Mewa Singh vs Prithipal Singh Insecticides

J.S. Sekhon, J.

Criminal Misc. No. 10833M of 1990 and 10836M of 1990 shall be disposed of by common order as these involve almost the same legal controversy although the factual matrix is different. In criminal Misc. No. 10836M of 1990 manufacturer through its Regional Manager Sh. Mewa Singh seeks quashment of the complaint for offence under Section 3(k)(i) read with Sections 17, 18, 29 and 33 of the Insecticides Act, 1968 on various grounds. In this case Sh. Pirthpal SinghInsecticides Inspector Sultanpur Lodhi District Kapurthala has taken the sample of Penvel brand Fenvelerate insecticide bearing batch No. 579 on 2311987 From M/s. Garg Sales Corporation, Mandi Road, Sultanpur Lodhi dealing in the sale of pesticides The Inspector selected there packets of Penvel brand Fenelerate insecticide batch No. 579 for purpose of Sampling in the presence of Sh. Naveen Kumar, incharge of the business of the said firm. Shri Naveen Kumar has signed the relevant forms as sole proprietor of the firm. Each container of sample was sealed in the presence of Sh. Naveen Kumar accused. One of the sample was handed over to Sh. Naveen Kumar, the other two were sent to the Chief Agriculture Officer, Kapurthala for getting the sample to be analysed, and other to be retained in the said office. Later on one sample was sent to the Director, Central Plant Protection Training Instituted, Rajinder Nagar, Hyderabad a duly notified branch of Central Insecticide Laboratory. The Director, Central Insecticides Laboratory on testing of the sample opined that the sample does not conform to the relevant ISI specifications as per manufacturers method in its active Ingredient content and thus declared it misbranded as per provisions of Section 3(k)(i) of the Insecticide Act, 1968. The insecticide was supplied to the dealer by M/s Modern Plant Production Centre, near Adda Bastian, G.T. Road Jalandhar City and it was manufactured by M/s Searle (India) Limited having its head office at Bombay. Thus, after obtaining the necessary sanction from the Joint Director of Agriculture Punjab under Section 3(1) of the Act, a complaint for offences under Section 3(k)(i), 17, 18, 29 and 33 of the Act read with Rule 27(5) of the Insecticide Rules 1971 was filed against the dealer, distributor and manufacturer before Sub Divisional Judicial Magistrate, Sultanpur Lodhi. The Sub Divisional Judicial Magistrate, Sultanpur Lodhi issued summons to the petitioner which were received on 21.11.1989 The manufacturer seeks the quashment of complaint interalia on the ground that the complaint was filed on 1071989 much after the expiry date of the insecticide i a. November, 1981 and the process was served upon the petitioners in November, 1989. It has resulted in loss of valuable right of manufacturer to get the sample retested from the Central Laboratory. It was also maintained that there was no standard of toxicity prescribed by any authority under the Insecticides Act, and thus the report of analyst that the sample contained higher active ingredient is of no consequence. Reliance in this regard was placed in a decision in Madan Dangi and Ors. v. State of Punjab, 1987 Criminal Law Journal 138. The objection regarding the loss of valuable right to get the sample retested from the Central, Laboratory under Section 24(4) of the Act due to not getting the sample tested from the State Analyst was also taken. The receipt of the Insecticides analysis beyond the period of 60 days under Section 24(i) of the Act by the Insecticide Inspector was also stressed. The non service of the report of the Insecticides Laboratory Analyst on the person from whom the sample was drawn within the stipulated period was also taken. It was also maintained that the provisions of Section 24 does not require the serving of Analyst report upon the manufacturer and if the dealer from whom the sample of insecticides taken does not challenge it the report becomes final. Thus, vires of Section 24 of the Act have been challenged on the ground of being violative of Rules of natural justice, The analogous provisions of Food Adulteration Act were referred in connection with supplying the report of the Public Analyst to the dealer from whom the sample was taken as well as to the person who supplied the article and it is provided that either or both of them to challenge the report within 10 days. Provisions of Sections 18A, 23 and 25 of the Drugs and Cosmetics Act providing for supplying of copy of the report to the manufacturer was also stressed in this regard. The validity of consent for prosecution under Section 31(1) was also assailed on the ground of non application of the mind as well as on the ground that it was (sic) after the expiry of shelf life of the product. The decision of the apex Court in A.K. Roy v. State of Punjab, AIR 1986 Supreme Court, in the matter of sanction was also referred in this regard.

