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1998 DIGILAW 582 (RAJ)

Pesticides India Ltd. v. State of Rajasthan

1998-04-25

SHIV KUMAR SHARMA

body1998
JUDGMENT 1. - The petitioners seek to quash the proceedings pending in the Court of learned Judicial Magistrate, First Class Deoli, under section 29(1)(1) of the Insecticides Act, 1968 (in short the Act). 2. Brief resume of the facts is that on 24.8.1992 sample of Methyl Parathion 2% DP with Batch No. 92 D-36 was taken by the Agriculture Officer cum Insecticide Inspector Malpura, non-petitioner No. 2 from the shop of M/s. Mittal Khad Beej Bhandar, Deoli. The expiry date of sample was 30.1.1994. The State Analyst in his report dated 30.10.1992 for Batch No. 92B 36 found the sample as mis-branded. On 1.12.1992 the manufacturer was given show cause notice by the non-petitioner No. 2 regarding batch No. 92 8-36. In its reply dated 8.12.1992 the manufacturer categorically denied that Batch No. 92 B-36 was not manufactured by it. On the other hand the dealer i.e. M/s. Mittal Khad Beej Bhandar, Deoli in reply to show cause notice dated 1.12.1992 made its intention clear for getting the sample re-tested by the Central Insecticides Laboratory but till date no action has been taken for retesting the sample. On 22.5.1995 the State Government gave consent to institute prosecution under section 31(1) of the Act and thereafter on 5.8.1995, the non-petitioner No. 2 instituted criminal complaint for offence under section 29(1)(a) of the Act against ten accused persons including the petitioners in the Court of Judicial Magistrate 1st Class, Deoli. On 1.4.1997 correct addresses of the accused were filed by the Public Prosecutor and on the said date the learned Magistrate issued process against the petitioners as well as other co-accused persons. 3. The contention of the petitioners is that the learned Magistrate committed grave error in issuing the process against the petitioners as no cognizance has been taken for any offences as yet. 4. I have reflected over the rival submissions made by the learned Senior Advocate Shri S.R. Bajwa as well as Shri M.L. Goyal; learned Public Prosecutor and carefully scanned the record. 5. Admittedly the maximum sentence which can be passed for offence under section 29(1)(a) of the Act is 2 years. The statutory period of limitation for filing complaint is 3 years from the date of commission of offence. Indisputably the sample was taken on 24.8.1992. The report of the State Analyst was received on 30.10.1992. 5. Admittedly the maximum sentence which can be passed for offence under section 29(1)(a) of the Act is 2 years. The statutory period of limitation for filing complaint is 3 years from the date of commission of offence. Indisputably the sample was taken on 24.8.1992. The report of the State Analyst was received on 30.10.1992. Therefore even commencing from 30.10.1992, the learned Magistrate should have taken cognizance latest by 30.10.1995. A perusal of entire order sheets of the file of the learned Court below demonstrates that no cognizance has been taken as yet and even if the order passed on 1.4.1997 is treated as the order taking cognizance, it is barred by limitation as it has not been passed within the period of limitation. 6. There is another infirmity in the instant case that the dealer intimated non-petitioner No. 2 on 29.12.1992 for getting the sample re-tested by Central Insecticides Laboratory and till date the non-petitioner No. 2 has taken no steps in this regard and the accused have been deprived of their valuable right granted to them u /s. 24 of the Act. As already noticed the shelf life of the impugned sample was to expire on 30.6.1994 and the complaint came to be filed on 25.8.1995 i.e. after the expiry of the shelf life of the impugned sample. 7. Sub-section (4) of Section 24 of the Act embraces that unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under sub-sec. (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 sub-sec. (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. 8. (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. 8. In State of Punjab v. National Organic Chemical Industries Ltd., 1996 (8) Supreme 83 their Lordships of the Supreme Court in para 4 of the said judgment observed thus "Thus, it would be clear that after the inspection and seizure of the insecticide, the Insecticide Inspector shall divide the insecticide into three portions, as contemplated and in the manner prescribed and deliver one such sample to the manufacturer or person from whom insecticide was taken. One should be sent to the Insecticide Analyst. 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 sub-sec. (3) of Section 24. The other option is, after the complaint is laid 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, consent and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court." 9. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court." 9. In U.S. Madan v. State, 1991 Cr.L.R. (Raj.) 799 this Court indicated thus -"In the present circumstances it is obvious that the petitioner has been deprived of the right to get the samples re-analysed and in such circumstances to allow the trial of the petitioner to proceed would amount to abuse of the process of Court and the proceedings against these petitioners deserve to be dismissed." 10. This Court had again occasion to examine the right of the accused in respect of re-analysis of the sample, in Hindustan Ciba Geigy Ltd. & Ors. v. State of Raj., 1994 Cr.L.R. (Raj.) 785. It was held that depriving the accused of the right of re-analysis of sample, amounts to abuse of process of the Court and order taking cognizance was was quashed by this Court. 11. In Bayer India Ltd. & Anr. v. State of Raj., 1997 Cr.L.R. (Raj.) 455, this Court held that where shelf life of the sample expired and the accused were deprived from their valuable right of re-analysis of the sample, the proceedings were liable to be quashed. 12. In the case on hand the date of manufacturing of the insecticide was 31.7.1992 and the shelf life of the insecticide as mentioned on the sample expired on 30.1.1994 and the petitioners made a request to the non-petitioner for re-testing of the sample by the Central Insecticide Laboratory within the time limit prescribed. Under these circumstances I think that further proceedings in criminal complaint pending in the Court of Judicial Magistrate 1st Class Deoli under section 29(1)(a) of the Act would be rendered fruitless and allowing the proceedings to continue shall amount to abuse of the process of the Court. 13. Resultantly, the petition succeeds and is hereby allowed. The proceedings pending in the Court of Judicial Magistrate Ist Class Deoli under section 29(1)(a) of the Act against the petitioners stand set aside. The record of the case be sent forthwith.Misc. Petition allowed. *******