Singh Kheti Store, Chogawan (Amritsar) vs State of Punjab

P.K. Jain, J.

M/s. Bharat Pesticides Manufacturing Company, petitioner No. 5, is the manufacturer, M/s. Agro City Centre, petitioner No. 3, is the distributor and M/s. Singh Kheti Store, petitioner No. 1, is the dealer of an insecticide Butachlor 50% EC.

On June 10, 1991, the Insecticides Inspector, purchased 3 tins, each containing 1 litre of Butachlor 50% EC by way of sample from petitioner No. 1. The manufacturing dated thereof was May 1991 and the expiry dated April 1993. The sample on analysis was found to be misbranded vide reportAnnexure P.2 Showcause notices dated 4.9.1991 (Annexure P3) and dated 17.7.1991 (Annexure P3/A), along with a copy of the report of the analyst were issued to the petitioner. The correctness of the report of the Analyst was not accepted to be correct and the reply dated 18.9.1991 (Annexure P4) and dated 27.7.1991 (Annexure P.4/A) were sent with a request to send the counter sample for testing to the Central Insecticides Laboratory. However, the sample was not sent for reanalysis by the department as requested by the petitioner. Consequently, an application dated 9.12.1991 (Annexure P.5) was filed before the Chief Judicial Magistrate, Amritsar, for sending the counter sample for testing to the Central Insecticides Laboratory but the same was rejected by order dated 1.4.1991 (Annexure P.6) on the ground that the application was not maintainable as no proceedings under the Insecticides Act, 1968 (for short ''the Act'') had been launched by the Insecticides Inspector by that time. After obtaining the necessary sanction dated 16.1.1992 (Annexure P.7), the Insecticides Inspector filed a compliant (Annexure P.8) on 26.3.1993 before the Duty Magistrate, who in turn, directed it to be placed before the Chief Judicial Magistrate. On 15.4.1993, the Chief Judicial Magistrate took cognizance of the complaint and issued summons to the accused who are the petitioners, for 19.5.1993, i.e. the Chief Judicial Magistrate took cognizance of the complaint on a date after the expiry of the shelf life of the insecticide in question.

The petitioners have filed the present petition for quashing the complaint (Annexure P.8), the summoning order (Annexure P.9) and the subsequent proceedings thereon on the grounds that a valuable right conferred upon the petitioners under Section 24(3) of the Act has been denied to them which has prejudiced in their defence, that there is no legal and proper consent order for the prosecution of the petitioners and that there is no averment as to who was the incharge of and responsible for the conduct of the business of the petitioners/concerns.

Notice of motion was given to the respondents. In its reply, the respondents have admitted the receipt of the reply sent by the petitioners to the showcause notices, but has pleaded that the information was sent that only a Court of law is competent for sending the sample for reanalysis. It has been further stated that a complaint was filed on a date when the shelf life of the insecticide had not expired. It has been further stated that there is proper and legal sanction to prosecute the petitioners and they are being prosecuted in accordance with the provisions of the Act.

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

Although Mr. Arun Nehra, Advocate, learned counsel for the petitioners, has raised several pleas, but it is enough to refer to only one of them which is fatal to the complaint in question i.e. that the petitioners have been deprived of their right under Section 24 of the Act. 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 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 counter sample analysed from the Central Insecticides Laboratory since they were informed that the sample was found misbranded. Admittedly, immediately on receipt of the showcause notice along with the report, petitioners Nos. 1 and 3 intimated the respondent vide their reply (Annexures P.4 and P.4A) that the report of the Analyst was not acceptable to them and the counter sample be reanalysed from the Central Insecticides Laboratory. This request was admittedly not acceded to by the department It is also not disputed that thereafter petitioner No. 1 moved an application (Annexure P.5) before the Chief Judicial Magistrate, Amritsar, under Section 24(3) of the Act for sending the counterpart of the sample to the Director, Central Insecticides Laboratory for analysis. This application was opposed by the respondent and was rejected by the Chief Judicial Magistrate by his order dated 1.4.1992 (Annexure P.6), on the ground that no proceedings under the Act had been launched by the respondent by that time. It is also not disputed that the complaint (Annexure P.8) was filed on 26.3.1993 before the Duty Magistrate, Amritsar, who directed that the complaint be put up before the Ilaqa Magistrate on 15.4.1993. It was on 15.4.1993 that the Chief Judicial Magistrate, Amritsar, took cognizance of the complaint and issued summons to the petitioners. It is also not disputed that by the time the Chief Judicial Magistrate took cognizance of the complaint and issued the process to the petitioners, the shelf life of the insecticide in question has already expired.

Section 24 of the Act confers to 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 persons 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, A.I.R. 1967 S.C. 970, due to inordinate delay in instituting the prosecution, a valuable right conferred by Section 13(2) of the Prevention of Food Adulteration 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 C.R. 94 , and M/s. Raj Hans Chemicals v. State of Punjab, 1994(2) Recent C.R. 139 . Similar views were expressed by this Court in M/s Hindustan Pulverising Mills v. State of Haryana, 1992(2) Recent C.R. 313 , National Organic Chemicals Ltd. v. State of Haryana, 1992(1) Recent C.R. 157 and M/s. Jai Chemical v. State of Punjab, 1994(3) Recent C.R. 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. (1996(2) Recent Criminal Reports 285).

In view of the law and the facts of the present case discussed above, it becomes clear that the petitioners have been deprived of their valuable right conferred upon them by Section 24 of the Act which has caused prejudice to defend themselves in the proceedings initiated on the basis of the complaint (Annexure P8). I need not go into other pleas raised by Mr. Nehra, learned counsel for the petitioners.

Consequently, I accept this petition and hereby quash the complaint (Annexure P.8), the summoning order and further proceedings thereon (Annexure P.9) pending in the Court of Chief Judicial Magistrate, Amritsar.