D. Lahoti vs State

Pratap Sing, J.—First accused in C.C.No.1544 of 1990 on the file of the Judicial Magistrate-II, Srivilliputhur has filed this petition u/s. 482

of the Code of Criminal Procedure praying to call for the records in the above case and to quash the same.

Short facts are: The respondent has filed the complaint against three persons, out of whom the petitioner herein is the first accused for an offence

punishable u/s. 29(l)(a)(i) of the Insecticides Act, 1968 (which I shall hereinafter refer to as ''the Act''). The allegations in it are briefly as follows:

The complainant is an agricultural officer and insecticide officer, as per Section 21-A of the Act. First accused is the manufacturer of chemicals,

insecticides, pesticides, etc. Second accused is the distributor and third accused is the dealer. On 17.4.1990, the complaint inspected the premises

of the third accused and after observing all the formalities mentioned in the Act took samples of phosphomidan 85% SL for the purpose of

analysis. The said homogenous sample of Phosphomidan 85% SL was assigned with the Lab No. 135 and on chemical analysis, the sample was

found to be ""misbranded"" in respect of net content of the sample. As per Section 29(l)(a)(i) of the Act, whoever imports, manufactures, sells or

exhibits for sale or distributes any insecticide deemed to be misbranded shall be punishable. Explanations were called for from all the accused.

Their explanations were found not satisfactory. Hence, the complaint.

Mr.R.Ramachandran, learned counsel appearing for the petitioner, would submit that the charge of misbranding is in respect of net weight of the

sample package, that according to the label, the net weight should be 250 m.1. whereas it was 262 m.1. that excess weight cannot be considered

as misbranded falling u/s. 3(k)(i) of the Act. I have heard .Mr.S.Somasundaram, learned Government Advocate appearing for the respondent, on

the above aspects.

I have carefully considered the submissions made by learned counsel on both sides. The question that falls for consideration is whether if the net

weight of the package was more than the weight mentioned in the label, it would come within the clause of "" mis-branded "" falling u/s. 3(k)(i) of the

Act. In the instant case, the sample was taken from the shop of the third accused and it was sent for chemical analysis by the Insecticide Analyst.

In his report, Insecticide Analyst has given the result of analysis. The second finding under the heading ""results of analysis"" reads as follows:

Net content of the sample is 262 m.1. against 250 m.1. as declared on container label.

It will be relevant to extract the relevant portion of the complaint. In paragraph 5 it is stated in '' the complaint as follows:

As per Sec. 29(l)(a)(i) of the Insecticides Act, 1968, whoever imports, manufactures, sells or exhibits for sale or distributes any insecticide

deemed to be misbranded shall be punishable.

In paragraph 4 of the complaint it is stated as follows:

The said homogenous sample of Phosphomidan 85% SL was assigned with the Lab No. as 135 and upon chemical analysis, the sample was found

to be ""misbranded"" in respect of net content of the sample."" (''Emphasis supplied.'')

Section 3 (k)(i) of the Act reads as follows:

''misbranded'' - an insecticide shall be deemed to be misbranded-if its label contains any statement, design or graphic representation relating there

to which is false or misleading in any material particular, or if its package is otherwise deceptive in respect of its contacts;

According to the prosecution since because, the net weight of the container was more than the net weight stated in the label, it is misbranded

falling within Section 3(k)(i) of the Act.

Learned counsel for the petitioner had relied upon the decision in Bharat Pulverising Mills Limited Madras Vs. The Joint Director of Agriculture

(Inputs), Madras and another, in which Bakthavatsalam, J. and held that a reading of the provisions of the Act and the Rules framed there under

clearly show that the Insecticide Analyst has no jurisdiction to go into the question whether the net volume, as noted on the label is contained in the

container, that the Insecticide Analyst is not empowered to test the volume and he cannot go into the question whether the content in the container

contains 250 m.1., as noted in the label. Just because the container in this case is found to have contained only the contents of 238 m.1., it cannot

be said that the material was substandard due to volume. Learned Judge has further stated that the. material cannot be said to be substandard due

to volume. Taking that view of the matter, learned Judge has set aside the impugned order in that case. I am in total agreement with the view of the

learned Judge. The ratio of that ruling is clearly applicable to this case. While so, simply because the net weight was more than the net weight

declared in the container, it cannot be classified as misbranded. Consequently, the prosecution will have to fail.

In the result, this petition is allowed and all further proceedings in C.C.No.1544 of 1990 on the file of the Judicial Magistrate-II, Srivilliputhur

shall stand quashed.