Dwarka Dass Sham Lal vs State of Punjab

J.S. Sekhon, J.

On 28th July, 1988 Shri Jasbir Singh Insecticides Inspector visited the premises of M/s Dwarka Dass Sham Lal, Nabha Gate, Patiala and took the Sample of Phorat (sid) batch No. 06022 manufacture by Omega Agro Private Limited in the presence of Sham Lal proprietor of the said firm who signed the seizure memo. The sample was taken in accordance with the provisions of Insecticide Act 1968 (for short the Act) and Rule 1971 made thereunder. The sample was divided into three equal parts and sealed in three packages in the presence of Sham Lal accused. One of the package was sent to the Central Insecticides Laboratory Faridabad for analysis through the Chief Agriculture Officer, Patiala. One sample was handed over to Sham Lal accused and the third sample was deposited with Chief Agriculture Officer, Patiala. The Senior Analyst, Central Insecticide Laboratory, Faridabad found the sample to be misbranded as it did not conform the Ist specifications in respect of the percentage of active ingredients test. After obtaining the necessary sanction under Section 31(1) of the Insecticides Act. 1968 from the Joint Director of Agriculture, Punjab for prosecution of accused, the Insecticides Inspector filed complaint in the Court of Chief Judicial Magistrate, Patiala for violation of clauses 3(1)(i) and 29(1)(a) of the Insecticides Act, 1968 punishable under Section 29(1) of the said Act against the dealer as well as against its manufacturer for violation of Section 3(k)(i) of the Insecticides Act.

Dealer firm through its partner Sh. Sham Lal Seeks the quashment of the said complaint and resultant proceedings there from through this petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India interalia on the ground that the complaint was filed after the expiry of shelf dated on the insecticide which has debarred the petitioner of his valuable right under Section 24 of the Act for getting it retested from the Central Laboratory. It is further maintained that the sample having been got analysed from the Central Insecticides Laboratory, Faridabad and not from the State Laboratory has resulted in denying the petitioner of his right to get the sample retested from the Central Laboratory. The sample having not taken in the original sealed container as required under Section 22(5) of the Act is also averred. The delivery of the report of the Analyst beyond the period of 60 days in contravention of Section 24(1) of the Act was also taken. Objection regarding the sanction having been granted for the prosecution of the petitioner without due application of mind was also taken. The objection regarding the lack of averments in the complaint as to which partner was the incharge of the firm and responsible for the conduct of the business was also taken.

This petition was resisted by the respondent through return filed by the Chief Agriculture Officer, Patiala. It was explained that as the facilities of testing the phorat 10% being not available at the State Insecticides Laboratory, Ludhiana, the same were sent to the Central Insecticides Laboratory, Faridabad. It was further maintained that on receipt of report of the Central Insecticide Laboratory, show cause notice was served upon M/s Dwarka Dass Sham Lal by the answering respondent on 19101988 by Sham Lal in his reply dated 2.11.1988 submitted before the answering respondent, did not claim retesting of the sample and the manufacturer has also not applied for analysis. Thus, the petitioner was not deprived of any valuable right for reanalysis of the sample. It was also maintained that the sample was drawn from large container according to Section 22(5) of the Act on 2871988 and on test the sample was declared misbranded on 2791988 well within the prescribed period of 60 days under Section 24(i) of the Act. It was further explained that Sham Lal petitioner was himself present at the business premises and has signed the seizer memo etc. thus he was fully responsible for the violation of the provisions of the Act. It was also maintained that the complaint was filed before the Chief Judicial Magistrate, Patiala after obtaining valid sanction under Section 31(1) of the Act from the Joint Director, Agriculture, Punjab.

I have heard the learned counsel for the parties besides perusing the record.

The crucial controversy involved in this petition is :

(i) whether the filing of complaint after the expiry of the shelf life of the insecticide debars the accusedpetitioner of his valuable right to get the sample retested from the Central Insecticide Laboratory under subsection (4) of Section 24 of the Insecticide; and

(ii) whether getting the sample tested from the Central Insecticide Laboratory and not getting it tested from the State Laboratory would also amount to debarring the accused petitioner of his valuable right under subsection (4) of Section 24 of the Act.

