Ravinder Kumar and Brothers vs State of Punjab

P.K. Jain, J.

M/s Ravinder Kumar and Brothers, a partnership firm consisting of four partners, has filed the present petition under section 482 of the Code of Criminal Procedure for quashing the complaint (Annexure P1) filed under Section 29 read with sections 3(k)(1), 17, 18 and 33 of the Insecticides Act, 1968 (hereinafter referred to as the Act) and Rule 10 of the Insecticides Rules, 1971 read with Section 420 of the Indian Penal Code and the summoning order dead 28.1.1993 (Annexure P2) passed by the Chief Judicial Magistrate, Amritsar.

On 25.6.1991, Insecticides Inspector Manjit Singh inspected the shop of the petitioner firm and purchased a sample of weedicide named Butachlor 50% E.C. after serving a notice in the prescribed form and intimating the purpose for which the same was being purchased. The sample was sent to the Senior Analyst, Insecticide Testing laboratory, Department of Agriculture, Punjab and the same was found to be misbranded as it contained 40.80% E.C. instead of 50% E.C. of Butachlor.

A show cause notice dated 24.8.1991 was issued by the Chief Agriculture OfficercumLicensing Officer, Amritsar to the petitioner firm to which a reply dated 16.9.1991 was sent thereby intimating inter alia that the test report of the Senior Analyst was not acceptable to them and they wanted to adduce evidence to controvert the said report under section 24(4) of the Act and request was made to send the second sample for retesting to the Central Government Laboratory. However, the Chief AgriculturecumLicensing Officer by order dated 20.9.1991 cancelled the licence of the petitioner firm, which order was set aside and the licence was restored by the Appellate Authority vide order dated 16.11.1992 (Annexure P.4). After obtaining consent/sanction for prosecution, Insecticides Inspector Anjala filed the complaint (Annexure P.1) dated 17.12.1992 in the court of Chief Judicial Magistrate, Amritsar against the petitioner firm through its partners as well as manufacturer for the offences mentioned above. The Chief Judicial Magistrate, Amritsar vide order dated 28.1.1993 took cognizance of the complaint and summoned the petitioner firm and its partners as well as the manufacturer for 1.3.1993.

The petitioners moved an application (Annexure P.7) under section 24(3) (4) of the Act for sending the counterpart of the sample to the Director Central Insecticides Laboratory for analysis. This application was opposed by the complainant on the grounds that the shelf life of the insecticide had already expired, although it was admitted that in response to the show cause notice issued to the petitioner firm they had expressed their intention to controvert the report of the Senior Analyst and had requested for sending counterpart of the sample for analysis by the Central Insecticides Laboratory. The Chief Judicial Magistrate rejected this application by order dated 8.7.1993 (Annexure P.9). Hence the present petition.

Notice of motion was given to the respondent. In reply it has been stated that the petitioners have violated the provisions of sections 3(k)(1), 18 and 19 of the Act by selling and stocking for sale the misbranded weedicide Butachlor 50% E.C.; that a show cause notice alongwith copy of the report of the Analyst was served upon the petitioners and they were told well in time that reanalysis of the counter sample could be allowed only by a court. It has been further stated that the prosecution has been launched after obtaining legal sanction as required by law and no ground is made out to quash the complaint.

I have heard the learned counsel for the parties and have gone through the record.

Shri Navkiran Singh, Advocate, learned counsel for the petitioners has pointed out that the sample of the insecticide in question was taken on 25.6.1991 and expiry date was March 1993. It has been further pointed out by the learned counsel that the report of the Analyst is dated 12.8.1991 which was sent to the petitioners with the show cause notice dated 24.8.1991 to which a proper reply dated 16.9.1991 (Annexure P.(3) was sent and it was made clear that the report of the Senior Analyst was not acceptable to the petitioners and they wanted to adduce evidence to controvert the same and request was also made to send the second part of the sample for retesting to some other Central laboratory. It has also been pointed out by the learned counsel that the complaint (Annexure P.1) was filed on 17.12.1992, cognizance of the offence was taken on 28.1.1993 by the Chief Judicial Magistrate and the petitioners were summoned for 1.3.1993 by which time the shelf life of the insecticide had expired. While making a reference to the provisions of Section 24 of the Act, learned counsel for the petitioners has argued that a valuable right to controvert the report of the Senior Analyst, thus, has been denied by the inaction and omission on the part of the complainant in filing the complaint after the lapse of long period of the receipt of the reply sent by the petitioners and even long after obtaining of he sanction on 6.11.1991 (Annexure P.6). Thus, it has been argued that the complaint is liable to be quashed on this short ground. In support of this plea the learned counsel has placed reliance upon two judgments of this Court rendered in Mewa Singh v. Prithipal Singh, 1994(1) RCR 94 and M/s Raj Hans Chemicals v. State of Punjab, 1994(2) RCR 139 .

On the other hand Shri S.S. Randhawa, learned Deputy Advocate General for the State of Punjab has argued that the petitioner firm was informed well in time regarding the report of the Analyst as well as the fact that reanalysis of the counter sample could only be made under the orders of the court and it was the duty of the petitioners to move the court for exercising their right under Section 24 of the Act before the expiry of the shelf life of the insecticide. Thus it has been contended that the petitioners cannot take the benefit of their own wrong.

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 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 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."

It is thus obvious from the above provisions that the petitioners had a right to get the sample reanalysed since they were informed that the sample was found misbranded. Immediately on the receipt of the show cause notice, the petitioners intimated the respondent that they did not accept the report of the analysis to be correct and desired to controvert the same and it be sent for reanalysis by the Central Laboratory. A further right has been conferred by subsection (4) of Section 24 of the Act which could not be exercised by the petitioners since shelf life had expired by the time the petitioners were summoned before the Court. The complaint was filed after a long period of the receipt of the reply from the petitioners and even after a long period of obtaining necessary sanction for prosecution. The petitioners were summoned in the complaint case 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 retested before the launching of the prosecution against him except in subsection (3) whereby he can challenge the report of the Insecticides Analyst only. The provision of this section simply provides that in case a written requisition 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 petitioners that the reanalysis can be ordered by a Court before the date of expiry of the shelf life of the insecticide, is of no consequence.

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, 1954 on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory 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 Insecticides Act, on identical facts and circumstances, was quashed by this Court in Mewa Singh''s case (supra) and the case of M/s Raj Hans Chemicals (supra). 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 .

In view of the law discussed above and in the facts of the present case, it becomes clear that on account of sheer negligence on the part of the complainant, the petitioners have been deprived of a valuable right to defend themselves in the proceedings initiated on the complaint Annexure P1.

Consequently, I accept this petition and hereby quash the complaint (Annexure P 1), the summoning order dated 28.1.1993 (Annexure P2) and the consequent proceedings qua the petitioners herein pending in the Court of Chief Judicial Magistrate, Amritsar.