Jagdish Chander Khurana and Others vs State of Punjab

P.K. Jain, J.—By this judgment two Criminal Miscellaneous Petitions Nos. 2586-M of 1996 and 2588-M of 1996 shall be disposed of as the same have arisen out of the same complaint and also involve common question of law and facts.

M/s. Ajay Fertichem (Bombay) Private Limited, one of the petitioners in Crl. Misc. No. 2586-M of 1996 is the manufacturer and Jagdish Chander Khurana is carrying on business under the name and style of M/s. Jagdish Chander Khurana, who is the dealer of an insecticide known as Monocroptophos 36%. On February 22, 1994, the Insecticides Inspector purchased 3 tins, each containing 1/2 litre of the aforesaid insecticide, by way of sample from the said dealer. The manufacturing date thereof was May 1993 and the expiry date April 1994. The sample, on analysis, was found to be misbranded. A show-cause notice along with the copy of the Analyst''s report were delivered to the dealer as well as to the manufacturer. After obtaining necessary consent, a complaint was filed against the dealer as well as the manufactuer in the Court of Chief Judicial Magistrate, Ferozepur.

The dealer as well as the manufacturer have filed the present petitions for quashing the said complaint on the grounds that the complaint has been filed after the expiry of the shelf life of the insecticide in question and they have been deprived of a valuable right conferred upon them by Section 24 of the Insecticides Act, 1968 (for short ''the Act'') and that the provisions of Sections 30 and 31 of the Act have not been complied with.

Notice of motion was issued to the respondent. In reply, the factual position as narrated above has not been disputed. It has been pleaded that the petitioners never applied before the department for sending the counter sample for testing to the Central Laboratory in spite of the notice served upon them, and thus no right of the petitioners u/s 24 of the Act has been violated in this case. It has been further stated that necessary provisions of the Act have been complied with and the complaint has been filed in accordance with law.

I have heard the learned counsel for the parties and have gone through the record.

Mr. Ravinder Chopra, Advocate, learned counsel for the petitioners, has confined his arguments only to one ground of challenge, i.e. the complaint having been filed after the expiry of the shelf life of the insecticide is liable to be quashed since the petitioners have been deprived of their valuable right conferred by Section 24(4) of the Act. On the other hand, Shri Ramanjit Singh, Assistant Advocate General, Punjab, has argued that even in spite of the show-cause notice along with the copy of the report of the Analyst having been served upon the petitioners, they never challenged the correctness of the report and demanded that the second sample be sent to the Central Laboratory and, therefore, the petitioners cannot take the shelter behind the provisions of Section 24(4) of the Act.

The relevant portion of Section 24 of the Act may be noticed as under;-

"24(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 Insecticides inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report.

(4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under Sub-section (3) notified his intention of adducing evidence in controversy 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 Sub-section (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."

Thus, Section 24 of the Act confers two rights i.e. the right to challenge the correctness of the report of the analysis on the receipt of the show-cause notice, and secondly, to challenge the same and to make a request before the Court for re-analysis of the counter sample after the complaint is filed. The provisions of this section simply provide that in case a written request is made by the dealer or the manufacturer expressing its intention to controvert the report of the Analyst, the report shall not be conclusive evidence of the facts contained therein. Therefore, the service of the notice regarding the sample being misbranded or intimating the dealer or the manufacturer that the re-analysis can be ordered by a Court before the date of expiry of shelf life of the insecticide, is of no consequence. The material requirement of the Act is that the complaint should be filed and the accused should be served well in time before the expiry of the shelf life of the insecticide in question so as to enable the accused persons to challenge the correctness of the report of the Analyst by forwarding the counter-part of the sample to the Central Laboratory. If this right of an accused under the Act is violated by inaction or omission on the part of the department, the same is fatal to the prosecution.

In, Municipal Corporation of Delhi Vs. Ghisa Ram, due to inordinate delay in instituting the prosecution, a valuable right confered by Section 13(2) of the Prevention of Food Adulteration Act was taken away. In these circumstances, the Apex Court made the following observations at page 941 (of Cri LJ) :-

"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 continues to be evidence in the case of the facts contained therein."

While placing reliance upon the aforesaid judgment a complaint under the Act, on identical facts and circumstances, was quashed by this Court in, Mewa Singh v. Prithpal Singh 1994 (1) RCR 94, and Raj Hans Chemicals v. State of Punjab 1994 (2) RCR 139. Similar views were expressed by this Court in Hindustan Pulvarising Mills v. State of Haryana 1992 (2) RCR 313, National Organic Chemicals Ltd. v. State of Haryana 1992 (1) RCR 157 and Jai Chemical v. State of Punjab 1994 (3) RCR 610. This very view has been expressed by this Court in Thakur Chemicals v. State of Haryana, Criminal Misc. No. 11102-M of 1995, decided on March 27, 1996.

In the present case, it is not disputed that the manufacturing date of the insecticide in question was May 1993 and the expiry date April 1994. It is also not disputed that the sample was taken on 22-2-1994 and the show-cause along with the report of the Analyst was served upon the petitioners vide letter dated 21-3-1994. It is also admitted that the impugned complaint was filed on 10-8-1994. In other words, the complaint in itself was filed after the expiry of the shelf life of the insecticide in question. It is also not disputed that a request for the re-testing of the counter sample can be made to the Court if proceedings in respect of the sample tested by the insecticide Analyst are already pending in any Court. Consequently, 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 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 to be 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 in itself fatal to the complaint. This view finds affirmation in Bhai Manjit Singh, Mangaging Director, Montari Industries Ltd. v. state of Punjab 1992 (1) RCR 244, Dwarka Dass Sham Lal v. State of Punjab 1993 (3) RCR 583, and Newa Singh''s case (supra). Therefore. I have no hesitation in holding that by filing the complaint after the expiry of the shell life of the insecticid in question, the petitioners have been deprived of their valuable right conferred by Section 24(4) of the Act, which in itself is fatal to the complaint.

Consequently, I accept this petition and hereby quash the complaint (Annexure P.1) and the consequent proceedings thereon pending in the Court of Chief Judicial Magistrate, Ferozepur.