The provision of the Section 24 reads as under :

Report of Insecticide Analyst. (1) The Insecide 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 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 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 Insecticide Laboratory under subsection (4) shall be paid by the complainant or the accused,as the Court shall direct.

The provisions of subsection(4) of Section 24 leave no doubt that if the sample is not tested or analysed in the Central Insecticide Laboratory, the person from whom some sample has been taken is not entitled to claim reanalysis of the sample through the Court but if it is tested by Insecticide Analysts a discretion has been given to the Court to get the sample of insecticides retested suo motu or on the request of either of the accused or complainant from the Central Insecticides Laboratory and such report shall be conclusive evidence of the facts stated therein. In subsection(3), it is provided that the report of the Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample has been taken has within 28 days of the receipt of copy of the report notifies in writing to 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. Thus a combined reading of the provisions of both these subsections I have no doubt that the person from whom the sample of insecticides has been taken can claim its retesting from the Central Insecticides Laboratory, if proceedings in respect of the sample tested by Insecticide Analyst are pending in any Court. Consequently, if the complaint has been filed in a Court after the expiry of the shelf life of insecticide then it will be taken that the accused has been debarred of his valuable right to get the sample retested, because due to the expiry of the shelf life of the insecticides, its ingredients are bound to deteriorate or become less active. In the case in hand admittedly, the sample of insecticide was taken on 28.7.1988. The insecticide was manufactured on 5.6.1988 and its expiry date was 4.6.1989. The complaint was filed on 18.2.1991, i.e. much after the expiry of the shelf life of the insecticide. There is no provisions under the Insecticides Act that the vendor can get the sample retested before the launching of the prosecution against him except that under subsection (3) he can challenge the report of Insecticide Analyst. The mere factum that on receipt of the report regarding the misbranding of the insecticide, a show cause notice was served upon the dealer and that the dealer in his reply dated 2.11.1988 did not demand any reanalysis is of no consequence, especially when he can apply to the Court under subsection (4) of Section 24 of the Act to get the sample retested. On the other hand, the provisions of subsection (3) simply provide that in case of such written requisition by the dealer, the report shall not be conclusive evidence of the facts contained therein. Thus service of notice regarding the sample being misbranded before the date of expiry of the life of the insecticide is of no consequence. The observations of the Apex Court in Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 Supreme Court 970, that due to inordinate delay in instituting the prosecution, a valuable right conferred by Section 13(2) of the Prevention of Food Adulteration Act 1954, on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, is taken away are aptly applicable to such like contingency. In that case, the sample of curd of Cow''s milk was found adulterated by the Analyst but due to delay in filing the complaint, the curd supplied to the vendor and sent to the Director, Central Food Laboratory on the written request of the latter was found unfit for analysis being highly decomposed. Under these circumstances, the Apex Court observed in para 7 of the judgment as under :

"It appears to us that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that the right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst even though that report continue to be evidence in the case of the facts contained therein."

Following the above dictum of apex Court, the learned Single Judges of this Court in H. Lange v. The State of Punjab and ors., 1986(1) Recent Criminal Reports 176 : 1986(1) CLR 383 , in S.K. Ahuja v. State of Haryana and ors., 1989(1) RCR 596 , in Bhai Manjit Singh Managing Director, Montari Industries Ltd. v. The State of Punjab, 1992(1) RCR 244 observing that due to the filing of the complaint after the expiry date of different insecticides in those cases had resulted in debarring the accused of exercising his valuable right under Section 24(4) of the Act of getting the samples of insecticides retested from the Central Insecticides Laboratory, quashed the proceedings.

Consequently, there is no escape but to hold that in cases where the sample of insecticides was first got tested from the Insecticides Analyst, the filing of the complaint after the life of the insecticide would result in debarring the accused of his valuable right of getting the sample retested from the Central Insecticides Laboratory as provided under Subsection(4) of Section 24 of the Act.

The question then arises whether in those cases where the sample of insecticide was got tested or analysed at the outset from the Central Insecticides Laboratory, the filing of complaint after the expiry of the life of the Insecticide would also result in debarring the accused of such valuable right. In this regard the provisions of subsection (4) of Section 24 reproduced above clearly shows that request of the complainant or the accused or the Court on its own motion may get the sample retested from the Central Insecticides Laboratory unless the sample already been tested or analysed in the Central Insecticides Laboratory. The above referred dictate of the legislature is logical because if the sample had already been tested by the Central Insecticides laboratory then there is no sense in getting it retested from the same laboratory. In the case in hand, the sample of Phorate 10% GR was got directly tested from the Central Insecticides Laboratory, Faridabad because the State Insecticide Laboratory, Ludhiana could not test insecticide due to lack of facilities. Consequently, in this case, the filing of the case much after the period of expiry of the life of the insecticide is of no consequence.

