Annexure P3, it cannot be said that person authorised by the state Government to grant sanction fully applied his mind and consented to the prosecution of the petitioners after his full satisfaction regarding commission of the offence by them."

Same question again arose before this Court in the case of Gian Chand v. State of Punjab, 1994(2) RCR 114 and the findings were identical. No different was the view in the cse of M/s. Sat Paul Rajender Parshad Sunam v. State of Punjab, 1995(1) RCR 245. In paragraph 3 while considering a similar argument, this Court observed :

"I have heard the learned counsel for the parties and have gone through the complaint as well as the written consent/sanction order attached with the petition. Subsection (1) of Section 31 of the Act clearly mandates that no persecution for an offence under this Act shall be instituted except by or with the written consent of the State Government or person authorised in this behalf by the State Government. The written consent/sanction under Section 31(1) of the Act has been reproduced above and has also been annexed as Annexure P3 with the petition. A reading of consent/sanction order Annexure P3 reveals that the consent/sanction is not against Hilter Kumar and Sunil Kumar. The name of Sunil Kumar is not mentioned in the complaint and the name of Hitler Kumar is mentioned in the complaint only in reference to the seizure of the sample in his presence. It is not stated in the complaint as to whether he was incharge of or was responsible to the said firm for the conduct of its business."

Same was the view of this Court in the case of K.G. Pappu and another v. State of Punjab, 1996(1) RCR 795 and in the case of M/s. S.N. Chemical Industries and others v. State of Punjab, 1996(1) RCR 399. Criminal Misc. No. 3855M of 1993, decided on 11.9.1995.

There is no reason to take a different view. The sanction has not been obtained against the petitioners in any case. Taking the example, in Criminal Misc. No. 6876M of 1994 the sanction order indicates that :

"I, Prem Singh, Additional Director Agriculture (Plant Protection) give my consent/sanction to Balwant Singh Insecticides Inspector Talwandi Rai, Block Sudhar to initiate action against the following :

M/s. Grewal Kheti Sewa Centre, Rly. Road, Doraha

Dhanda Traders, Grain Market, Doraha (Distributors)

M/s. Pesticides Com. a unit of Bharat Insecticides Ltd., New Delhi (Manu.).

Sd/ Prem Singh

2.12.92."

It is clear that no sanction for prosecution against the petitioner had been accorded. He could not, thus, be arrayed as an accused or so prosecuted.

For these reasons, the petitions are allowed and the complaints and the proceedings pending against the petitioners in the trial Court are quashed.

At this stage one cannot refrain but to notice that invariably complaints are filed after the shelf life had expired. At times sanction had been granted after an inordinate delay resulting in the same mischief. Even complaints are filed on many occasions just a few days before the shelf life is to expire. The possibility of intentionally so doing cannot be ruled out. It is directed that the Secretary Health of both the States of Punjab and Haryana will look into all such complaints that have been filed in the last 5 years either himself or through a senior officer. The responsibility can be fixed on the individual responsible for the delay. A report in this regard be sent to the Registrar of this Court within six months.