Shiv V.K.Dass vs State of Punjab

V.S. Aggarwal, J.

On 8.9.1993 Shri Gurditta Singh, Insecticide Inspector took sample of Monocrotophos from the shop premises of M/s Bawa Agro Centre, Mansa. It was alleged that the said Monocrotophos was manufactured by M/s Vantech Pesticides Limited. Petitioner No. 1 is the Managing Director of M/s Vantech Pesticides Limited and petitioner No. 2 is the Quality Control Officer. Petitioner No. 3 is the Regional Manager of the said company responsible for the conduct of business of the company.

The sample on analysis was found to contain 39.09% active ingredient instead of 36% ingredient and, therefore, was misbranded. A complaint under Section 29 read with Sections 2(K) (i), 13, 17, 18 and 33 of the Insecticides Act, 1968 (hereinafter described as ''the Act'') was filed against M/s Bawa Agro Centre and also against the petitioner being Managing Director, Quality Control Officer and Regional Manager of M/s Vantech Pesticides Limited, Hyderabad. The SubDivisional Judicial Magistrate, Mansa has taken cognizance and has issued summons to the petitioners.

Petitioners seek quashing of the criminal complaint pending in the Court of SubDivisional Judicial Magistrate, Mansa alleging that M/s Vantech Pesticides Limited is manufacturer of Monocrotophos. The articles manufactured were tested in the laboratory of M/s Vantech Pesticides Limited. There is no fault on the part of the petitioners. Furthermore, it is alleged that manufacturing date of the article was March, 1993 and the expiry date was August, 1994. When the petitioners received the show cause notice from Chief Agricultural Officer about misbranding of the sample and to show cause as to why proceedings should not be launched against them, they had sent the reply. The dealer to whom showcause notice was issued had requested that second sample should be got tested from Central Insecticide Laboratory, Faridabad. The request was rejected. The petitioners filed an application and the Sub Divisional Judicial Magistrate had sent the sample to the Central Insecticide Laboratory, Faridabad. The sample was returned with the remarks that the same cannot be analysed after the expiry date. It is claimed that the right conferred under Subsection (4) of Section 24 of the Act has been taken away by the said delay.

Notice of the petition was issued to the respondent and in the reply filed it is insisted that the sample so taken was sent to the Insecticide Laboratory, Punjab Agriculture University, Ludhiana. It was found to contain higher active ingredients than the required specifications. It was further mentioned that under Section 24(3) of the Act, the petitioners have not controverted the Analyst report. Therefore, under Section 24(4) the petitioners have no right of reanalysis.

The main submission of the petitioners'' learned counsel was that because of the delay the petitioners have been deprived of their right to get the sample tested in terms of subsection (4) of Section 24 of the Act. Section 24 of the Insecticides Act, 1968 reads as under :

"REPORT OF INSPECTOR ANALYST

(1) The Insecticide Analyst whom a sample of an insecticide has been submitted for test for analysis under subsection (6) of Section 22, shall, within a period of sixty days, deliver to the Insecticide Inspector (sic) 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 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.

(5) The cost of test or analysis made by the Central Insecticides Laboratory under subsection (4) shall be paid by the complainant or the accused, as the court shall direct."

The relevant provisions refer to the report of the Inspector Analyst. The Insecticide Analyst has to send within 60 days to the Insecticide Inspector the report in duplicate. Under subsection (2) of Section 24 of the Act, the Insecticide Inspector on receipt, shall deliver one copy of the report to the person from whom the sample was taken. The said person within 28 days of the receipt of the copy can give his intention in writing to the Insecticide Inspector or to the court that he intends to adduce evidence in contravention of the report. Subsection (4) of Section 24 of the Act concerns more with the petitioners and prescribes that where a person under subsection (3) of Section 24 of the Act has notified his intention to adduce evidence, the court can at the request of the accused call the sample to be sent to the Central Insecticide Laboratory, Faridabad.

These provisions show that even the accused has a valuable right to get the sample analysed under subsection (4) of Section 24 of the Act before the expiry date. It is not only a right of the person from whom the sample has been taken. Keeping in view the said right it is mandatory that complaints must be filed and notices be given well within this stipulated time. Otherwise with the expiry date that lapses the samples cannot be tested as in the present case. A valuable right is lost to the accused persons. This is so because the Central Insecticide Laboratory could not test these samples after the expiry date. There is no reason as to why the complaint was delayed, as such.

Very near to the facts of the present case is the decision of this Court in the case of M/s Jindal Brothers and another v. State of Punjab, 1993(2) C.L.R. 341 : 1993(2) Recent Criminal Report 524 . Here too the valuable right of the accused under subsection (4) of Section 24 of the Act to get the samples reanalysed from the Central Insecticide Laboratory have been taken to have denied. The court on appraisal of other precedents concluded that once such a right is denied, the complaint is liable to be quashed.

For these reasons, the petition is accepted and the complaint as such is quashed including the subsequent proceedings arising thereto in the court of SubDivisional Judicial Magistrate, Mansa.