Trilo Agro Industries (P) Ltd. vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

Petitioner has filed this petition under Section 401 read with Section 482 of the Code of Criminal Procedure for setting aside the order dated 14.12.1996 passed by the learned Chief Judicial Magistrate, Amritsar, in complaint case No. 447/2 dated 30.11.1993 and also for quashment of the complaint.

Adumbrated facts of the case are that Jasbir Singh, Insecticide Inspector, visited the premises of M/s Chatrath Kheti Store firm on 18.3.1993 and took the sample of dimethoate 30% (brand name YOGAR) TEC, which is manufactured by petitioner No. 1 of which Tarlok Singh is the Managing Director. Three containers were taken for analysis as per the provisions of the Insecticides Act, 1968. All the containers were duly sealed. One such container was given to M/s Chatrath Kheti Store Firm; one such sample/container was sent to the Public Analyst for analysis, who found the insecticide misbranded; show cause notice with copy of the report of Public Insecticides Analyst was sent to all the accused persons. Thereafter, complaint was filed before the lower Court on 30.11.1993.

Accused persons were summoned. They filed a petition under Section 245 of the Code of Criminal Procedure for discharging them on various legal points raised by them in the petition. That petition is dismissed vide impugned order dated 14.12.1996. Hence, this revision.

Admittedly, the said insecticide was manufactured by petitioner in January, 1993 and its shelf life was to expire in December, 1993. Sample of this insecticide was taken from M/s Chatrath Kheti Store and others on 18.4.1993. After receiving Public Analyst''s report, show cause notice was sent to all the accused persons. Petitioner sent its reply Annexure P3 dated 25.5.1993; the complaint was filed in the Court on 30.11.1993 and petitioner was summoned for 6.1.1994.

On these facts, petitioner''s learned counsel contended that the petitioner was summoned in the Court on 6.1.1994, while the shelf life of the insecticide expired in December, 1993. Hence, under Section 24(4) of the said Act, he was deprived of the statutory right to get the other sample tested by the Central Insecticides Laboratory and hence, proceedings against the petitioner are liable to be quashed. To support this contention, he has relied on M/s Dwarka Dass Sham Lal v. State of Punjab, 1993(3) RCR 583, M/s Montari Industries Ltd. v. State of Punjab, 1992(1) RCR 494 and The State of Punjab v. National Organic Chemical Industries Ltd., 1997(1) CLR 1.

Respondent''s learned counsel submitted that the copy of the Analyst''s report along with show cause notice was sent to the petitioner well in time. The petitioner sent the reply, Annexure P3, on 25.5.1993. In this letter, the petitioner has not notified that it intends to adduce evidence in contravention of the report of the Public Analyst; hence, now he cannot have any grievance that it has been deprived of its statutory right under Section 24(4) of the Act.

The legal issue raised by the petitioner deserves acceptance. In M/s Dwarka Dass Sham Lal''s case (supra), it has been held that "sample of insecticide was found misbranded by the Insecticide Analyst, but complaint in the Court was filed after expiry of shelf life of insecticide. On these facts, it was held that "accused was debarred of his valuable right to get the sample retested from Central Insecticides Laboratory under Section 24(4) of the Act."

In M/s Montari Industries Limited''s case (supra) also the sample of Insecticide was found misbranded by the Analyst; the complaint was lodged in Court; but accused was summoned when date of sample had already expired. Hence, it was held that "the accused lost opportunity to get second sample examined by the Central Insecticide Laboratory thus, the proceedings were quashed."

No doubt, subsection (3) of Section 24 provides as under :

"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 controversion of the report."

Further its subsection (4) reads as under :

"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 controversion 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 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."

These two provisions are interpreted by the Apex Court in National Organic Chemicals Industries case (supra), wherein it was observed that "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 adduce evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under subsection (3) of Section 24. The other option is, after the complaint is lodged 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, content and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused as may be directed by the Court."

Their Lordship further observed that "unfortunately, in this case, the appellant did not adopt the course as was required under the Act. Of course, the respondent, without availing of the remedy of report by Director CIL, may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail the statutory defence. The appellant had not given third sample to the respondent. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him...."

In this case, admittedly, no such sample was deposited in the Court of Magistrate along with the complaint. Hence, there is flagrant violation of the mandatory provision of Section 22(6)(ii) by the complainant. The third sample was given to the dealeraccused No. 1 from whom the sample was taken. Petitioner is manufacturer of the said insecticides and in his reply to the show cause notice, Annexure A3, petitioner has not given his option under Section 24(3) of the Act, but still under subsection (4), the petitioner had statutory right to make a request to the Court to send the third sample for test. Since the third sample is not deposited in the Court, the petitioner was deprived of his valuable right under Section 24(4) of the Act. In this connection it is pertinent to mention that the complaint itself was filed in the Court on 30.11.1993 and the petitioner was summoned by the Court for 6.1.1994. On this date, the shelf life of the insecticide had already expired. Therefore, even if the petitioner would be wanting to send third sample to Central Insecticides Laboratory, he has been deprived of that right because of late filing of the complaint. Thus, though the petitioner has not availed of the first option available to him under subsection (3) of Section 24 of the Act, still he had legal right to avail the statutory defence under Section 24(4) of the Act, which he is deprived of because of the delayed filing of the complaint in the Court and consequently his delayed appearance in the Court. The learned Judicial Magistrate has not considered this aspect of this case.

Hence, the impugned order is liable to be set aside and is hereby set aside. Since the petitioner has been deprived of the statutory defence available to him under Section 24(4) of the Act, in my considered view, further proceedings in the Court of Chief Judicial Magistrate, Amritsar would be rendered fruitless. Consequently, the complaint Annexure P2 is hereby quashed qua the petitioner.