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2001 DIGILAW 1657 (RAJ)

Artee Minerals v. State of Rajasthan

2001-10-10

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This criminal misc. petition under Sec. 482 Cr.P.C. has been filed by the petitioners-Manufactures, who are accused No. 3 and 4 in the original complaint, which the prayer that the proceedings of criminal case No. 162/87 State vs. M/s. Thakar Das Rajendra Kumar & Ors. for the offence under section 2, 18/29 of the Insecticides Act, 1968 (hereinafter referred to as the Act of 1968) pending in the Court of Judicial Magistrate, First Class, Anoopgarh (Sri Ganganagar) be quashed. (2). It arises in the following circumstances:- On 18.4.1987, a complaint was filed by the Insecticide Insepctor and District Agriculture Office, Rajasthan Canal Project, Anoopgarh (Sri Ganganagar) in the Court of Judicial Magistrate First Class, Anoopgarh (Sri Ganganagar) against the present petitioners, who are Manufactures and respondents No. 2 M/s. Thakar Das Rajendra Kumar, Vijainagar (Sri Ganganagar) and its proprietor Narain Das, who are dealers. It was stated in the complaint that on 12.7.1984, the Insecticide Inspector and District Agriculture Officer, Rajasthan Canal Project, Anoopgarh (Sri Ganganagar) took sample of the insecticide Rogor (Dimethoate) 30 EC from the premises of M/s. Thakar Das Rajendra Kumar, Sri Vijaynagar (Sri Ganganagar) in presence of its proprietor Narain Das (respondent No. 3), who were dealers and prepared fard and divided the sample into three parts as required by the law. One of the samples was sent for analysis to the State Pesticide Testing Laboratory Quality Control, Durgapura, Jaipur and the Insecticide Analyst, State Pesticide Testing Laboratory Quality Control, Jaipur gave his report on 28.9.1984, in which it was reported that the sample did not conform to the relevant is specification 3903-1975 in the active ingredient and hence, it was misbranded. It was also stated in the report that batch number of the insecticide was 366 and date of manufacturing was July, 1983 and date of expiry was Jan., 1985. (3). When the sample was not found in accordance with the prescribed standard, a notice dated 13.11.1984 was given by the Insecticide Inspector and District Agriculture Officer Rajasthan Canal Project, Anoopgarh (Sri Ganganagar) to the dealer M/s. Thakar Das Rajendra Kumar, Sri Vijaynagar (Sri Ganganagar) from whom, sample was taken. (3). When the sample was not found in accordance with the prescribed standard, a notice dated 13.11.1984 was given by the Insecticide Inspector and District Agriculture Officer Rajasthan Canal Project, Anoopgarh (Sri Ganganagar) to the dealer M/s. Thakar Das Rajendra Kumar, Sri Vijaynagar (Sri Ganganagar) from whom, sample was taken. On this complaint, the learned Judicial Magistrate, First Class Anoopgarh (Sri Ganganagar) vide order dated 18.4.1987 took cognizance against the present accused petitioners and M/s. Thakar Das Rajendra Kumar Sri Vijaynagar (Sri Ganganagar) (respondent No. 2) and its proprietor narain Das (respondent No.3) for the offence under Sections 2, 18/29 of the Act of 1968. (4). In this petition under Sec. 482 Cr.P.C., it has been submitted by the learned counsel appearing for the petitioners that since the complaint was filed after the expiry of shelf life of the insecticide in question, therefore, the accused petitioners were deprived of their valuable right to get the sample re-tested from Central Insecticide Laboratory and it has prejudiced in their defence and in these circumstances, continuation of the proceedings against the accused petitioners amount to abuse of the process of the court and should be quashed. (5). I have heard the learned counsel for the accused petitioners and the learned Public Prosecutor and perused the material available on record. (6). Before proceeding further, it would be worth while to quote here Sec. 24 of the Act of 1968. ``Report of Insecticide Analyst. - (1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-section (6) of Section 22, shall, within a period of sixty days, deliver to the insecticide Inspector submitting it a signed report in duplicate in the prescribed form. (2) The Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken as shall retain the other copy for use in any prosecution in respect of the sample. (2) The Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken as shall retain the other copy for use in any prosecution in respect of the sample. (3) 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 twenty eight 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. (4) 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 the insecticide produced before the magistrate under sub-section (6) of Sec. 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. (5) The cost of a test or analysis made by the Central Insecticides Laboratory under sub-section (4) shall be paid by the complainant or the accused, as the court shall direct. (7). Sec. 21 of the Act of 1968 empowers the Insecticide Inspector to take samples of any insecticide and send such samples for analysis to the Insecticide Analyst for test in the prescribed manner and as per sub-Sec. (5) of Sec. 22 of the Act of 1968, he shall divide the sample into three portions and effectively seal and as per sub-section (6) of Sec. 22 one of the samples shall be forwarded by him to the Insecticide Analyst for test or analysis. As per Sec. 24(1) of the Act of 1968, the Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under Sub-Sec. (6) of Sec. 22, shall, within a period of sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form and according to sub-sec. (2) of Sec. 24, the Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and the report of the Insecticide Analyst shall be conclusive evidence unless the person from whom sample was taken, has within twenty eight 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 intents to adduce evidence in controversion of the report. Sub- section (4) of Sec. 24 casts a duty on the Insecticide inspector to make compliance of the provisions for re-testing etc. (8). From perusing the record of the present case, it appears that the sample was taken by the Insecticide Inspector and District Agriculture Officer, Rajasthan Canal Project, Anoopgarh (Sri Ganganagar) on 12.7.1984 from