Shelja Pesticides Centre, Abohar vs State of Punjab

K.K. Srivastava, J.

This is a petition under Section 482 Cr.P.C., seeking the quashing of complaint filed by the respondent, State of Punjab through the Insecticide Inspector, Abohar, under Section 29 of the Insecticide Act, 1968, read with Rule 27(5) of the Insecticide Rules, 1971, and for quashing of all the consequential proceedings.

The petitioner firmM/s Shelja Pesticides Centre, Sabji Mandi, Abohar is a partnership firm, dealing in pesticides and insecticides. The Chief Agriculture Officer had granted a licence to the said firm for the purpose of selling different types of insecticides and pesticides, manufactured by different licenced manufacturers. The Insecticide Inspector, Abohar, visited the shop of the petitioner on 23.6.1989 and took three sealed containers of Monocrotophos 36% SL, each measuring 250 mls of batch No. 08. It was manufactured by a registered manufacturer, namely M/s Indian Manufacturing Company, Jaipur. Out of the three samples so taken, one was handed over to the petitioner and the another sample was sent to the State Insecticide Laboratory, Ludhiana, for analysis. The third sample was kept in the office of the Chief Agricultural Officer, Ferozepur. The sample on analysis was declared as misbranded as it did not conform to the ISI specifications in its active ingredients. A show notice was issued to the petitioner on 22.8.1989 alongwith a copy (copy Annexure P1) of the report of the analyst. The petitioner gave a reply to the show cause notice on 4.9.1989 (copy Annexure P2), wherein it was contended, inter alia, that the petitioner firm was not the manufacturer and the sample had been duly sealed and contained in a container, as received from the manufacturer and as such was not misbranded by the petitioner. It remained intact till it was in the control of the petitioner. The petitioner/firm is in no way responsible for the sample being misbranded. It was requested by the petitioner that the second sample be got examined again and a fresh report be obtained in this behalf and that the manufacturer, namely Indian Manufacturing Company, B236, Road No. 10, Vishwakarma Industrial Area, Jaipur, be also associated. An opportunity of hearing was also desired by the petitioner in order to enable him to put all the relevant facts and circumstances before the Chief Agricultural Officer. It appears that the Chief Agricultural Officer did not act as requested by the petitioner inasmuch as the second sample was not sent to the Central Insecticide Laboratory for reanalysis and the complaint was filed in the Court of the Judicial Magistrate, Fazilka (copy Annexure P3), which is impugned in this petition. The Joint Director of Agriculture (ICDP) accorded sanction to the complainant Insecticide Inspector for prosecuting the petitioner firm and M/s Indian Manufacturing Company, aforesaid (copy Annexure P4).

Notice of motion was issued to the respondent, who filed reply. The factual aspects of the case were not disputed in the reply. It was contended that the State Insecticide Testing Laboratory, Ludhiana found the sample to be misbranded inasmuch as it did not conform to the ISI specifications in respect of its percentage active ingredient content, which were found to be 4.32 instead of 36%. It was alleged that the petitioner was afforded full opportunity to get the sample reanalysed and he had sufficient time to move the court for sending the second sample for analysis, which was not availed by him. The petitioner, it was alleged, was not entitled to get benefit under Section 30(3) of the Insecticide Act as it was a matter of evidence whether the petitioner fulfilled the conditions as required by Section 13(3) of the Act. Regarding the aforesaid insecticide having been properly restored (stored ?), the sanction order was defended and it was contended that the sanction order was passed by the competent authority and the same is legal any valid. The sanction was accorded after the authority applied its mind.

Shri Ravinder Chopra, learned counsel appearing for the petitioner submitted that the expiry date of the insecticide in question was December, 1989, whereas the impugned complaint was filed on 12.7.1990, i.e. after the expiry of the shelf life of the insecticide in question. Since the impugned complaint was filed belatedly a valuable right of the petitioner for getting the second sample reanalysed has been taken away and this has greatly prejudiced his defence. Shri Chopra contended that after the receipt of the show cause notice (copy Annexure P1) dated 22.8.1989, the petitioner had well within time sent a request vide letter (copy Annexure P2) dated 4.9.1989 for sending the second sample for analysis afresh, but no action was taken on his request. In this background, Shri Chopra urged that the stand taken in the reply of the respondent that the petitioner had failed to avail the opportunity to have the second sample reanalysed, has no substance. Shri Chopra relied on a judgment of this Court delivered in Criminal Miscellaneous No. 26947/M1997 (M/s Luxmi Dal Store v. State of Haryana), wherein under somewhat similar circumstances, the complaint was ordered to be quashed as the second sample for reanalysis was not sent to the Central Insecticide Laboratory, though the request had been made well within time and by then the shelf life of the insecticide had not expired. In M/s Luxmi Dal Store''s case (supra), the reliance was placed on a case titled as M/s Raj Hans Chemicals v. State of Haryana through Insecticide Inspector, Kurukshetra, Criminal Miscellaneous No. 5976/M1997 and Surinder Pal Singh v. State of Punjab, 1997(1) RCR(Crl.) 602 : 1996(4) All Instant Judgments 714 . In State of Punjab v. National Organic Chemical Industries Ltd., JT 1996(10) SC 480, the Apex Court held as under :

"Thus, it would be clear that after the inspection and seizure of the insecticide, the Insecticide Inspector shall divide the insecticide into three portions, as contemplated and in the manner prescribed and deliver one such sample to the manufacturer or person from whom insecticide was taken. One should be sent to the Insecticide Analyst. After the receipt of the report, the accused would be notified of the result of the report. Thereafter the complaint is required to be lodged in the court. 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 evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to disclose 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 Insecticides 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 and facts stated therein. The cost thereof is to be borne either by the complaint or by the accused, as may be directed by this Court."

There is yet another aspect of the matter. The sample in the instant case was taken of insecticide contained in a sealed container, as settled by the manufacturer. The petitioner had no knowledge regarding the said insecticide contained in the sealed container to be misbranded. There are no allegations made in the complaint regarding the petitioner being negligent or careless in storing the said insecticide, contained in the sealed cover. In support of his contention, Shri Chopra relied upon a judgment of this Court in M/s Saini Beej Bhandar and another v. State of Haryana through Quality Control Inspector, Criminal Miscellaneous No. 16958M of 1997, wherein it was held while following the earlier judgment of this Court reported in M/s Siri Ram Sat Pal v. The State of Punjab, 1992(1) R.C.R. 613 , that as the sample was purchased from licenced manufacturer, the petitioner could not know with reasonable diligence that the insecticide in any way contravened any provisions of the Act. The petitioner was not liable for the commission of any offence and continuation of the prosecution of the petitioner will amount to an abuse of the process of the Court.

In view of the foregoing discussion, this petition is allowed and the impugned complaint (Annexure P3), the summoning order as also the consequential proceedings flowing therefrom are hereby quashed qua the petitioner.