It is noteworthy that in Municipal Corporation Delhi v. Ghisa Ram (supra) before the Supreme Court, the sample of curd was not tested from the Public Analyst and therefore on the application of the accused, the other sample was sent of testing to the Director, Central Food Laboratory under the provisions of Section 13(2) of the Prevention of Food Adulteration Act, 1954, but it was found unfit for analysis. Thus that case is not the relevant authority on the point where at the outset the sample was got tested from the Central Insecticides Laboratory.

In H. Lange''s case (supra) although the sample of insecticide was got tested at the outset from the Central Insecticides Laboratory, Hyderabad. Yet the import of the provision of subsection(4) of Section 24 providing retesting of the sample from the Central Insecticide Laboratory only in those cases where the sample was earlier tested by the State Testing Laboratory was not pertinently brought to the notice of the learned Single Judge or discussed. Similarly, in S.K. Ahooja''s case (supra), the sample of insecticide was got tested from the Central Insecticides laboratory, Faridabad at the outset, but this aspect of the provisions of subsection (4) of Section 24 of the Act was not brought to the notice of the learned single Judge or discussed.

This controversy arose in M/s United Pesticides and anr. v. State of Punjab and ors., 1992(1) RCR 678 , before the learned single Bench of this Court and in para 7 of the judgment, it was observed as under :

"It was submitted before me that in the present case respondent No. 1 by sending the sample for analysis to the Central Insecticides Laboratory deprived the petitioners of their valuable right to rebut the report of the Laboratory and as such the complaint was liable to be quashed. This contention of the learned counsel is quite valid. Under the provisions of the Act the sample taken by the Insecticide Inspector is to be sent for analysis to the Insecticide Analyst and not to the Central Insecticides Laboratory. Section 16 of the Act relates to the establishment of Central Insecticides Laboratory by the Central Government under the control of a Director to be appointed by the Central Government to carry out the functions entrusted to it by or under the Act. Section 19 of the Act. Provides :

"The Central Government or a State Government may, by notification in the official gazette, appoint persons in such number as it thinks fit and possessing such technical and other qualifications as may be prescribed to the Insecticide Analyst for such areas and in respect of such insecticides or class of insecticides as may be specified in the notification."

While sitting in singly in Criminal Misc. No. 9274M of 1990 S.K. Khurana v. State of Punjab and anr., decided on 2731992, I have taken the view contrary to the above view in M/s United Pesticides'' case (supra) that no valuable right of the accused is taken away by getting the sample tested at the outset from the Central Insecticides Laboratory. The above referred view is supported from the fact that the report of the Director, Central Insecticides Laboratory has an overriding effect on the report of Insecticide Analyst as per provisions of subsections(4) of Section 24 and thus if the sample is directly got tested from the Central Insecticides Laboratory, it will not result in any prejudice to the accused of debarring him from exercise of his valuable right, especially when the State Laboratory has not the requisite facility for testing the contents of Phorate 10% G.R.

This controversy is likely to crop us in number of cases in view of the two contradictory opinions by the single Bench and is of vital importance. Consequently, it is considered a fit case where the decisions of the larger bench is called for on the following questions :

Q 1. Whether getting a sample of insecticide at the outset tested from the Central Insecticides Laboratory without getting it tested from the State Insecticides Analyst in cases where no such facilities exist in the State Insecticide Laboratory had debarred the accused from his valuable right provided under subsection(4) of Section 24 of the Act in getting the sample retested from the Central Insecticides Laboratory?

Q2. Whether getting the sample of insecticide at the outset tested from the Central Insecticides Laboratory without getting it first tested from the State Insecticide Analyst where the facilities of the testing of particular insecticide are available would result in debarring the accused of the valuable right of getting the sample retested provided under subsection(4) of Section 24 of the Act?

The papers be laid before the Hon''ble Chief Justice for constituting an appropriate bench.