N.S.Bawa vs State of Haryana

V.S. Aggarwal, J.

Once again what precipitates is the action of the authorities in delaying the filing of the complaint and the consequences thereto. Despite repeated pronouncements from this Court directing that complaints must be filed at the earliest so that a valuable right of an accused is not lost, it appears that the concerned authorities make sure that the proceedings are quashed.

In brief the relevant facts are that a sample of Dithane M45 was drawn by one Sukhpal Singh from M/s Kisan Sewa Centre who is dealer of insecticide. The manufacturer is stated to be M/s Indofil Chemicals. N.S. Bawa is the Regional Sales Manager of M/s Indofil Chemicals. The sample was sent to the State Quality Control Insecticide Laboratory and was declared to be misbranded. It is the case of the prosecution that notice under Section 24(2) of the Insecticides Act was sent to the accused with a copy of the report.

When the complaint was filed on 8.1.1992, the learned Chief Judicial Magistrate issued notice to the accused for 17.3.1992. On 17.3.1992 Ishwar Chand petitioner appeared and was admitted to bail. He submitted an application under subsection (3) of Section 24 of the Act. Notice to the other accused was issued for 18.5.1995.

The petitioners prayed that they should be discharged for the reason that the shelf life of the product had expired on 31.3.1992. The sample was not accepted by the Director, Central Insecticides Laboratory as the shelf life had expired. This request was rejected holding that notice under sub section (2) of Section 24 of the Insecticides Act had been issued to the dealer as well as the manufacturer. There was no prejudice caused and accordingly the petition was dismissed. As against the said order, the present revision petition has been filed.

The appreciate the said question in controversy, reference can well be made to Section 24 of the Insecticides Act, 1958 which reads as under :

"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 complinant 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."

The language of Section 24 of the Act is clear. It specifically prescribes that once the sample has been taken, then within 60 days, the report shall be submitted. Subsection (2) of Section 24 of the Act casts a duty on the Insecticides Inspector to deliver one copy of the report to the person from whom the sample was taken and retain the other copy of the same. For purposes of the present order, subsection (4) of Section 24 assumes importance. Under the relevant provisions if the sample has not been tested by the Central Insecticides Laboratory, the Court at the instance of the accused, may send the sample to the said laboratory. The provisions of sub section (4) of Section 24 are independent. The only restriction is that the sample should not have earlier been tested by the Central Insecticides Laboratory. It is the valuable right of the accused to have a second opinion. If such a right is lost, the only logical conclusion would be that prejudice is caused to the accused.

In the present case, the shelf life expired on 31.3.1992. Some accused were served for 17.3.1992. An application was submitted for testing of the sample from the Central Insecticides Laboratory. By the time it went to the said Laboratory, the shelf life had expired. The reason is obvious because there was delay in filing of the complaint. The petitioners rightly contend that they are prejudiced. Very close to the facts of the present case is the decision of this Court in the case of M/s Thakur Chemicals v. State of Haryana, 1996(2) RCR 285. It was held that on account of the negligence on the part of the complainant in filing of the complaint, the petitioner had been deprived of a valuable right to defend himself. Same view prevailed with this Court in Criminal Miscellaneous No. 10190M of 1990 S.K. Khurana v. State of Punjab and others, rendered on 21.4.1997. It was held :

"The consistent view of this Court has been that once the shelf life had expired and the complaint is filed subsequently, or the accused is not even informed about it, a valuable right under section 24 of the Insecticides Act is lost. He cannot seek another opinion of the Central Insecticides Laboratory. This Court in the case of Amarjit Singh and others v. State of Punjab, Criminal Miscellaneous No. 6876M of 1994, decided on 31.3.1997, 1997(2) RCR (Crl.) 420 held that when the complaint is filed after the shelf life or the shelf life expired before the accused could seek the remedy of sending the sample to the Central Insecticides Laboratory, prejudice is caused and the proceedings have to be quashed. The position herein is identical. The shelf life had expired by the time the complaint was filed or when the petitioner in the case of S.K. Khurana was served."

The facts of the present case are no different. By the time the sample was sent to the Central Insecticides Laboratory, the shelf life had expired. Therefore, the revision petition necessarily requires to be allowed.

For these reasons the petition is allowed. The impugned order passed by the learned trial Court is set aside. The petitioners are discharged.