Jindal Brothers and Another vs State of Punjab

Harmohinder Kaur Sandhu, J.—The present petition has been filed u/s 482 of the Code of Criminal Procedure for quashing of complaint dated 2-4-1992 (Annexure P-7) filed by Baldev Singh, Insecticide Inspector against the petitioners under Sections 3(k)(i), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules, 1971 pending in the Court of Judicial Magistrate, Gidderbaha.

The facts as narrated in the complaint may be briefly recapitulated.

On 9-9-1991, Insecticide Inspector, Gidderbaha visited the shop of Jindal Brothers, Gandhi Chowk, Gidderbaha and took sample of three original packings of 250 ml. Monocrotophos 36 SI Batch No. 573-1. This insecticide was manufactured by Bharat Pesticides Manufacturing Company, petition No. 2, which is a unit of Bharat Insecticides and is a Company incorporated under the Companies Act. One sample was sent to the Regional Pesticides Testing Laboratory, Ludhiana. The expert analysed the sample and found that active ingredients were 38.09% as against 36% and the sample did not conform to specification with respect to its active ingredients. Proceedings were, therefore, launched against the petitioners.

The petitioners alleged that the Chief Agricultural Officer issued a show cause notice to them on 15-10-1991 stating therein that the sample of Monocrotophos 36% drawn on 9-9-1991 was found misbranded as it contained higher active ingredients. Replies were sent to this show cause notice wherein a request was made for re-analysis of the sample by Central Insecticides Laboratory but the sample was not sent for reanalysis. On 3-12-1991, petitioner No. 1 filed an application in the Court of Judicial Magistrate 1st Class, Gidderbaha for getting the sample reanalysed but reply of this application was submitted, when shelf-life of the sample had expired and the application was rejected on this ground. The complaint was filed on 2-4-1992 and due to this late filing of the complaint, the petitioners were deprived of an opportunity to get the second sample analysed by the Central Insecticides Laboratory and the complaint was liable to be quashed on this ground alone. It was further pleaded that the consent, u/s 31 of the Insecticides Act contemplated, consent in writing by the State Government or a person authorised by the State Government in favour of another officer who could file a complaint in the Court but the consent in the present case was not proper and consequently the complaint filed was bad in law on the grounds that the consent referred to the breaches by the Dealer only and not by the Manufacturer. It was given without recording grounds for being satisfied and it did not show that Joint Director was authorised to give consent on behalf of State Government. It was given in a mechanical manner without application of mind, on a cyclostyled form. A further plea that petitioner No. 1 acquired the insecticide in question in sealed tins from duly licensed manufacturer and was, thus, protected under the provisions of Section 30(3) of the Insecticides Act was also raised.

No return has been filed to the petition though an opportunity was granted to the respondent for submitting the same.

At the time of arguments, the learned counsel for the petitioners simply impugned the complaint on the ground that the petitioners were deprived of their valuable right to get the second sample examined by the Central Insecticides Laboratory as the complaint was filed after the expiry of shelf-life of insecticide. The sample in the instant case was drawn on 9-9-1991. The date of manufacturing of the sample was February, 1991 and the date of expiry was January, 1992 as the shelf life of monocrotophos was only one year. The Public Analyst reported that the sample was misbranded and then a show cause notice was issued to the petitioners on 15-10-1991. A copy of the show cause notice issued to petitioner No. 2 is Annexure P-2. Replies to this notice were sent by the petitioners which are dated 30-10-1991 and 22-10-1991 and are Annexures P-3 and P-3 A. Vide Annexure P-3 a request was made to the Chief Agricultural Officer, Faridkot to send the counter sample for testing to the Central Insecticides Laboratory u/s 24(4) of the Insecticides Act. This request of the petitioners was not acceded to by the Chief Agricultural Officer. On 3-12-1991, petitioner No. 1 presented an application in the Court of Judicial Magistrate 1st Class, Gidderbaha for sending the other sample to the Central Insecticides Laboratory for test. Notice of this application was given to the Chief Agricultural Officer, Faridkot and he submitted his reply, copy of which is Annexure P-5. In this reply it was contended that the second sample could be sent for analysis by the Court only when case is instituted and proceedings are pending before the Court. In the instant case, no prosecution had been launched by the Insecticide Inspector and the application was not maintainable. The application was disposed of on 30-3-1992 vide order copy of which is Annexure P-6. The Court observed that the date of sample had expired so papers be filed. It was only on 2-4-1992 when shelf-life of the sample had expired that the complaint was filed against the petitioners.

In S.K. Ahooja v. State of Haryana 1989 Cri LJ 596 sample of pesticide was found sub-standard by the Analyst and the complaint was lodged. Accused was summoned by the Court after the expiry date of pesticide. It was held that this deprived the accused of his right to get the second sample examined by the Central Insecticide Laboratory u/s 24(4) of the Act and the proceedings were quashed on this ground. In the instant case as soon as a show cause notice was received by the petitioners, they requested the authority concerned to get the second sample analysed by the Central Inseticides Laboratory as they did not accept the report of Regional Insecticides Analyst and wanted to controvert the same. The second sample, was however, not sent for reanalysis to the Central Insecticides Laboratory. The petitioners approached the Court but instead of acceding to the request of the petitioners, the respondent resisted the prayer of the petitioners, on the ground that since no prosecution had been launched against the petitioners they were not entitled to get the second sample analysed. Moreover, shelf life of the sample had expired and the petitioners were deprived of their valuable right to controvert the report of the Senior Analyst, Insecticide Testing Laboratory, Ludhiana. The petitioners had chosen to exercise their valuable right to controvert the report of the Senior Analyst but they were denied that right on account of deliberate conduct of the respondent. There was delay in institution of the prosecution and as the sample became unfit for analysis, the petitioners were seriously prejudiced in their defence. No reason is given as to why the complaint was not filed in Court within reasonable time on receipt of the report of the Analyst. It is always expected that the prosecution will proceed in such a manner that any right available to a person who is being prosecuted is not denied to him.

As the complaint was filed after the date of expiry of the sample and the petitioner''s application for getting the sample re-analysed was opposed by the respondent, the petitioners were deprived of the right to get the sample re-analysed and the complaint is liable to be quashed on this ground. As a result, I quash the complaint dated 2-4-1992 (Annexure P-7) and subsequent proceedings arising therefrom, pending in the Court of Judicial Magistrate 1st Class, Gidderbaha.