Om Prakash Beej and etc. vs State of Haryana

P.K. Jain, J.—M/s. Om Parkash Beej, Petitioner No. 1 is a proprietorship firm of Sh. Om Parkash petitioner No. 2. They are the dealers/stockists of an insecticide known as Aldrin 30% E. C., being manufactured by M/s. Agro Chemical, Jaipur.

On 17-6-1992, the Insecticide Inspector inspected the business premises of the petitioner and purchased a sample of the insecticide Aldrin 30% E. C., the manufacturing date of which was October 1991 and expiry date was September, 1993, in accordance with the provisions of the Insecticides Act, 1968 (herein after referred to as the Act) and the rules framed thereunder. On being analysed the sample was declared misbranded by the Senior Analyst Quality Control Insecticides Laboratory, Karnal vide his report dated 13-7-92 (Annexure P. 15) Deputy Director of Agriculture, Hisar issued a show cause notice dated 31-3-93 (Annexure P. 3) which was received by the petitioners on 7-4-1993. The petitioners sent a reply dated 8-4-93 (Annexure P. 4) by registered post whereby they challenged the correctness of the report of the Senior Analyst and requested for retesting of the counter sample. This request was rejected by the department vide letter D/- 6-5-1993 (Annexure R. 4). After obtaining the necessary sanction to prosecute D/- 20-5-93 (Annexure P. 3) a complaint (Annexure P. 1) was filed on 15-6-93 against the petitioners as well as the manufacturers. On the same date Chief Judicial Magistrate, Hisar took cognizance and summoned the petitioners vide order (Annexure P. 2) for 15-9-93.

The petitioners have filed the present petition u/s 482 of the Code of Criminal Procedure to quash the complaint (Annexure P. 1), the summoning order (Annexure P. 2) and the subsequent proceedings thereon. It has been alleged in the petition that the respondents did not accept the request of the petitioner to send the counter-sample for re-testing � to the Central Laboratory vide letter D/- 6-5-93 (Annexure R. 4), then the complaint was filed after expiry of the shelf life of the complaint and thus the petitioners have been deprived of valuable right conferred u/s 24 of the Act which is fatal to the present prosecution.

Notice of motion was given to the respondent. In reply the factual position as narrated above has not been disputed. It has been stated that the sample was drawn in accordance with law which was found to be misbranded by the Senior Analyst; that the petitioner never requested for re-testing of the counter-sample and the present petition is liable to be dismissed. It has been admitted that the Deputy Director Agriculture, Hisar had sent a reply to the letter of the petitioners dated 8-4-93 (Annexure P, 4) vide letter No. 4667 D/- 5-5-1993 (Annexure P. 4).

I have heard the learned counsel for the parties and have perused the record.

Sh. Suman Jain, Advocate learned counsel for the petitioner has argued that the sample of the insecticide in question was taken on 17-6-92, the manufacturing date of which was October 1991 and the expiry date was September, 1993. It has been further argued by the learned counsel that the report of the Analyst D/- 13-7-92 (Annexure P. 15) was sent to the petitioners vide show cause notice dated 31 -3-93 (Annexure P. 3), which was received by the petitioners on 7-4-1993. It has been further pointed out by the learned counsel that the petitioners did not accept the report (Annexure P. 15), disputed the same and sent a reply (Annexure P. 4) by registered post on 8-4-93 requesting the respondent to send the counter sample for re-testing to the Central Laboratory but the said request was turned down by the respondent vide letter D/- 6-5-93 (Annexure P. 4). It has been pointed out by the learned counsel that the complaint in question was filed on 15-6-93 and the petitioners were summoned for 15-9-93 i.e. when the shelf life of the Insecticide in question had already expired. It has been argued that even if all the allegations in the complaint are accepted to be correct, a valuable right of the petitioners granted u/s 24 of the Act stands defeated and it in itself is good ground to quash the complaint. In support of this contention, the learned counsel has placed reliance upon a judgment of this Court in Criminal Misc. No. 11102-M of 1995 decided on March 27, 1996* and the decisions referred to therein.