M/s. Thakar Das Rajendra Kumar, Sri Vijainagar (Sri Ganganagar), Thereafter, the said sample was sent to the State Pesticide Testing Laboratory Quality Control, Government of Rajasthan, Durgapura, Jaipur for analysis and the Insecticide Analyst, State Pesticide Testing Laboratory Quality Control, Jaipur gave his report on 28.9.1984 and found that the sample was misbranded. The date of manufacturing of the insecticide in question was July, 1983 and the date of expiry was Jan. 1985.The complaint was filed on 18.4.1987, meaning thereby after the expiry of shelf life oaf the insecticide in question. (9). The next question that arises for consideration is whether in the facts and circumstances just mentioned above when the complaint was filed after the expiry of the shelf-life of the insecticide in question, proceedings u/Sec. 482 Cr.P.C. can be quashed or not. (10). So far as the point whether the expiry date of the sample is relevant or not, it may be stated here that in the prescribed form for submission of the report by the Insecticide Analyst, the dates of manufacture of the article and the expiry date are mentioned. (10). So far as the point whether the expiry date of the sample is relevant or not, it may be stated here that in the prescribed form for submission of the report by the Insecticide Analyst, the dates of manufacture of the article and the expiry date are mentioned. It means the expiry date of sample is very much material in deciding such type of matters. (11). Section 30 of the Act of 1968 provides for defences which may or may not be allowed in prosecution under the Act of 1968. Sec.30(1) of the Act of 1968 only prescribes in effect that ignorance would be no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act of 1968, the accused have no remedy. The procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the right to seek dismi- ssal of the complaint. Then in order to safeguard the right of the accused to have the sample tested from the Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. (12). In the present case, by the time complaint was filed before the Court, the expiry date of the insecticide was already over and sending of the sample to the Central Insecticides Laboratory at that late stage would be of no consequence. Therefore, in view of Secs. 24(3) & 24(4) of the Act of 1968, the report of the Insecticide Analyst, State Pesticide Testing Laboratory Quality Control, Govt. of Rajasthan, Jaipur was not conclusive. A valuable right had been conferred on the accused petitioners to have the sample tested from the Central Insecticides Laboratory and in these circumstances of the case, the accused petitioners have been deprived of that right, thus, prejudicing them in their defence. In these circumstances, it would be abuse of the process of the Court is the prosecution against the accused petitioners is allowed to continue. In coming to the above conclusion, reliance has been placed on the decision of the Honble Supreme Court in State of Haryana vs. Unique Farmaid (P) Ltd. & Ors. (1). (13). In these circumstances, it would be abuse of the process of the Court is the prosecution against the accused petitioners is allowed to continue. In coming to the above conclusion, reliance has been placed on the decision of the Honble Supreme Court in State of Haryana vs. Unique Farmaid (P) Ltd. & Ors. (1). (13). Apart from this, Section 24 of the Act of 1968 of confers two rights, the right to challenge the correctness of the report of the analysis of the receipt of the show cause notice and secondly, to challenge the same and to make a request before the Court for reanalysis of the counter sample after the complaint is filed. The provisions of this section simply provide that in case a written request is made by the dealer of the manufacturer expressing its intention to controvert the report of the Analyst, the report shall not be conclusive evidence of the facts contained therein. (14). The material requirement of the Act of 1968 is that the complaint should be filed and the accused should be served well in time before the expiry of the shelf life of the insecticide in question so as to enable the accused persons to challenge the correctness of the report of the Analyst by forwarding the counterpart of the sample to the Central Insecticide Laboratory. If this right of an accused under the Act of 1968 is violated by in action or omission on the part of the Department, the same is fatal to the prosecution. (15). From this point of view also, the right of the accused petitioners to get the sample re-tested from the Central Insecticide Laboratory has been violated, as the complaint was filed after the expiry of the shelf-life of the insecticide in question. (16). In the following authorities, it has been held that complaint filed after expiry of shelf life of insecticide would result in the denial of right of the accused to get the sample analysed by the Central Insecticide laboratory and the complaints were quashed:- (1) TVV Reddy, Regional Manager vs. The State of Andhra Pradesh (2) (2) Jot Ram Dharam Chand Thappa vs. State of Punjab (3). (3) Dr. D.H. Desai vs. State of Punjab (4)) (4) Hindusthan Ciba Geigy Ltd. and Ors vs. State of Rajasthan & Ors. (5) (5) R.P. Gupta and Ors. vs. State of Rajasthan (6). (17). (3) Dr. D.H. Desai vs. State of Punjab (4)) (4) Hindusthan Ciba Geigy Ltd. and Ors vs. State of Rajasthan & Ors. (5) (5) R.P. Gupta and Ors. vs. State of Rajasthan (6). (17). Looking to the above authorities, since in the present case also complaint was admittedly filed after the expiry of shelf life of insecticide, it would result in the denial of right of the accused to get the sample re-analysed by the Central Insecticide Laboratory and in these circumstances, the proceedings against the present accused petitioners are nothing but abuse of process of court and are liable to be quashed in exercise of the powers under Sec. 482 Cr.P.C. For the reasons stated above, this petition files by the accused petitioners u/Sec. 482 Cr.P.C. is allowed and the proceedings of criminal case No. 162/87 State vs. M/s. Thakar Das Rajendra Kumar & Ors. for the offence under Sec. 3, 18/29 of the Act of 1968 pending in the Court of Judicial Magistrate, First Class, Anoopgarh (Sri Ganganagar) so far as they relate to the present accused petitioners are quashed.