Bhagwan Trading Company vs State of Punjab

V.S. Aggarwal, J.

Petitioner is the proprietor of M/s Bhagwan Trading Company, Delhi. He is carrying on the business and forward agent of M/s K.P. Industries, Madras who are manufacturing insecticides products. By virtue of the present petition, petitioner seeks quashing of the complaint and subsequent proceedings against him filed under the Insecticides Act and the Essential Commodities Act.

It is alleged that one Inspector Amarjit Lal visited the premises of one of the authorised dealer of M/s K.P. Industries, Madras, namely M/s Kheti Seba Centre, Bajewala, Mansa which held a valid licence from the Chief Agricultural Officer. A sample of Quinalophos 25% EC was taken from the premises of the dealer. The sample pertained to batch No. 403. The date of manufacturing was May, 1995 and the expiry date was April, 1996. The sample was sent to the State Insecticides Laboratory, Bathinda and was found to be misbranded. On the instructions of manufacturing company Madras, out of the stock lying with the petitioner, a sample was sent to Sri Ram Institute of Industrial Research, New Delhi. It was reported that it conformed to the specifications. In any case after the report was received, act complaint was filed in the court of Additional Sessions Judge, Mansa. The petitioner has since been summoned.

It is claimed that the complaint and the subsequent proceedings qua the petitioner are liable to be quashed because the report of the Public Analyst was never served on the petitioner. He lost his right to get the sample re tested. Plea has also been raised that there was no allegation in the complaint that the petitioner was incharge of or was responsible to the company for conduct of the business of the company. He was not in any case in a position to know the contents. On these basic grounds the said petition referred to above seeking quashing of the complaint has been filed.

In the reply filed, the petition has been contested. It is contended that the question in controversy can be decided on evidence and this court should not interfere. It is denied that any prejudice is caused to the petitioner or that the complaint is liable to be quashed on the grounds taken.

At the time of arguments, number of grounds were pleaded and raised in support of the contentions. But the petition is liable to be allowed on the short ground that by the time the petitioner was served, the shelf life of the product had expired and that he lost a valuable right to get the sample re analysed from the Central Insecticides Laboratory.

Subsections (3) and (4) of Section 24 of the Insecticides Act, 1968 read as under :

"(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 the 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."

A glance at the said provisions would show that if the sample has not been already reanalysed in the Central Insecticides Laboratory, the Court may on its own motion or at the request of the accused or the complainant, may send the other sample to the Central Insecticides Laboratory for analysis. The said report shall be conclusive. This right is not an idle formality but a valuable right. The Supreme Court considered this right under Subsection (4) of Section 24 of the Insecticides Act in the recent decision in the case of State of Punjab v. National Organic Chemical Industries Ltd., JT 1996(10) SC 480. It was insisted that complaint should be lodged with most promptness so that right under Section 24 of that Act may not be lost. The Supreme Court thereafter held :

"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, 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, contents and facts state therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court."

In this process it was concluded that if any such right is lost, the proceedings as such cannot continue. The same question had been considered by the Rajasthan High Court in the case Hindustan Ciba Geigy Ltd. and others v. Sate of rajasthan and others, 1995 Crl. L.J. 618. In the cited case the criminal complaint was filed after the shelf life of the product had expired. Keeping in view subsection (4) of Section 24 referred to above, the proceedings were quashed.

This Court in number of judgments has also taken the same view. In the case of M/s Charan Singh and Co. and others v. State of Punjab, 1996(3) Recent CR 117 , the challan had been submitted in court after the shelf life of the insecticide had expired. The proceedings were quashed. Same view prevailed in the decision in the case of Ravi Kant v. State of Punjab, 1996(3) Recent CR 714. The facts were identical. The complaint was filed after the shelf life had expired. It was concluded :

"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 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 re tested, 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) Recent Criminal Reports 244 , >M/s. Dwarka Dass Sham Lal v. State of Punjab, 1993(3) Recent Criminal Reports 583 , and Mewa Singh''s (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 is itself is fatal to the complaint."

The subsequent decision in the case of M/s. Singh Kheti Store, Chogawan (Amritsar) v. State of Punjab, 1996(3) Recent CR 854 is on the same lines.

Reverting back to the facts of the present case, it is clear that the shelf life expired in April, 1996. Annexure P.4 is the copy of the notice which shows that petitioner was only served on 12.5.1996. The shelf life of the product had already expired. The petitioner could not get the second sample tested from the Central Insecticide Laboratory. Right of Subsection (4) of Section 24 of the Act was lost. Once the valuable right was lost to the petitioner, he has a grievance to claim that prejudice has been caused.

On behalf of the State it had been urged that the trial should be allowed to proceed and proceedings should not be quashed. But in the peculiar facts when on admitted facts, it is clear that statutory provisions qua the petitioner have been violated, no useful purpose would be served in insisting the petitioner to face the trial. It would be an abuse of the process of the Court. Accordingly, the petition must be allowed.

For the reasons given above, the proceedings qua the petitioner pending in the trial court are quashed.