National Farm Chemicals, Secunderabad vs State of Haryana

V.K. Jhanji, J.

This will dispose of Criminal Misc. No. 12594M of 1993 M/s. National Farm Chemicals v. State of Haryana.

This petition under Section 482, Cr.P.C. read with Article 227 of the Constitution of India has been filed for quashing of complaint, Annexure P1 under Section 29(3) of the Insecticides Act, 1968 (hereinafter referred to as the Act) and the Rules made thereunder for violating the provisions of Section 3(k)(i) of the Act, pending in the Court of Chief Judicial Magistrate, Hissar and the consequent proceedings arising therefrom.

As per the allegations made in the complaint, the Insecticides Inspector, Hissar, inspected the premises of M/s Ram Sarup Tuli Ram (Dealer) Hissar, on 23.3.1988 and took sample of Monocrotophos 36% manufactured by the petitioner firm. The sample was sent for analysis to the Senior Analyst, Quality Control Lab., Karnal and contents of the Monocrotophos were found to be 34.1% as against the prescribed limit of 36% and the sample was declared misbranded. On the basis of the analysis report, complaint under Section 29(3) read with Section 3(k)(i) of the Act has been filed against M/s. Ram Sarup Tuli Ram, Hissar (Dealer) and M/s. National Farm Chemicals, Secunderabad (Manufacturer). The complaint has been sought to be quashed inter alia on the following grounds :

(i) that the analysis report was supplied only to the dealer and no such copy was supplied to the petitioner firm. No intimation was ever sent to the petitioner firm that the sample of Monocrotophos manufactured by the petitioner firm was found misbranded;

(ii) that the sample was taken from the dealer''s shop on 23.3.1988 but the petitioner firm has come to know only when the Court of Chief Judicial Magistrate, Hissar, summoned the petitioner on 22.2.1992. This has resulted in manifest injustice to the petitioner as the manufacturing date of the insecticide was August, 1988 and its expiry date was July, 1989 and by the time the petitioner firm was summoned in the Court of Chief Judicial Magistrate on 22.2.1992, the shelf life of the product had already expired and there was hardly any time for the petitioner firm to get the second sample reanalysed from the Central Insecticide Lab. as required under Section 24 of the Act;

(iii) that the sample was not taken in accordance with the procedure laid down in the Act and Rules and according to the ISI specifications. In the present case, the sample was sent in the glass bottles whereas according to ISI specifications, the sample of Monocrotophos has to be taken in mild steel containers. Thus, the procedure was defective being contrary to the ISI specifications;

(iv) that no valid sanction has been granted for prosecuting the petitioner firm.

The learned counsel for the petitioner has contended that the complaint, Annexure P.1 is liable to be quashed on the aforesaid grounds. In support of his argument, he placed reliance on the case of M/s. Dwarka Dass Sham Lal v. State of Punjab, 1993(3) Recent Criminal Reports 583 .

In support of his third ground, counsel has referred to pamphlet ''Indian Standard Requirements for PACKING OF PESTICIDES Part 2 LIQUID PESTICIDES (Second Revision) issued by Bureau of Indian Standards, Manak Bhavan, 9 Bahadur Shah Zafar Marg, New Delhi. At page 2, Requirements for packing of liquid pesticides, Technical Grade has been given and product in question finds mention at Serial No. (vii) and against this requirement provided is Mild Steel Container.

In the return filed by the respondent, it has been stated that the sample was taken from the premises of M/s. Ram Sarup Tuli Ram who is the authorised dealer of the petitioner firm. After the sample was analysed, report of analysis was sent to the dealer, who applied for retesting of the second part of the sample and receipt of reanalysis was received by the Court of Chief Judicial Magistrate, Hissar and the same was found to be misbranded in reanalysis. It has further been stated that the petitioner firm had intentionally avoided the service of the summons and the petitioner firm had the knowledge about the expiry date of the insecticide. It has also been stated that the sanction order was given after due application of mind and after going through the contents of the file and as per the rules and procedure laid down in the Insecticides Act, 1968.

After hearing the learned counsel for the parties. I am of the view that there is no merit in this petition.

In order to appreciate the contentions of learned counsel for the petitioner, it is necessary to notice the relevant provisions of the Act. Subsection (6) of Section 22 and Section 24 of the Act read thus :

"Section 22. Procedure to be followed by Insecticide Inspectors.

XXX XXX XXX XX

XXX XXX XXX XX

(6) The Insecticide Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it and shall retain the remainder and dispose of the same as follows :

(i) one portion or container, he shall forthwith send to the Insecticide Analyst for test or analysis; and

(ii) the second, he shall produce to the Court before which proceedings, if any, are instituted in respect of the insecticide."

"Section 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 to the Insecticide Inspector or the Court before which any proceeding 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."

