Kush Kumar Bhasin vs State of Haryana

V. S. Aggarwal, J.

This is a petition filed by M/s Haryana Pesticides Mandaur, Ambala City through Kush Kumar Bhasin. It seeks quashing and setting aside of the complaint filed by the respondent against the petitioners under Sections 3(K)(i) and 29(3) of the Insecticides Act, 1968 pending in the court of learned Chief Judicial Magistrate, Sirsa.

The relevant facts are that on 9.9.1992 Budh Ram Bishnoi, Quality Control Inspector, Sirsa had drawn the sample of insecticide known as Dimethoate from the shop of M/s Bant Singh and Company. The petitioners are alleged to be the manufacturer under the licence granted by the Director of Agriculture. The sample was sent to the Quality Control Laboratory, Karnal. It was found that insecticide contained 22.65% active ingredient instead of 30%. The product was described to be misbranded. It resulted in filing of the complaint.

The petitioners seek quashing of the same on the ground that in accordance with the provisions of Insecticides Act, one sample is required to be deposited with the Magistrate. It has not been done. Furthermore, it is urged that the complaint was filed after the shelf life of the product. It expired in January, 1993 while the complaint was filed on 26.3.1993. The petitioners could not get the sample analysed from the Central Insecticide Laboratory and prejudice accordingly is caused. The sanction accorded too was alleged to be not valid.

In the reply filed the petition has been contested. It is denied that there is any violation of Section 22 or 24 of the Insecticides Act. The permission granted is stated to be valid.

The main contention raised by the learned counsel for the petitioners was with respect to the alleged violation of Section 24 of the Insecticides Act, 1968. Subsections (1) to (4) of Section 24 of the Insecticides Act, 1968 reads as under :

"24(1) The Insecticide Analyst whom a sample of an 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 twenty eight 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 contravention 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 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 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 the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein."

It is apparent from the relevant provisions referred to above that when the Insecticide Inspector receives the report of the Analyst, one copy has to be delivered to the person from whom sample has been taken. Within 28 days of the receipt of the copy, the said person can show his intention to adduce defence in contravention of the report. Subsection (4) of Section 24 of the Insecticides Act assumes greater importance because even at the request of the accused or the complainant, the Court can call the samples of the Insecticides to be sent to the Director of Central Insecticides Laboratory. When the complaint as such was filed after the shelf life had expired, the accused petitioners lost their right to get the sample reanalysed from the Central Laboratory. The prejudice would be deemed to have been caused because a statutory right which was available to the petitioners, was lost. The petitioner was deprived of his right to get the sample analysed. A similar question arose before this Court in the case of S. K. Khurana and another v. State of Punjab, 1995(2) CLR 117. It was held :

"Provisions of subsection (4) of Section 24 of the Act show that if sample was not tested in the Central Insecticide Laboratory, the person from whom the sample had been taken is not entitled to claim re analysis through the Court. However, discretion is left with the Court to get the sample retested on the request of either of the parties. In this process, if the complaint is filed in court after the expiry of the shelf life of the insecticide, it is then obvious that accused has been debarred of his valuable right to get the sample retested with the expiry/passage of time. In the present case, as already pointed out above, the shelf life of the product expired in February, 1990 and the complaint was filed in September, 1990. There has been an inordinate delay in filing the complaint and in this process, prejudice is caused to the petitioners."

Keeping in view the aforesaid, it is obvious and leaves no room for considering the contentions of the respondent particularly when prejudice is caused to the petitioner. The complaint is liable to be quashed.

For these reasons, qua the petitioners the complaint filed against them in the Court of Chief Judicial Magistrate with respect to offences punishable under Section 3(K)(i) and Section 29(3) of the Insecticides Act, 1968 is quashed.