Dinesh Kumar vs State of Punjab

K.K. Srivastava, J.

This is a petition filed under Section 482 Cr.P.C. praying for quashing of the complaint pending in the Court of Chief Judicial Magistrate, Amritsar, copy Annexure P1, under section 3(k)(i), read with Section 17(1)(a) of the Insecticides Act, 1968 (hereinafter to be referred as "the Insecticides Act").

The Insecticide Inspector, Amritsar inspected the premises of the petitioner M/s Prince Kheti Store on 4.12.1995 in the presence of Shri Gurdev Singh, Agriculture Officer and purchased an insecticide 2,4D Ethyl Ester 34%, Batch No. R102, with manufacturing date as November 1995 and expiry date as October, 1997. Out of the sample drawn, one sample was sent to the Insecticides Testing Laboratory for testing. As per report of the Insecticides Testing Laboratory dated 22.12.1995, the said insecticide was found misbranded. A show cause notice was issued to the dealer, supplier as well as the manufacturer. The show cause notice issued to M/s. Somanil Chemicals was served on 12.1.1996 and a reply dated 22.1.1996 was sent to the said show cause notice by the General Manager of M/s. Somanil Chemicals, seeking the other sample to be sent for testing to the referral Laboratory. It is alleged that the sample was not sent to the said laboratory and the complaint was filed after the expiry of the shelflife of the insecticide in question. The petitioner has, it is contended, thus been deprived of a valuable right inasmuch as the second sample was not sent to the laboratory for reanalysis. Apart from it, it has been contended that the Joint Director of Agriculture, Punjab, passed the sanction order for prosecution of the petitioner and another coaccused without applying his mind and no reason was given as to how the petitioner was responsible for misbranding of the insecticide in question.

Notice was issued to the respondents. Respondent No. 1, i.e. the State of Punjab, through Shri Swinder Singh Sohal, Insecticides Inspector, Amritsar, filed reply, contending inter alia that the payment of the sample of the insecticide in question purchased by him was made to the dealer in conformity with the provisions of Section 24(3)(4) of the Insecticides Act. It was contended that the sanction for prosecution of the petitioner and other accused was granted on 12.4.1996 and the complaint was filed in the Court of Chief Judicial Magistrate on 12.3.1997. It was denied that the right of the petitioner and others, i.e. respondents No. 2 to 11 to have the second sample tested from the referral laboratory was forfeited by any action of the answering respondent. The petitioner and respondents No. 2 to 11 applied to the Chief Agriculture Office, Amritsar for reanalysis and not to the answering respondent. It was further urged that all of them could have gone to the court of law in case of denial by the Chief Agriculture Officer as per provisions of Section 24(3)(4) of the Insecticide Act, but for the reasons best known to them, they kept silent for a long period. The period of limitation for filing the complaint as per provisions of section 462 Cr.P.C. is three years and in the instant case the complaint was filed on 12.3.1997 in respect of the sample drawn on 14.12.1995, i.e. well within the period of limitation. It was also denied that the Sanctioning Authority did not apply its mind while granting sanction in the case.

I have heard learned counsel for the petitioner and learned DAG for the State of Punjab, representing respondent No. 1. Respondents No. 2 to 11 are proforma respondents.

The insecticide in question, i.e. 2,4D Ethyl Ester was manufactured in November, 1995 and its expiry date was October, 1997. The sample was drawn on 4th December, 1995. The report of analyst of the Insecticides Testing Laboratory is dated 22.12.1995. The show cause notice was sent to M/s. Somanil Chemicals on 12.1.1996 enclosing therewith the report of the Analyst showing that the insecticide in question was misbranded. It is not disputed that the petitioner, as also the proforma respondents sought reanalysis of the second sample of insecticide in question well within prescribed period of limitation. But their request was not allowed and by the time the petitioner was summoned in the Court of Chief Judicial Magistrate, the shelflife of the insecticide in question had already expired. The complaint, copy Annexure P1, was filed on 19.3.1998. The shelf life of the insecticide in question expired in October, 1997. It is relevant to note that in the reply of respondent No. 1, the date of filing of the complaint, as mentioned in para 9 is 12.3.1997, whereas copy of the complaint (annexure P1) shows the that of filing of complaint as 19.3.1998. It has been mentioned in para 10 of the petition that the Chief Judicial Magistrate summoned the petitioner and respondent No. 2 for 4.6.1998. The averments made in para 10 of the petition are admitted in the reply filed by respondent No. 1. It clearly shows that the petitioner and respondent No. 2 to 11 were summoned in Court in the impugned complaint for 4.6.1998, i.e. well after the expiry of the shelf life of the insecticide in question. The short point which arises for consideration is whether the petitioner was deprived of the opportunity of having the second sample retested by the Central Insecticides Laboratory.

Subsections (3) and (4) of Section 24 of the Insecticides Act lay down 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 was 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 mention 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 Central Insecticides Laboratory, the result thereof, and such report shall be conclusive evidence of the facts stated therein."

It is not disputed that the petitioner after receipt of show cause notice had within 28 days of the receipt thereof sent a reply, praying for reanalysis of the second sample of the insecticide in question by the referral Laboratory, as in the instant case the sample had not already been tested by the Central Insecticides Laboratory. It is also not disputed that the request of the petitioner was not considered and the second sample of insecticide in question was not sent for reanalysis till the filing of the complaint or till the accused persons appeared before the Court of Chief Judicial Magistrate, which was well after the expiry of the shelflife of the insecticide in question. The respondent No. 1 has in his reply taken a plea that the request was not made to him, but it was made to the Chief Agriculture Officer, Amritsar, for reanalysis of the sample. In para 9 of the reply, it has been mentioned, inter alia, as under :

"It is denied that right of the petitioner and respondents 2 to 11 to have second sample tested in refer laboratory was forfeited by any action of this respondent. The petitioner and respondents No. 2 to 11 applied to Chief Agriculture Officer, Amritsar for reanalysis of sample and not to answering respondent. Moreover, all of them could have gone to the Court of law in case of denial by CAO, Amritsar as per provisions of Section 24(3)(4) of Insecticides Act, 1968. But due to reasons best known to them, they kept silent for a long period."

It is relevant to note that the show cause notice was issued by the Chief Agriculture Officer to the petitioner, as would appear from Annexure P1, annexed with the petition. The petitioner was, therefore, justified in giving a reply to the Chief Agriculture Officer and not to the Insecticides Inspector. Therefore, there is no merit in the plea taken by the Insecticides Inspector that the request was not made to him. The petitioner could not have known the intention of the Insecticides Inspector in filing the filed. As such, there was no occasion for the petitioner to approach the said court for seeking reanalysis of the said sample. As observed earlier, the Chief Judicial Magistrate summoned the petitioner and other accused, i.e. respondents No. 2 to 11 for 4.6.1998 and by that time the shelflife of the insecticide in question had already expired. In this view of the matter, the petitioner was deprived of his valuable right of having the second sample reanalysed by the referral/Central Insecticides Laboratory and as such the impugned complaint and the consequential proceedings flowing therefrom are liable to be quashed qua the petitioner.

Resultantly, the petition is allowed. The impugned complaint, copy annexure P1 and the proceedings flowing therefrom, pending in the Court of Chief Judicial Magistrate, Amritsar, are quashed qua the petitioner.