Shamsher Singh vs State of Haryana

V. S. Aggarwal, J.

Petitioner No. 1 is the authorised licenced retail dealer of pesticides. Petitioner No. 2 is the licenced distributor of pesticides. Petitioner No. 3 Dr. D. K. Joshi is Production Manager of M/s. BASF India Limited. It has been issued licence to manufacture pesticides. All the petitioners seek quashing of the complaint titled as State of Haryana v. M/s. Hindustan Seeds and Pesticides. It has been filed with respect to offences punishable under Sections 29(1)(a) and 17(1)(a) of the Insecticides Act, 1968.

It is contended that on 12.3.1992 a sample of Cypermothrin 25 EC was taken by Inspector Rajpal Singh from the shop of petitioner No. 1. On 9.5.1992 an intimation was sent by the office of Sub Divisional Agriculture Officer to the firm of petitioner No. 1 that sample in question has been found to be misbranded. Petitioner No. 1 wrote to the Sub Divisional Agriculture Officer, Kurukshetra on 14.5.1992. He was requested to get the second sample tested from the Central Insecticide Laboratory. A similar notice was sent to petitioner No. 3 firm. The firm wrote on 9.6.1992 to the Sub Divisional Agriculture Officer that in the report of the Public Analyst batch number of the product is mentioned as 101. This batch number has not been supplied by the company M/s BASF India Limited. It was requested that verification should be made and M/s BASF India Limited should be informed immediately.

On 20.9.1993 a letter was sent by the Sub Divisional Agriculture Officer, Kurukshetra that batch number in the report has been wrongly mentioned as 101. In fact it is 9106.

It is asserted that the insecticide in question had been manufactured in July, 1991. Its shelf life expired in June, 1993 prior to the clarifications that were given. In this process a valuable right was lost to get the second sample tested from Central Insecticide Laboratory. It is also contended that the sanction given is invalid.

Reply has been filed by the Sub Divisional Agriculture Officer, Kurukshetra. It is asserted that the report was conveyed to petitioner No. 1 and petitioner No. 3 well before the shelf life expired. They never applied for reanalysis of the product and, therefore, the said contention that a valuable right has been lost is without merit. It was denied that a valid sanction had not been accorded.

As is apparent from the assertions of the parties, the main contention agitated and raised at the bar was that since the shelf life of the product had expired, they lost a valuable right because the clarification so given was after the expiry of the shelf life and even the complaint was filed after it.

Section 24 of the Insecticides Act, 1968 holds the answer to the question and subsections (1) to (4) of Section 24 reads :

"24(1). The Insecticide Analyst whom a sample of an 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 contravention of the report.

(4) Unless the sample has already been tested or analysed in the Central Insecticide Laboratory, where a person 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."

Under the relevant provisions, it is apparent that once the report is received that article is misbranded, one copy has to be given to the person from whom the sample was taken. Within 28 days of the receipt of the copy, the said person can notify in writing to the Insecticide Inspector about his intention to adduce evidence in contravention of the report. Under sub section (4) of Section 24 even on the request of the accused, the Court can send the second sample to the Central Insecticide Laboratory.

Ex.P4 is the copy of the letter dated 9.5.1992 written by the Sub Divisional Agriculture Officer informing that the sample has been found mis branded. The reply was sent by M/s. Hindustan Seeds and Pesticides through its proprietor petitioner No. 1 praying that the sample be got reanalysed from any Central Laboratory. In other words, the intention was clearly given that petitioner No. 1 intends to adduce evidence in contravention of the report. The form is not material. The intention is clearly spelt when petitioner No. 1 intimated and requested that it be got analysed from Central Insecticide Laboratory. It was not got done. On the contrary qua petitioner No. 3 the clarification was claimed about the batch number. In the report of the Analyst, the batch number was given as 101. Petitioner No. 3 claimed clarification. It was only given after the shelf life of the product expired. It is strange that it took more than one year to give clarification and that too after the shelf life had expired. Once the shelf life had expired, the petitioner was left with no right to get the sample retested from the Central Insecticide Laboratory. A valuable right was lost. In this process great prejudice would be caused to the petitioners. One wonders as to why it could not have been done earlier. A similar situation had arisen in the case of M/s. Jindal Brothers and another v. State of Punjab, 1993(2) RCR 524 . It was again held that when on receipt of notice, the accused had made a request for the testing of the sample again and the complaint was filed after the shelf life had expired, the same must be quashed. As had been mentioned above, the facts of the present case are identical. One is pained as what prompts the authorities to delay such complaints and even a minor clarification of the batch number was only given after the shelf life had expired. The ratio of the decision in the case of M/s. Jindal Brothers and another (supra) squarely helps the petitioners.

For these reasons, the petition is allowed. The complaint filed against the petitioners and the subsequent proceedings are quashed.