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

In Criminal Misc. No. 10836M of 1990 the sample of Fenvelrate 20% W.W. was taken on 23.1.1987. The insecticide was manufactured in December, 1985 and its expiry was in November, 1987 while the complaint was filed on 10.7.1989, i.e. much after the expiry of the shelf of the insecticide

In Criminal Misc. No. 10833M of 1990, the sample of Fenvalrate was taken on 19188. The label on the container revealed that it was manufactured in August, 1987 and the date of expiry was July 1989, whereas the complaint was filed on 11789 and the service of the summons on the petitioners was effected on or about 3151990 requiring them to attend the Court on 14.6 1990, Thus it can be well said that the petitioners were made aware of their prosecution of the offences under the Act much after the expiry of the period of the life shelf of the insecticide as in this case also the sample was got tested at the outset from the Central Insecticides Laboratory, Faridabad.

Thus, the crucial controversy involved in these petition is

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

(ii) Whether getting the sample tested from the Central Insecticides 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 provisions of Section 24 read as under:

Report of insecticide Analyst

(1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under sub section (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 contraversion 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 own motion or in its discretion at the request either of the complaint or of the accused, cause the sample of the insecticide 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.

(5) The cost of a test or analysis made by the Central Insecticides Laboratory under subsection(4) shall be paid by the complainant or the accused, as the Court shall direct.

The provisions of sub section(4) of Section 24 leaves no doubt that if the sample it got tested or analysed in the Central Insecticides Laboratory, the person from whom some sample has been taken is not entitiled to claim reanalysis of the sample through the Court but if it is tested by Insecticide Analyst a discretion has been given to the Court to get the sample of Insecticides retested suo motu or on the request of either the amused 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 the copy of the report notified 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 the subsections leave no doubt that the person from whom the sample of insecticides has been taken can claim its retesting from the Central Insecticides Laboratory, if the 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 insecticides then it will be taken that the accused has been debarred of his valuable right to get the sample tested, because due to the expiry of the life of the insecticides, its ingredients are bound to deteriorate or become less active. In the cases the complaints were filed much after the expiry of the shelf life of the insecticides . There is no provision under the Insecticides Act that the vendor can get the sample retested before the launching of the prosecution against him except in 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 did not demand any reanalysis is of no consequence, especially when be can apply to the Court under subsection (3) and (4) of Section 24 of the Act to get the sample retested on the written requisition of the dealer on the other hand, the provisions of his Section simply provide that in case such written requisition by the dealer, the report shall not be conclusive evidence of the facts contained herein. Thus service of notice regarding the sample being misbranded before 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. hiss. 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 sample of 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 change 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."

Following the above dictum of apex Court, the learned Single Judges of this Court in H. Lange v. The State of Punjab & Ors., 1986(1) CLR 383, in S.K. Ahooja 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 , observed that due to the filing of the complaint after the expiry date of different insecticide 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 tetested 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 expiry of the life of the insecticide would result in debarring the accused of his valuable of getting the sample retested from the Central Insecticides Laboratory as provided under subsection (4) of Section 24.

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 result in debarring the accused of such valuable right. In this regard the provisions of subsection (4) of Section 24 reproducedabove clearly show that on the request of the complaint or the accused or the Court on its own motion may get the sample retested from the Central Insecticides Laboratory unless the sample has already been tested by 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, there is no sense in getting it retested from the same laboratory. In the case In hand, the sample was got directly tested from the Central Insecticides Laboratory. Faridabad because the State Insecticides Laboratory, Ludhiana could not test this 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 note worthy that in Municipal Corporation Delhi v. Ghisa Ram (supra) before the Supreme Court, the sample of curd was got tested from the Public Analyst and thereafter on the application of the accused, the other sample was sent for 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 Insecticides 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 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 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 Insecticides 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 be 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 Single Bench in Criminal Misc. No. 9274M of S.K. Khurana vs State of Punjab and anr. decided on 27.3.1992, 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 or the report of Insecticide Analyst as per provisions to subsection (4) of Section 24 and thus if the sample is directly got tested from the Central Insecticides Laboratory, will not result in any prejudice of the accused or debarring him from exercise his valuable right, especially when the State Laboratory has not the requisite facility for testing the contents of Penvel brand Fenvelerate insecticide.

This controversy is likely to crop up in number of cases in view of the contradictory opinions by the two Single Benches and is of vital importance. Consequently, it is considered a fit case where the decision 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 Insecticide 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 ?

Q. 2) Whether getting the sample 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.