M.N.Murli Kumar vs State of Punjab

M.L. Singhal, J.

Shri D.S. Walia, Insecticide Inspector raided the business premises of Ms Ahluwalia Khad Store, Sri Hargobindpur on 9.12.1992. They were dealers in insecticides/weedicides under the licence issued to them by Chief Agricultural Officer, Gurdaspur. Shri Gurbax Singh was the proprietor of the said business responsible to the Firm for the conduct of the business of the firm. At the time of raid, Shri Gurbax Singh was present at the business premises. Weedicide namely 4 Ethyl Ester 34% EC Heera44 batch No. 71 was lying in the business premises for sale to the farmers mean for use in agricultural fields. After disclosing his intention to Shri Gurbax Singh that he was Insecticide Inspector authorised to seize sample of insecticide/weedicide/pesticide from their possession through notice with a view to have the same analysed from the Insecticides Analyst/Central Insecticide Laboratory, he seized 3 sealed tins of 24 D Ethyl Ester 34% EC Heera44, batch No. 71 containing 1 litre each and paid him Rs. 300/ as the price thereof. Shri Gurbax Singh gave him receipt in token of receipt of that amount and the supply of 3 sealed tins containing the said insecticide under his signatures. Each of the sealed tins so purchased was put in dry and clean polythene bags in the same condition in which slip was also put which they were. In each polythene bag formation was signed by Shri Dalip Singh Walia, Insecticide Inspector. Each of the polythene bags was secured by means of thread and was sealed with seal bearing impression No. 18 Fertilizer Inspector, Gurdaspur. One of the sealed tins was handed over to Shri Gurbax Singh. One sealed tin was deposited in the office of Chief Agricultural Officer, Gurdaspur for record. One sealed tin was sent to the Senior Analyst, Insecticide Testing Laboratory, Department of Agriculture, Punjab, Bathinda for analysis through Shri Sukhwinder Singh. On analysis, sample of weedicide was found to be misbranded and not conforming to the required specifications. According to the analysis report, the percentage of active Ingredients was 26.67% EC as against 34% EC. Sample of weedicide was thus, deficient in active ingredients by 7.33% EC.

M/s. Ahluwalia Khad Store, Shri Hargobindpur was dealer in this weedicide. They had purchased this weedicide from National Pesticides, Jalandhar Road, Batala through is proprietor Anil Kumar (Distributor). This weedicide had been manufactured by M/s. Hindustan Pulverising Mills, Delhi. This weedicide had percolated to the dealer in this manner from the manfacturer. After the receipt of the analysis report, sanction was obtained as envisaged by Section 31(1) of the Insecticides Act, 1968 for launching prosecution against the accused from the Joint Director, Agriculture. Weedicide is covered under the Schedule of Insecticides Act, 1968 and its chemical name is 24D Ethyl Ester 34% EC manufactured by M/s. Hindustan Pulverising Mills, G.T. Karnal Road, Delhi under a manufacturing licence. Shri Dalip Singh Walia instituted complaint under sections 3(k)(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 against the Dealer, Distributor and Manufacturer in the Court of Chief Judicial Magistrate, Gurdaspur.

Through this Criminal Miscellaneous Petition filed under section 482 Cr.P.C. read with Article 227 of the Constitution of India, the manufacturer has prayed for its quashment. It has also been prayed that every other proceedings taken in the complaint subsequent to its institution be also quashed.

It was submitted by the learned counsel for the petitioner that the sample of weedicide was taken on 9.12.92. Complaint was instituted on 5.1.1994. Shelf life of the weedicide expired in October, 1994. By the time the manufacturer was summoned, the shelf life of the weedicide had expired. It would have been an exercise in futility in the Manufacturer had requested the court for reanalysis of the sample after appearance before the Court when the shelf life of the weedicide had already expired. It was submitted that the valuable right granted to the accused under section 24 of the of the Insecticides Act was taken away for no fault of the accused, Section 24 of the Insecticides Act reads as follows :

"24. Report of Insecticide Analyst :

(1) The Insecticide Analyst to whom a sample of any 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 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 controversion 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 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.

(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."

