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Rajasthan High Court · body

1998 DIGILAW 585 (RAJ)

Chaudhary Krishi Udhyog v. State of Rajasthan

1998-04-25

SHIV KUMAR SHARMA

body1998
Honble SHARMA, J.–Accused petitioners have preferred this petition under Section 482 Cr.P.C. seeking quashing of complaint pending in the court of learned Chief Judicial Magistrate Sikar bearing criminal complaint No.26 of 1992 under Section 3 read with Section 29(1)(a) of Insecticides Act, 1968 (in short the Act). (2). On Feb. 20, 1992 a criminal complaint for offences punishable under Section 3 read with Section 29(1)(a) of Insecticides Act came to be filed by the non-petitioner No.2 Insecticide Inspector cum Assistant Plant Protection Officer in the court of Chief Judicial Magistrate Sikar. It was averred in the complaint that on August 27, 1991 non-petitioner No.2 had taken sample of an insecticide named Carbofuron 3 G of which the manufacturing date was 8.6.1991. The expiry date i.e. the self date of the insecticide was 7.6.1993. The sample was obtained from accused petitioner No.1 M/s. Chaudhary Krishi Udhyog, Sikar, who is dealer of insecticides at Sikar. The complainant got the sample analysed by Government of Rajasthan, State Pesticide Testing Laboratory, Durgapura, Jaipur. The Laboratory in its report dated October 24, 1991 opined that the sample was mis- branded and after obtaining the consent of the State Government the complainant non-petitioner instituted the complaint against the accused including the petitioners. The learned Chief Judicial Magistrate took cognizance of the offence itself when the complaint was filed on 20.2.1992. After obtaining the report of analyst on 24.10.1991 the complainant non-petitioner No.2 issued show cause notice to the accused petitioner No.1 on 12.11.1991. The accused petitioner No.1 applied in court for re-testing of the sample by Central Insecticide Laboratory on 27.4.1992. The application is pending as yet. It appears from the record that the accused petitioner No.2 M/s. Pesticides India Ltd. received the copy of the report on December 10, 1991. Thereafter on December 28, 1991 i.e. within 28 days of the receipt of the copy of the report, the accused petitioner No.2 wrote a letter to the complainant respondent No.2 for getting the sample analysed by Central Insecticides Laboratory Faridabad. (3). During the pendency of criminal complaint the accused petitioner No.1 on July 28, 1997 moved an application under Section 258 Cr.P.C. before the learned Chief Judicial Magistrate stating therein that the shelf life of the sample had already expired. The accused had exercised his option under Section 24(3) of the Act but the sample was not got re-tested by the Central Laboratory. The accused had exercised his option under Section 24(3) of the Act but the sample was not got re-tested by the Central Laboratory. Attention was drawn to the provisions contained in Section 24 of the Act, under which the trial Court should have got the sample re-tested. It was therefore requested that the valuable right of the accused by way of getting the sample retested has been frustrated and the complaint deserves to be quashed. (4). The learned Chief Judicial Magistrate did not agree with the submissions made by the accused petitioner No.1 and dismissed the application vide order dated August 14, 1997. The petitioners have requested that as their valuable right had been frustrated as such the criminal complaint be quashed. (5). I have reflected over the rival submissions made by the learned Sr. Advocate Shri S.R. Bajwa as well as Shri M.L. Goyal, learned Public Prosecutor and carefully scanned the record. (6). 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- section (3) notified his intention of adducing evidence in controversion of the Insecticide Analysts 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 insecticide produced before the Magistrate under sub-section (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. (7). In State of Punjab vs. National Organic Chemical Industries Ltd. (1), 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. 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-section (3) of the 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. (8). In U.S. Madan vs. State (2) 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 deserves to be dismissed. (9). 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. vs. State of Rajasthan (3). 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 quashed by this Court. (10). In Bayer India Ltd. & Anr. vs. State of Rajasthan (3). 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 quashed by this Court. (10). In Bayer India Ltd. & Anr. vs. State of Rajasthan (4), this Court held that where self 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. (11). In the case on hand as already noticed the accused petitioners have already exercised their option under Section 24(3) of the Act, which expresses their intention to get the sample re-tested by the Central Laboratory within the prescribed period, but the learned trial Court did not pass any order in respect of re-analysis of the sample. As already noticed the manufacturing date of the insecticide named Carbofuron 3 G was June 8, 1991 and the shelf date of insecticide was June 7, 1993. Thus the shelf life of the sample has already expired and the accused petitioners have been deprived of their valuable right provided under Section 24(4) of the Act. As the accused petitioners under the circumstances opt to avail statutory defence and they have been deprived of valuable defence statutorily available to them. Under these circumstances I think that further proceedings in criminal complaint No. 26/1992 pending in the Court of Chief Judicial Magistrate under Section 3 read with Sec.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. (12). Resultantly, the petition succeeds and is hereby allowed. The proceedings bearing criminal complaint No. 26/1992 pending in the Court of Chief Judicial Magistrate Sikar under Section 3 read with Section 29(1)(a) of the Act stand set aside. The record of the case be sent forthwith.