Thakur Chemicals vs State of Haryana

P.K. Jain, J.

M/s. Gujarat Pesticides Private Limited, Kalol (Gujarat) is the manufacturer, M/s. Thakur Chemicals, Karampura, New Delhi is the distributor and M/s. Garg Trading Company, Dhand (Haryana) is the dealer of an insecticide known as Phorate 10% G.

On 25.5.1992, the Insecticide Inspector (hereinafter referred to as the complainant) visited the business premises of the said dealer and purchased a sample of Insecticide Phorate 10% G. Batch No. 59, having manufacturing date May 1992 and expiry dated April 1993, in accordance with the provisions of the Insecticide Act, 1968 (hereinafter referred to as the Act). On being analysed the said sample was declared misbranded by the Senior Analyst, Quality Control Insecticides Laboratory, Karnal, by his report dated 7.7.1992. The Deputy Director of Agriculture, Kaithal forwarded a copy of the analysis report alongwith his letter No. 2833 dated 16.7.1992 to the dealer M/s. Garg Trading Company, Dhand and intimated the manufacturer vide letter of the even date. After obtaining necessary sanction the complainant filed a complaint (Annexure P1) dated 20.3.1993 under Sections 29(1) (a) and 17(1)(a) of the Act against the said dealer, distributor and the manufacturer, cognizance of which was taken by the Judicial Magistrate, Kaithal and the accused were summoned. The distributor was served on 9.5.1994 for appearance before the court.

M/s Thakur Chemicals, the distributor has filed the present petition under section 482of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing the complaint (Annexure P.1) and the subsequent proceedings arising therefrom being the abuse of the process of the court. It has been alleged in the petition that no copy of the analysis report was ever sent to the petitioner although it was obligatory upon the department to send a copy thereof to the distributor as well, that the petitioner was served on 9.5.1994 at a time when the shelf life of the insecticide in question had already expired and that a valuable right conferred by section 24 of the Act has thus been defeated.

Notice of motion was given to the respondent.

In reply it has been stated that the sample was purchased on 28.5.1992, that the copy of the analysis report was sent to the dealer along with letter dated 16.7.1992 as per provisions of Section 24(2) of the Act; that the dealer had applied to the Deputy Director of Agriculture, Kaithal for reanalysis of the sample on 31.7.1992 vide letter (Annexure P.2) but his request was turned down by order dated 11.8.1992 (Annexure P.3) while intimating that it was only the court under whose orders the counterpart of the sample could be reanalysed, and that there was no obligation on the part of the department to send a copy of the said report to the petitioner. It has been further stated that the complaint was filed on 20.3.1993 while the expiry of the sample was April, 1993 and the dealer was aware about the facts of the alleged sample as he had already been intimated with the analysis report; and that the distributor is directly attached with the dealer and is liable jointly for the offence in question.

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

Shri R.K. Jain, Advocate, learned counsel for the petitioner has pointed out that the sample of the insecticide in question was taken on 28.5.1992, the manufacturing date of which was May, 1992 and the expiry date was April, 1993. It has been further pointed out by the learned counsel that the report of the analyst was sent to the dealer vide letter dated 16.7.1992 to which a proper reply dated 31.7.1992 (Annexure P.2) was sent, and it was made clear that the report of the Senior Analyst was not correct and the request was made that counterpart of the sample be sent for retesting in other laboratory. The learned counsel has further pointed out that the request was turned down by the department vide letter dated 11.8.1992 (Annexure P.3) on the ground that the sample may be got reanalysed with the permission of the court. It has been further argued that the complaint in question was filed against the accused persons on 20.3.1993, wherein the petitioner was served on 9.5.1994, i.e. long after the expiry of the shelf life of the insecticide in question. It has also been argued that even if all the allegations of the complainant are accepted to be correct a valuable right granted by Section 24 of the Act stands defeated and this itself is a good ground to quash the complaint. In support of this contention learned counsel has placed reliance upon the judgments of this court rendered in Mewa Singh v. Prithipal Singh, 1994(1) Recent Criminal Reports 94 and M/s. Raj Hans Chemicals v. State of Punjab, 1994(2) Recent Criminal Reports 139 .

On the other hand Shri P.S. Sullar, learned Assistant Advocate General, Haryana, has argued that the dealer had been informed well in time regarding the report of the Analyst and proper steps ought to have been taken to apply to the court for exercising a right under section 24 of the Act; that the re analysis of the countersample could be made only under the orders of the Court and therefore, it was for the dealer to apply to the court instead of writing to the department. Thus it has been contended that the petitioner is not entitled to the benefit of the omission of its own dealer. It has also been contended that the department was not under any obligation to send the copy of the report to the petitioner/distributor.

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 Insecticide 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 dealer M/s. Garg Trading Company had a right to get the sample reanalysed since it was informed that the sample was found misbranded. Admittedly, immediately on receipt of the show cause notice alongwith the report the said dealer intimated the respondents vide their letter (Annexure P.2) that the report of the analysis was not acceptable and the same was not correct and the countersample be got reanalysed from any other laboratory. This request was turned down by the department vide letter (Annexure P.3) on the ground that permission for re analysis may be obtained from the Court. It is also not disputed that the complaint in question was filed on 20.3.1993, wherein the present petitioner/distributor was served on 9.5.1994. It is also the admitted case of the parties that the manufacturing date of the insecticide in question was May, 1992 and the expiry date was April, 1993. Thus it becomes clear that the petitioner firm was served in the complaint case for a date by which 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 launching prosecution against him except in subsection (3) whereby he can challenge the report of the Insecticide Analyst only. Section 24 of the Act confers two rights i.e. the right to challenge the correctness of the report of the analysis on the receipt of the show cause notice, and secondly to challenge the same and to make a request before the Court for re analysis of the countersample after the complaint is filed. The provisions of this section simply provides that in case a written request 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 dealer 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, 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 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 petitioner has been deprived of a valuable right to defend itself in the proceedings initiated on the basis of the complaint (Annexure P1). I need not go into the question as to whether the department was bound to send a copy of the report of Analyst to the petitionerdistributor.

Consequently, I accept this petition and hereby quash the complaint (Annexure P.1), the consequent summoning order and further proceedings thereon passed and pending in the court of Judicial Magistrate, Kaithal.