In support of this submission, reliance was placed by him on M/s. Jai Chemicals v. State of Punjab, 1994(3) RCR 610 , S.K. Ahooja v. State of Haryana, 1989(1) RCR 596 and Sant Lal and another v. State of Haryana, 1995(2) RCR 101. In M/s. Jai Chemicals (supra) it was held that the petitioners had a right to get the second sample tested from the Central Insecticides Laboratory. In S.K. Ahooja''s case (supra) it was held that the petitioner having not been given an opportunity to controvert report and the prosecution having been launched more than two years after the sample was purchased by the Insecticide Inspector, the prosecution must fail. In Sant Lal and another, case (supra) it was held that the complaint was liable to be quashed where the same was instituted after the shelf life of insecticides had expired and the accused was deprived of having the second sample reanalysed from the Central Insecticides Testing Laboratory.

Learned Assistant Advocate General, Punjab on the other hand submitted that vide letter No. 1313, dated 16.2.1993 show cause notice was issued by the Chief Agricultural Officer, Gurdaspur to the dealer. Dealer gave reply to the show case notice vide letter dated 26.2.1993. Manufacturer was called upon to explain position by appearing personally before the Chief Agricultural Officer, Gurdaspur on 15.3.1993 at 11.30 a.m. Manufacturer was also informed that request for reanalysis of sample may be made to the Court in view of section 24(3),(4) of the Insecticides Act, 1968 as this request could be considered by the Court. Annexure R1 is a letter written to this effect by the Chief Agricultural Officer, Gurdaspur to the Manufacturer. Senior Analyst, Insecticide Testing Laboratory signed the analysis report on 30.1.93, within 28 days of the receipt of copy of the analysis report, request for reanalysis could have been made in terms of Section 24(3) of the Insecticides Act. There is nothing on record if the manufacturer made any request for reanalysis to the court after they had been told that they could make request for re analysis of the sample to the court.

Learned counsel for the petitioners submitted that request for re analysis could not have been made before the court prior to the institution of the complaint. In support of this submission, he drew my attention to the provisions, of Section 24(3) of the Insecticides Act, 1968 which reads as follows :

"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 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."

In support of this submission, he drew my pointed attention to the words "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." Accused did not take steps to have the sample reanalysed after the receipt of communication dated 3.3.93, Annexure R1.

If the interpretation suggested by the learned counsel for the petitioner is accepted, then the purpose for which the Act was enacted would be defeated. While interpreting the provisions of a Statute the Court should keep in mind that the language of a statute should be interpreted in a manner that the purpose for which the statute was enacted is not defeated but advanced. In my opinion, narrow interpretation sought to be put on the language of section 24(3) of the Act should be avoided. In this case, therefore, it cannot be said that the right granted to the accused by the provisions of Section 24 was defeated by any default on the part of the prosecution. Accused could have gone to Chief Judicial Magistrate, Gurdaspur and requested him that the other portion of the sample be sent for analysis to the Central Insecticides Laboratory. If the Chief Judicial Magistrate had declined his request, his bona fides at least would have stood established. It was next submitted by the learned counsel for the petitioner that M.N. Murli Kumar should not have been arraigned as an accused as there is no averment in the complaint that he was incharge of the business of the company and was responsible to the company for its business and he was Chief Chemist. Section 33 of the Insecticides Act deals with the offences by Companies. Section 33 reads as follows :

"33.Offences by companies : (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, or was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall liable to be proceeded against and punished accordingly.

Provided that nothing contained in this subsection shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) xx xx xx xx xx xx"

It was submitted by the learned counsel for the petitioner that there is no averment in the complaint that M.N. Murli Kumar was incharge of or was responsible to the company for the business of the company at the time when the offence was committed and in the absence of this averment, he could not have been arraigned as an accused. It is true that there is no such averment in the complaint. It is equally true that M.N. Murli Kumar was Chief Chemist, in the company. As Chief Chemist he must have been responsible to see that the insecticide/weedicide/pesticide manufactured was in conformity to the standards as laid down in the rules framed under the Act. As Chief Chemist he must have been under an obligation to see that no misbranded insecticide/weedicide/pesticide was marketed. In my opinion, it should be left to be determined by the Magistrate as to whether M.N. Murli Kumar was or was not incharge of the business of the company and was responsible to the company for the conduct of the business of the company.

In the exercise of inherent powers vesting in this Court by virtue of the provisions of Section 482 Cr.P.C. this Court can quash criminal prosecution but in the rarest of rare cases. Instant is not one of such cases where criminal prosecution should be scuttled at the threshold.

For the reasons given above, this Criminal Misc. petition fails and is dismissed. Trial Court its, however, directed to be liberal in granting exemption from personal appearance to the petitioners before it keeping in view that they would be coming all the way from Delhi to Gurdaspur.