As is evident, subsection (6) of Section 22 of the Act provides that the Insecticide Inspector, on taking a sample, shall divide it into three portions; one to be given to the person from whom the sample is taken; one portion or container to be sent to the Insecticide Analyst for test or analysis and the second portion, he shall produce to the Court before which proceedings, if any, are instituted in respect of the insecticide.

Section 24 of the Act deals with the report of the Insecticide Analyst. After the sample is analysed, the Analyst is required to submit his report within sixty days in duplicate in the prescribed form and on receipt of the report, the Insecticide Inspector has to deliver one copy of the report to the person from whom the sample was taken and the other copy is to be used in prosecution, if any, in resect of the sample. Subsection (3) of Section 24 of the Act provides that the report signed by the 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, within twentyeight days of the receipt of the copy of report notified to the Insecticide Inspector in writing or to the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. Subsection (4) of Section 24 of the Act provide that if the sample has not been tested or analysed by Central Insecticide Laboratory and where a personunder subsection (3) has notified his intention of adducing evidence in controversion of the Insecticide Analyst''s report, the Court of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample to be produced before Magistrate for test or analysis in the Central Insecticide Laboratory and the report of the Central Insecticide Laboratory shall be conclusive evidence of the facts stated therein.

In the present case, sample was taken from M/s. Ram Sarup Tuli Ram who is the authorised dealer of the petitioner firm. One portion of the sample was given to the dealer as provided under subsection (6) of Section 22 of the Act and the second portion was sent to the Senior Analyst, Quality Control Laboratory, Karnal and on analysis, it was found to be misbranded. Report was sent to the dealer who made an application before the Chief Judicial Magistrate, Hissar for getting the third sample reanalysed from the Central Insecticide Laboratory. His request was entertained and the sample was got reanalysed and was again found to be misbranded in reanalysis. In this view of the matter, the contention of learned counsel for the petitioner that the petitioner was deprived of getting the sample retested from the Central Insecticide Laboratory, cannot be accepted. Combined reading of sub section (6) of Section 22 and Section 24 of the Act, makes it abundantly clear that it provides for making three portions of the samples, one to be given to the person from whom sample is taken, second to be sent to the Public Analyst and the third to be kept for production in Court in prosecution, if any, meant for reanalysis on the asking of the Court, either of its own motion or in its discretion on the request made by the complainant or the accused. As noticed above, all the three samples taken in the present case, were consumed; one was given to the dealer at the time of taking the sample, second was sent to Quality Control Laboratory, Karnal and the third was produced in Court at the request of the dealer and was got reanalysed from the Central Insecticide Laboratory and the sample was found to be misbranded in reanalysis. The report of the Central Insecticide Lab. is already on the record and, therefore, no prejudice has been caused to the petitioner. It is worth noticing at this stage that the present complaint was filed on 23.3.1988. Manufacturing date of the insecticide was August, 1988 and expiry date was July, 1989 and the petitioner firm could be served only in the year 1992 and it was only thereafter that an objection was raised that the petitioner firm was summoned after the shelf life of the product had expired. This objection cannot be allowed to be raised because the sample was got reanalysed at the request made by the dealer of the petitioner firm.

There is also no merit in the contention of learned counsel for the petitioner that there is no application of mind while giving sanction. Sanctioning JUDGMENT has been annexed as Annexure P2 with this petition, reading of which shows that the Director, Agriculture, Haryana, while giving sanction, has taken into consideration the relevant material available on record and only after that sanction has been given for prosecution against the dealer as well as the manufacturer.

Counsel is also not correct in contending that the complaint has been filed only against the dealer and not against the petitioner firm who is the manufacturer. I have gone through the complaint and I find that the same is not only against the dealer but also against the petitioner firm i.e. M/s. National Farm Chemicals as is clear from paragraph 8 of the complaint which is to the following effect :

"In view of the foregoing submissions the respondent M/s. Ram Swarup Tuli Ram, Hissar (stockist) and M/s. National Farm Chemical, Secunderabad (manufacturer) has contravened the provisions of Section 29 of the Insecticides Act, 1968 and rules made thereunder by selling, stocking and manufacturing misbranded Insecticides as defined under clause 3(k)(i) of the Insecticides Act, 1968 and has thus rendered himself liable for action for committing the said offence, which is punishable under Section 29 of the said Act."

As regards reference to the pamphlet aforesaid made by counsel for the petitioner, suffice it to say that the pamphlet only provides as to the manner in which the insecticide has to be packed by the manufacturer. It nowhere provided that while taking the sample, this requirement as mentioned in this pamphlet, is to be followed by the Insecticide Inspector.

Petitioner cannot drive any help from M/s Dwarka Dass Sham Lal''s case (supra) as the same is distinguishable on facts.

For the reasons recorded above, this petition is dismissed being devoid of any merit. No costs.