The Managing Director, Anup Product Limited and Another vs The State of Karnataka

G. Patri Basavana Goud, J.—The Petitioners are being prosecuted for an offence punishable u/s 29(1) of the Insecticides Act, 1968 (''Act'' for short) at C.C. No. 629 of 1995 on the file of the learned J.M.F.C., Bhalki. In this petition u/s 482 Code of Criminal Procedure they seek quashing of the same.

The alleged offence pertains to the material, trade name of which is ANUFEM and the commercial name is FENVALRATE. Certain undisputed facts may be set out. Purchase was made on 28.11.1994. It was sent for analysis to the Insecticides Control Laboratory at Bellary on 29.11.1994. The Analyst tested it on 9.12.1994 and opined that the sample does not conform to the set standard.

Sub-section (2) of Section 24 of the Act requires that a copy of the said report shall be delivered by the Insecticide Inspector to the person from whom the sample was taken. In pursuance of the said requirement under Sub-section (2), a copy was delivered on 27.1.1995. As per Sub-section (3) of Section 24 of the Act, the above said report of the Insecticide Analyst would be conclusive, unless, within 28 days of the receipt of the notice under Sub-section (4), the person concerned notifies to the Insecticide Inspector in writing about his intention to adduce evidence in controversion of the said report. Within the said period of 28 days, the Insecticide Inspector was intimated in writing by the communication dated 20.2.1995. Sub-section (4) of Section 24 inter alia provided that, where sample has not already been tested or analysed in the Central Insecticides Laboratory, like in the present case where it was in a Laboratory other than the Central Insecticides Laboratory, and where a person has under Sub-section (3) notified his intention of adducing evidence in controversion of the Insecticides 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 u/s 22(6) of the Act to be sent for analysis to the Central Insecticides Laboratory, and the result thereof shall be conclusive evidence of the facts stated therein. With this right accrued to the Petitioners to have the sample tested in the Central Insecticides Laboratory and thereby to adduce evidence in controversion of the report earlier issued by the Insecticide Analyst, it was to be expected that the prosecution would be launched at the earliest, at any rate, before the shelf life of the material concerned would expire, and to have the sample tested by the Central Insecticides Laboratory, the reason being that, without launching of the prosecution, the Court would not be seized of the matter in order to decide under Sub-section (4) of Section 24 of the Act in the matter of sending the sample to the Central Insecticides Laboratory. It is therefore to be expected that, prosecution will be launched expeditiously, at any rate before the expiry of the shelf life of the material concerned. It so happened that while shelf life of the material concerned expired in February, 1995, complaint itself came to be lodged in December, 1995.

The Supreme Court happened to deal with a similar situation and this is what the Supreme Court said in this regard in State of Haryana v. Unique Farmaid Private Limited and Ors. 1999 (3) CCC (SC) 101:

Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the Respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In the State of Punjab Vs. National Organic Chemical Industries Ltd., this Court in somewhat similar circumstances said that the procedure laid down u/s 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of valuable rights statutorily available to him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused. We have cases under Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involved in the same question. In this connection reference be made to decisions of this Court in State of Haryana Vs. Brij Lal Mittal and Others, under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi Vs. Ghisa Ram, 970; Chetumal Vs. State of Madhya Pradesh and Anr, ; and Calcutta Municipal Corporation Vs. Pawan Kumar Saraf and Another, all under the Prevention of Food Adultration Act of 1954.

It cannot be gainsaid, therefore, that the Respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory and Sub-section (4) of Section 24 of the Act. Under Sub-section (3) of Section 24, report signed by the Insecticides Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not within 28 days of the receipt of the report, notify in writing to Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases, Insecticides Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the Court, shelf life of the sample had already expired and no purpose would have been served informing the Court of such an intention. The report of the Insecticides Analyst, therefore, not conclusive. A valuable right had been conferred on the accused to have to sample tested from the Central Insecticides Laboratory and in the circumstances of the case, accused have been deprived of that right, thus, prejudicing them in their defence.

In these circumstances, High Court was right in concluding that it will be an abuse of the process of the Court if the prosecution is continued against the Respondents-the accused persons. High Court rightly quashed the criminal complaint. We uphold the order of the High Court and would dismiss the appeals.

In view of the above, it is evident that the right of the Petitioners-accused to have the sample tested having been denied to them by the delayed launching of the prosecution, the proceeding concerned needs to be put to an end, as otherwise, it will be an abuse of the process of the Court.

Petition is allowed. Impugned proceeding is quashed.