On the other hand, Sh. P. S. Sullar, learned Assistant Advocate General, Haryana, has argued that the petitioners had been informed well in time regarding the report of the Analyst and proper steps ought to have been taken by them to apply to the Court for exercising a right u/s 24 of the Act, since the re-analysis of the counter sample could be made only under the orders of the court. Thus it has been contended that the petitioners are not entitled to the benefit of their own omission and the present petition is liable to be dismissed.

I have carefully considered the respective arguments advanced at the Bar.

To appreciate the respective contentions of the learned counsel for the parties, the relevant portion of Section 24 of the Act may be noticed as under::-

(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 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.

Unless the sample has already been tested or analysed in the Central Insecticide Laboratory, where a person has under Sub-section (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 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.

It is thus obvious from the above provisions that the petitioners had a right to get the sample reanalyzed since they were informed that the sample was found mis-branded. Admittedly, immediately on the receipt of the show cause notice (Annexure P. 3) along with the report (Annexure P. 15); the petitioners intimated to the respondents vide their letter (Annexure P. 4) that the report of the analysis was not acceptable to them and the counter sample be got reanalysed from the Central Laboratory. This request was turned down by the department vide letter (Annexure P. 1) on the ground that the permission for re-analysis may be obtained from the Court. It is not disputed that the complaint in question was filed on 15-6-93 wherein the present petitioners were summoned for 15-9-1993. It is also the admitted case of the petitioners that the manufacturing date of the insecticide in question was October, 1991 and the expiry date was September, 1993. Thus it becomes clear that the petitioners were summoned for a date by which the shelf life of the insecticide in question had already expired.

There is no provision under the Act that the dealer can get the sample re-tested before launching prosecution against him except in Sub-section (3) whereby he can challenge the report of the Insecticide Analyst only. Section 24 of the Act confers two rights i.e. the right to challenge the correctness of the report of the analysis on the receipt of the show cause notice, and secondly to challenge the same and to make a request before the Court for re-analysis of the counter sample after the complaint is filed. The provisions of this section simply provide that in case a written request is made by the dealer expressing its intention to controvert the report of the Analyst, the report shall not be conclusive evidence of the facts contained therein. Therefore, the service of the notice regarding the sample being misbranded or intimating the dealer that the re-analysis can be ordered by a Court before the date of expiry of shelf life of the insecticide, is of no consequence. The material requirement of the Act is that the complaint should be filed and the accused should be served well in time before the expiry of the shelf life of the insecticide in question so as to enable the accused persons to challenge the correctness of the report of the analyst by forwarding the counter part of the sample to the Central Laboratory. If this right of an accused under the Act is violated by inaction or omission on the part of the department, the same is fatal to the prosecution.

In Municipal Corporation of Delhi Vs. Ghisa Ram, , due to inordinate delay in instituting the prosecution, a valuable right conferred by Section 13(2) of the Prevention of Food Adulteration Act was taken away. In these circumstances, the apex Court made the following observations (Para 7):-

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 charge 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.

While placing reliance upon the aforesaid judgment a complaint under the Insecticides Act, on identical facts and circumstances, was quashed by this Court in Mewa Singh v. Prithipal Singh (1994) 1 RCR 94 and Raj Hans Chemicals v. State of Punjab (1994) 2 RCR 139. Similar views were expressed by this Court in Hindustan Pulverising Mills v. State of Haryana (1992) 2 RC 313, National Organic Chemicals Ltd. v. State of Haryana (1992) 1 RCR 157 and Jai Chemical v. State of Punjab (1994) 3 RCR 610.

In view of the law and the facts of the present case as discussed above, it becomes clear that on account of the sheer negligence on the part of the respondents, the petitioners have been deprived of the valuable right granted u/s 24 of the Act to defend themselves in the proceedings initiated on the basis of the complaint (Annexure P. 1)-. This fact in itself is fatal to the. present complaint.

Consequently, I accept this petition and hereby quash the complaint Annexure P. 1, consequent summoning order (Annexure P. 2) and further proceedings thereon passed and pending in the Court of the Chief Judicial Magistrate, Hisar, qua the petitioners.