Pesto-Chem (India) Ltd. vs State of Punjab

K.K. Srivastava, J.

This is a petition filed under Section 482 of the Code of Criminal Procedure seeking the quashing of the complaint dated 4.9.1993, copy Annexure P1, filed by respondentInsecticide Inspector Goniana Mandi, District Bhatinda Baldev Singh in the Court of Chief Judicial Magistrate, Bhatinda under Sections 3k(i), 17, 18, 29 and 33 of the Insecticides Act, 1968 (for short the Insecticides Act) read with Rule 27(5) of the Insecticides Rules, 1971.

As per the averments made in the impugned complaint, M/s Satish Kumar and Company, Goniana Mandi, owned by Satish Kumar, was dealing in Insecticide/Pesticide and was holding a valid licence issued by the Licensing Authority i.e. Chief Agriculture Officer, Bhatinda. The Insecticides Inspector Baldev Singh inspected the shop of M/s Satish Kumar and Co., Goniana on 16.8.1991 in the presence of Shri Sat Pal, Agriculture Officer, Goniana Mandi. Out of 20 litres of Quinalphos 25% E.C., he selected on litre of Quinalphos as representative sample out of 20 litres and made three portions of the sample of 250 ml. each. The batch number of the said Insecticide was 14 and it was manufactured in July 1991 and was due to expire in June 1992. It was manufactured by the petitioner M/s Pesto Chem. India. One of the samples drawn according to the rules was sent for analysis to the Insecticide Testing Laboratory, Ludhiana vide letter No. TA44 dated 22.8.1991. On analysis the said sample was found misbranded as it did not conform to the prescribed active ingredients contents. The active ingredients were found 3.81% instead of 25%. A copy of the report was delivered to the dealer and the manufacturer with a show cause notice as per requirement of Section 24(2) of the Insecticides Act vide letters issued by the Chief Agriculture Officer, Bhatinda Nos. 16402 dated 3.10.1991 and 17333 dated 23.10.1991 respectively. Replies were also received from the manufacturer and the dealer which are dated 18.10.1991 and 24.10.1991. The dealer was conveyed by the Chief Agriculture Officer, Bhatinda with reference to his reply that as desired by him to reanalyse the sample, he may apply for the same through the concerned Court. Memo No. 4869 dated 27.3.1992 in this regard was sent, a copy of which was enclosed with the complaint. The complaint was filed after necessary sanction was granted by the Additional Director of Agriculture (Plant Protection) Punjab, Chandigarh against Satish Kumar and the petitioner M/s PestoChem India.

Petitioners pray for quashing of the impugned complaint and proceedings flowing therefrom on the ground that the shelflife of the insecticide had expired in June 1992, whereas the impugned complaint was filed on 4.9.1993 i.e. much after the expiry date of the said insecticide. The petitioners were, therefore, deprived of their valuable right conferred on them by virtue of Section 24(3) and (4) of the Insecticides Act.

Notice was issued to the respondent who filed written statement wherein it was contended that the sample was drawn after following the requisite rules and the copy of the report of the Insecticides Testing Laboratory was duly sent to the dealer and the manufacturer and as per request made by the dealer it was informed that it (dealer) could apply to the concerned Court for getting the sample reanalysed.

Learned counsel for the petitioners placed reliance on Surinder Pal Singh Saini v. State of Punjab, 1996(4) All Instant Judgments 714 wherein a Single Bench of this Court ordered the complaint to be quashed where the complaint was filed after the expiry of the shelflife of the sample as being violative of Section 24 of the Insecticides Act.

Learned counsel for the petitioners placed reliance on M/s Thakar Chemicals v. State of Haryana, 1997(3) All Instant Judgments 419 wherein it was held that after the expiry of shelflife of insecticide the accused could not make a request for second sample for being sent for reanalysis by the Central Insecticides Laboratory and the same deprives the accused of his valuable rights under Section 24 of the Insecticides Act and the complaint was ordered to be quashed.

In the instant case, it is not in dispute that the petitioners had approached with a request for sending the second sample for reanalysis by the Central Insecticides Laboratory well within the expiry period of the sample of the insecticide in question, but the same was not acted upon and the second sample was not sent for reanalysis to the Central Insecticides Laboratory. It cannot be said that the petitioners were at fault in not making a request in this regard.

In M/s Artee Minerals v. State of Punjab, 1997(4) RCR (Criminal) 621 a Single Bench of this Court while dealing with this matter observed in para 9 as under :

"So far as M/s Evergreen Chemical Enterprises the partnership concern is concerned, the contention of the petitioners'' counsel was that as against it the proceedings must be quashed because the complaint was filed just before the shelf life was to expire. By the time the petitioners were served, the shelf life had expired. A valuable right has lost of the petitioners. In this regard reference to Section 24 of the Act becomes necessary which reads :

"24. 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 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."

Perusal of the above said provision would reveal that there are two rights available with the concerned person. He may request after notice for the second sample to be tested or may request the Court for the said sample to be sent for reanalysis to the Central Insecticides Laboratory. This is a valuable right and a reminder that complaints should be filed at the earliest. In the case of Ravi Kant v. State of Punjab, 1996(3) Recent CR 714 the complaint was filed after the expiry of the shelf life. The proceedings were quashed because a valuable right of the said accused/petitioner had been lost. The Supreme Court had also the occasion to observe in this direction in the case State of Punjab v. National Organic Chemical Industries Ltd., 1996(10) JT SC 480. Stress was laid that there are two rights available with the said accused and he can insist that the second sample be tested from the Central Insecticides Laboratory. The second option can be exercised after the complaint has been filed in Court. The Supreme Court held :

"At that stage, two options are open to the accused. The accused is entitled to have one copy of the sample entrusted to him to have it notified to the Court for proving to be contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the Court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under subsection (3) of Section 24. The other option is, after the complaint is laid in the Court, the copy of the sample that is lodged with the Court by the Insecticide Inspector, would be requested to be sent by the Court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, consent (contents ?) and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court."

In the present case of M/s Evergreen Chemical Enterprises, by the time the petitioner company was served, the shelf life had expired. A valuable right was deprived of the said petitioner. Therefore, the proceedings necessarily has to be quashed as a whole in Criminal Miscellaneous No. 5517M of 1993."

In view of the settled position of law, the petitioners in the instant case were deprived of a valuable right of getting the second sample of insecticide in question reanalysed by Central Insecticides Laboratory as provided by Section 24 of the Insecticides Act and as such, the complaint and the proceedings are liable to be quashed qua the petitioners. Resultantly, the petition is allowed. The impugned complaint and the proceedings flowing therefrom are quashed qua the petitioners.