Ravi Kant vs State of Punjab

P.K. Jain, J.

The petitioner has filed this petition under section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution for quashing a complaint (Annexure P.1) filed under sections 3k(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 (for short ''the Act'') read with Rule 27(5) of the Insecticides Rules 1971, pending in the Court of Sub Divisional Judicial Magistrate, Abohar, and all the consequent proceedings arising therefrom.

The necessary facts for the disposal of this petition are that the petitioner is a licensee under the provisions of the Act and is dealing with the sale of certain insecticides including Monocrotophos 36% SL. On July 24, 1989, the Insecticides Inspector purchased 3 sealed containers, each containing 0.5 Kg. of the said insecticide, manufactured by M/s. Kissan Agro Chemicals, Muzaffar Nagar, by way of sample. The manufacturing date of the said insecticide was June, 1989 and expiry date November, 1990. The sample, on analysis, was found to be misbranded. A showcause notice along with copy of the report of the Analyst was sent to the petitioner. In replyAnnexure P. 4, the petitioner did not accept the report to be correct and requested the department to get the second sample tested from the Central Laboratory. This request was turned down by the department by letter dated 23.10.1989. After obtaining necessary consent (Annexure P.3), the impugned complaint was filed on August 29, 1991 in the Court of Sub Divisional Magistrate, Abohar.

The petitioner has challenged the said complaint on the grounds that he has been deprived of his right conferred by Section 24(4) of the Act inasmuch as the complaint itself was filed after the expiry of the shelf life of the insecticide in question and that the provisions of Section 30 have 31 and not been complied with.

Notice was issued to the respondent State. In its reply, the factual position has not been disputed. It has been stated that the showcause notice was served upon the petitioner vide letter dated 19.9.1989, that the request of the petitioner dated 3.10.1989 for retesting was received which was considered and rejected by the Chief Agriculture Officer, Ferozepur, and that intimation thereof was sent to the petitioner vide letter dated 24.10.1989 (Annexure Rule 2). It has been admitted that the complaint was filed on 29.8.1991 after the expiry of the shelflife of the sample. It has been further stated that the provisions of Sections 30 and 31 of the Act have been duly complied with before filing the present complaint.

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

Mr. Ravinder Chopra, Advocate, learned counsel for the petitioner, has confined his arguments to only one of the grounds of challenge i.e. that the complaint was filed after the expiry of the shelf life of the insecticide in question which has deprived the petitioner of his right under section 24(4) of the Act and the same is fatal to the complaint. It has been argued by the learned counsel that immediately on receipt of the showcause notice, the petitioner had demanded that the second sample be sent for retesting to the Central Laboratory but the request was not acceded to, although there was sufficient time in the expiry of the shelf life of the insecticide in question. On the other hand, Shri Ramanjit Singh, learned Assistant A.G., Punjab, has argued that the request of the petitioner for retesting was considered and was rejected by the department and the intimation thereof was given to the petitioner. It has been further argued by the learned AAG that no prejudice has been caused to the petitioner in filing the complaint after the expiry of the shelf life of the insecticide and the complaint ought not be quashed.

I have considered the respective arguments advanced at the Bar.

The relevant portion of Section 24 of the Act may be noticed as under :

"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 Insecticides 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.

(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 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 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."

Thus, 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 showcause notice, and secondly, to challenge the same and to make a request before the Court for reanalysis 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 or the manufacturer 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 or the manufacturer that the reanalysis 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 person to challenge the correctness of the report of the Analyst by forwarding the counterpart 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 v. Ghisa Ram, AIR 1967 SC 970, 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 :

"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 Act, on identical facts and circumstances, was quashed by this Court in Mewa Singh v. Prithipal Singh, 1994(1) Recent Criminal Reports 94 and M/s. Raj Hans Chemicals v. State of Punjab, 1994(2) Recent Criminal Reports 139 . Similar views were expressed by this Court in M/s. Hindustan Pulverising Mills v. State of Haryana, 1992(2) Recent Criminal Reports 313 , National Organic Chemicals Ltd. v. State of Haryana, 1992(1) Recent Criminal Reports 157 and M/s. Jai Chemical v. State of Punjab, 1994(3) Recent Criminal Reports 610 . This very view has been expressed by this Court in M/s. Thakur Chemicals v. State of Haryana, Criminal Misc. No. 11102M of 1995, decided on March 27, 1996.

In the present case, it is not disputed that the manufacturing date of the insecticide in question was June 1989 and expiry date November 1990. It is also not disputed that the impugned complaint was filed on August 29, 1991 after the expiry of the shelf life of the said insecticide. The necessary consequence is that if the complaint itself has been filed in a court after the expiry of the shelf life of the insecticide, it will be taken that the accused has been debarred of his valuable right to get the counter sample retested, because due to the expiry of the shelf life of the insecticide, its ingredients are bound to deteriorate or become less active. Service of notice regarding the sample having been found misbranded before the expiry of the date of the shelf life of the insecticide, thus, is of no consequence. In these circumstances, the filing of the complaint after the expiry of the shelf life is, in itself, fatal to the complaint. This view finds affirmation in Bhai Manjit Singh, Managing Director, Montari Industries Ltd. v. State of Punjab, 1992(1) Recent Criminal Reports 244 , M/s. Dwarka Dass Sham Lal v. State of Punjab, 1993(3) Recent Criminal Reports 583 , and Mewa Singh''s case (supra). Therefore, I have no hesitation in holding that by filing the complaint after the expiry of the shelf life of the insecticide in question, the petitioner has been deprived of his valuable right conferred by Section 24(4) of the Act, which in itself is fatal to the complaint.

Consequently, I accept this petition and hereby quash the complaint (Annexure P. 1) and the consequent proceedings thereon pending in the Court of Sub Divisional Magistrate, Abohar.