Jai Chemicals vs State of Punjab

Harmohinder Kaur Sandhu, J.

The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure praying that the complaint (Annexure P1) pending in the court of SubDivisional Judicial Magistrate, Bathinda under Sections 3(k)(i), 17, 18, 29 and 33 of the Insecticide Act, 1968 and all subsequent proceedings arising therefrom be quashed, being abuse of the process of the Court.

The brief resume of the facts necessary for the disposal of this petition are that on 10.10.1990 Gurmej Singh, Insecticide Inspector inspected the premises of M/s. Malwa Pesticides Seeds Store Rama and took a sample of Malathion 50% E.C. in the presence of Bikkar Singh. At the time of taking of sample three packings of 250 mls. of batch No. DF 02 were purchased. Date of manufacture was June 1990 and Date of expiry was May, 1991. This Insecticide was manufactured by M/s. Jai Chemicals, Mathura Road, Faridabad. One sealed packet was handed over to Rakesh Kumar of M/s. Malwa Pesticide and Seed Store Rama and the other two samples were deposited in the office of the Chief Agricultural Officer, Bathinda. The sealed samples were sent later on to the Director (RL) Officer Incharge, 92 Industrial Area, Phase II, Chandigarh. The Test Report was received in the office on 7th January, 1991 according to which the sample of Insecticide Malathion 50% E.C. was not found according to I.S.I. Specification on account of acidity. A registered notice was sent to the defaulting firm along with a copy of the Test Report and so also a Registered Notice was sent to the manufacturer, by Chief Agricultural Officer, Bathinda on 22.1.1991. Since the dealer was selling insecticide which was sub standard, a complaint was filed in the court of SubDivisional Judicial Magistrate, Bathinda against the dealer as well as against the manufacturer.

The petitioners assailed the complaint on the grounds that there was no allegation nor any material to show that they were incharge or responsible for the conduct of the business of the company at the relevant time. Only those who were responsible to the company for the conduct of the business of the company could be liable. Sanction for prosecution Annexure P5 was non est as it was not validly issued. The sanctioning authority did not apply his mind before granting it. It was on a cyclostyled form with the blanks filled in. There was also delay in filing the complaint. The petitioners learnt about the complaint only in August 1992 while the date of expiry of the sample was May, 1991. They were thus deprived of their valuable right under Section 24 of the Act to get the sample reanalysed from Central Insecticides Laboratory.

In the return filed by the respondents, it was maintained that petitioner No. 2 was the Production Manager of M/s. Jai Chemicals, manufacturer of substandard insecticide and incharge of the firm, so was liable to be prosecuted. The petitioner company was duly supplied a copy of the analysis report along with the showcause notice dated 22.1.1991 in which it was specifically pointed out that sample of insecticide was found sub standard as percentage of its active ingredients was found 48.70 instead of 50 per cent. It was admitted that the complaint was filed in court on 15.10.1991 but this fact was denied that the petitioner learnt about the institution of the complaint after long delay. Regarding sanction it was pleaded that the same was granted by the competent authority after applying his mind and after completing all the formalities. It was further averred that the petitioner was in no way deprived of his right under Section 24(4) of the Act as the sample had already been analysed by the Central Insecticides Laboratory and they were afforded full opportunity to get the sample retested from the Laboratory.

I have heard the counsel for the parties and have perused the record.

It was argued on behalf of the petitioner that the sample in this case was got tested from Regional Pesticides Testing Laboratory, Chandigarh and as per report of the Analyst sample did not conform to ISI specification and it was found misbranded. According to provisions of Section 24(3) of the Insecticides Act if any person from whom the sample was taken, 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 contravention of the report, the court may in its discretion, at request either of the complainant or of the accused cause the sample to be sent for test or analysis to the Central Insecticides Laboratory and the result of such report shall be conclusive of the evidence of the facts stated therein. The petitioners in this case had a right to get the second sample tested from Central Insecticides Laboratory in order to controvert the report of the Regional Pesticides Laboratory Chandigarh. This fact was also brought to the notice of the Chief Agricultural Officer, Bhatinda but as the complaint was filed in the court after the expiry of the shelf life of the sample, the petitioners were deprived of their valuable right to make prayer to the court for reanalysis of the sample from the Director, Central Insecticides Laboratory and the complaint was liable to be quashed on this ground alone. In support of his contention the learned counsel placed reliance on the case of U.B. Bukana, Assistant Marketing Manager, Gujrat Narmada Valley Fertilizer Company Limited Amritsar and another v. State of Punjab, 1993(1) Recent Criminal Reports 665 . I find merit in the contention of the learned counsel. Malathion of which sample was taken was manufactured in June, 1990 and its date of expiry was May, 1991. The Analyst made his report on 7.1.1991 but the complaint was filed in court on 15.10.1991 i.e. after the expiry of the shelf life of the sample. Earlier a notice was sent to the manufacturer copy of which is Annexure P3 but copy of the report was not sent along with the same. The manufacturer obtained copy of Test Report from his distributor and then submitted a reply denying the averments that the insecticide was not according to I.S.I. specification and there was any violation of the provisions of the Act. It was further made clear that if the Chief Agricultural Officer was not convinced with the explanation submitted by the manufacturer then the counter sample be got tested from Central Insecticides Laboratory but thereafter no effort was made to get the second sample tested rather complaint was filed in court after a lapse of five months. Notice of the complaint was received by the petitioners in August 1992. Vide Annexure P4, the petitioner had given indication that they wanted to challenge the report of the Analyst but still the prosecution was delayed without any reasonable cause. The petitioners were thus deprived of their valuable right to make a prayer to the court for getting the sample tested from Central Insecticides Laboratory in order to controvert the report by the Regional Pesticides Laboratory and the complaint is liable to be quashed on this ground alone as it is not likely to end in conviction and its continuation will amount to abuse of the process of the court.

No other ground was pressed at the time of the arguments.

For the reasons recorded above I accept this petition and quash the impugned complaint as well as subsequent proceedings arising therefrom against the petitioners.