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2000 DIGILAW 2 (PNJ)

Delta Insecticides Limited v. State Of Punjab

2000-01-09

S.S.NIJJAR

body2000
Judgment S.S.Nijjar, J. 1. This order shall dispose of Criminal Misc. No. 20786-M of 1998 and Criminal Misc. No. 7627-M of 1999. Criminal Misc. No. 20786-M of 1998 has been filed by the Company which manufactures various types of insecticides and pesticides under a valid registration certificate in this regard issued by the appropriate authority. Criminal Misc. No. 7627-M of 1999 had been filed by the dealer and the distributor of insecticides. These petitioners sell the insecticides and pesticides in the original sealed and packed condition as packed by the original manufacturer without tampering the same in any manner. 2. On 22.11.1993, Insecticide Inspector, Khanna, drew a sample of Insoproturon insecticide from the shop premises of petitioner No. 1 in Criminal Misc. No. 7627-M of 1999. Petitioner No. 2 in Criminal Misc. No. 7627-M of 1999 is the distributor of the manufacturer i.e. the petitioner in Criminal Misc. No. 20786-M of 1998. All the three petitioners were issued Show Cause Notice on 14.12.1993 stating therein that insecticide had been found to be misbranded. The manufacturer submitted the reply on 3.1.1994. In this reply, it is categorically stated that the manufacturer does not agree with the report of the Senior Analyst, Insecticide Testing Laboratory, Amritsar, and claims re-analysis of the insecticide in question from the Director of Central Insecticide Laboratory. Though this reply has been received by the respondents in time, yet no action has been taken by the respondents in this regard. Similarly, the distributor/dealer also submitted replies to the Show Cause Notice on 20.12.1993 and 23.12.1993. These petitioners had pointed out that the sample had been taken from a sealed container and they had not tampered with the seal. The packing of the container had been kept in the original condition. It was also requested that the sample be sent for re- testing by the Central Insecticides Laboratory. The same were also ignored. The complaint was filed on 9.2.1995 and the summoning order was issued on 28.11.1995. 3. Mr. Rakesh Verma has submitted that the matter is squarely covered by the judgment of the Supreme Court in the case of State of Haryana v. Unique Farmaid Industries Ltd., 1994(4) Recent Criminal Reports 540. 4. On the other hand, learned Assistant Advocate General, Punjab, has submitted that the complaint was filed within stipulated period but the petitioners did not make any request for sending the sample for re-testing. 5. 4. On the other hand, learned Assistant Advocate General, Punjab, has submitted that the complaint was filed within stipulated period but the petitioners did not make any request for sending the sample for re-testing. 5. A perusal of the record, however, shows that the summoning order was issued on 28.11.1995. The expiry date of the insecticide was October, 1995. In similar circumstances, after examining the relevant provisions of the Act, the Supreme Court observed that the petitioner therein had made a request to have the sample re-tested. However, as in the present case, no action was taken by the respondents. In the meantime, when the complaint was filed, shelf life of the insecticide from which the sample was taken, had already expired. In such circumstances, the Supreme Court held that the valuable right of defence of the petitioner has been prejudiced. Therefore, it was held that it would be an abuse of process of the Court if the complaint proceeds further. While coming to this conclusion, the Supreme Court also observed as under : "11. Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there is contravention of other mandatory provisions of the Act, the accused have no remedy. 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 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 present case, by the time 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 v. National Organic Chemical Industries Ltd., 1998(4) RCR (Crl.) 578 (SC) : JT 1996(10) SC 480, this Court in somewhat similar circumstances said that the procedure laid down under Section 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 ledge 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 a valuable right 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 the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal and others, 1998(2) RCR (Crl.) 608 : 1988(5) SCC 343 under the Drugs and Cosmetics Act, 1940. Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970; Chetumal v. State of Madhya Pradesh and another, 1981(3) SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf and another, 1999(1) RCR (Crl.) 699 : 1999(2) SCC 4000, all under the Prevention of Food Adulteration Act, 1954." 6. In the facts of this case, it cannot be held that there is any room for doubt that the petitioners had made a request for re-analysis of the sample under Section 24 of the Act. This request was totally ignored by the respondents. By the time the petitioners have been summoned to appear in Court even if the sample is sent for reanalysis, it would be of no consequence. Therefore, valuable right of the petitioners of re-analysis has been denied. Therefore, the defence of the petitioners is likely to be prejudiced. 7. In view of the above, continuation of the proceedings on the basis of the complaint would be an abuse of the process of the Court. The petitionS are, therefore, allowed. Therefore, valuable right of the petitioners of re-analysis has been denied. Therefore, the defence of the petitioners is likely to be prejudiced. 7. In view of the above, continuation of the proceedings on the basis of the complaint would be an abuse of the process of the Court. The petitionS are, therefore, allowed. The proceedings pending in the Court of the Judicial Magistrate Ist Class, Khanna, on the basis of the complaint, Annexure P-1 and summoning orders Annexures P-2 and P-3, are hereby quashed.