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2002 DIGILAW 1039 (PNJ)

Sanjay Kumar v. State Of Punjab

2002-10-09

M.M.KUMAR

body2002
Judgment 1. This petition filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, seeks quashing of a criminal complaint filed by the Insecticides Inspector. Samrala (Annexure P-5) on the ground that the right of the petitioner under Section 24(4) of the Insecticides Act, 1968 (for brevity the Act) to get the sample analysed from the Central Insecticides Laboratory has been snatched and his defence is completely prejudiced. 2. Facts in brief are that on 25/07/1995 the Insecticides Inspector took sample of Cypermethrin 25% EC, which was found to be mis-branded by the Insecticides Analyst vide his report dated 29/09/1995. The remarks given are that the sample did not conform to the relevant I.S. (12016-1987) specifications in the active ingredient test requirement. On the basis of the report of the Insecticides Analyst, the Chief Agricultural Officer, Ludhiana, sent a notice to M/s. Northern Minerals Limited, Rajindra Mansion, Ansari Road, New Delhi on 30/11/1995. The notice is alleged to have been despatched on 5/12/1995 and the same is stated to have been received on or about 13/12/1995. The Northern Minerals sent its reply on 26/12/1995 to the Chief Agricultural Officer, Ludhiana, expressing their intention to get the sample re-analysed from the Central Insecticides Laboratory in accordance with the right given to it by Section 24(4) of the Act. Consent to prosecute the Northern Minerals through the petitioner was accorded by the Additional Director, Agriculture on 12/09/1996 and the complaint was filed on 28/09/1996. 3. In the reply, the facts have not been controverted and it is conceded position that on 26/12/1995 after the receipt of reply from the Northern Minerals, the sample was not sent for re-analysis by the Central Insecticides Laboratory. Therefore, the shelf life of the sample expired in September, 1996. 4. I have heard Mr. Arun Nehra, learned counsel for the petitioner, who has raised two fold submissions. The learned counsel has argued that a valuable right available to the Northern Minerals to get the sample re-analysed from the Central Insecticides Laboratory has been snatched and its defence would be completely prejudiced. For this proposition, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of State of Haryana V/s. Unique Farmaid P. Ltd., 1999 8 SCC 190. For this proposition, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of State of Haryana V/s. Unique Farmaid P. Ltd., 1999 8 SCC 190. The learned counsel has further argued that in any case petitioner could not be prosecuted consent has been given to prosecute the Northern Minerals only as he is merely a Manager Coordination. 5. Ms. Radhika Suri, learned State Counsel has pointed out that in cases covered by the Insecticides Act some time is bound to be consumed after the sample is taken and sent to the Insecticides Laboratory for analysis. After the analysis report comes, only then the Insecticides Inspector could apply for consent and in most of the cases by the time consent comes and a registered notice is sent to the accused, the shelf life of the sample expires. Therefore, the filing of complaint becomes meaningless after the consent because the right of the accused is prejudiced. 6. After hearing the learned counsel for the parties, I am of the considered view that once the shelf life of the sample has expired in September, 1996 and the same was not sent for re-analysis to the Central Insecticides Laboratory in accordance with the request made by the Northern Minerals, the right of defence of Northern Minerals is completely prejudiced. As the provision is mandatory in accordance with the judgment in the case of Unique Farmaid (P) Ltd. (supra), the complaint is liable to be quashed. Following the views taken in State of Punjab V/s. National Organic Chemical Industries Ltd., 1996 11 SCC 613, their Lordships of the Supreme Court in Unique Farmaids case (supra) held as under : "In State of Punjab V/s. National Organic Chemical Industries Ltd. this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have the sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost despatch 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 on him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused . . . . . . . . The Court held that the accused had been deprived of a valuable right statutorily available on him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused . . . . . . . . . . It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticides Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases the Insecticides Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the Court, the shelf life of the sample had already expired and no purpose would have been served informing the Court of such an intention. The report of the Insecticides Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case the accused have been deprived of that right, thus prejudicing them in their defence." 7. The principles laid down by the Supreme Court in the judgments quoted above are fully applicable to the facts of the present case. The date of manufacture of Cypermethrin 25% EC is October, 1994 and it was to expire in September, 1996. The complaint was presented on 28/09/1996. Therefore, the complaint was liable to be quashed. 8. It is pertinent to mention that under sub-section (3) of Section 24 of the Act after issuance of notice by the Insecticides Inspector to the accused in accordance with sub-section (3) of Section 24, a request is made for re-analysis of the sample either to the Insecticides Inspector or the Court. The request is required to be made in writing by the accused within a period of 28 days. The request is required to be made in writing by the accused within a period of 28 days. Once the reply in writing for re-analysis of the sample has to be sent either to Court or to Insecticide Inspector nothing refrains the Insecticides Inspector to send the sample for re-analysis to the Central Insecticides Laboratory. Even if the Insecticides Inspector had sent the sample to the Central Insecticides Laboratory at the first instance, the mandatory provision of Section 24 would stand complied with and no request for re-analysis of the sample would be required to be entertained. The view that the Insecticide Inspector is entitled to send the sample for reanalysis from the Central Insecticide Laboratory is supported by Section 24(3) of the Act which reads as under : "24. Report of Insecticide Analyst. (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. 9. From the perusal of sub-section (3) of Section 24 of the Act, it is evident that a person accused of an offence under the Act has to send in writing his intentions to adduce evidence to controvert the report of the Insecticide Analyst. According to the provision, such a request in writing can either be addressed to the Insecticide Inspector or the Court. At this stage if the matter is pending before the Court then the Court would get the sample re-analysed from the Central Insecticide Laboratory or if the matter is pending with the Insecticide Inspector, he could do the same. In Unique Formaids case (supra), the argument of the State of Haryana that Insecticide Inspector was not competent to send the sample to the Central Insecticide Lab. was not approved by the Supreme Court. In Unique Formaids case (supra), the argument of the State of Haryana that Insecticide Inspector was not competent to send the sample to the Central Insecticide Lab. was not approved by the Supreme Court. The observations of the Supreme Court in this regard reads as under : "It has been submitted before us as well as before the High Court that the Insecticide Inspector was not competent to send the sample for retesting to the Central Insecticides Laboratory and that request for retesting should have been made to the Court concerned. Then the State has further submitted that no other defence than prescribed under Section 30 of the Act could be allowed to be raised in the prosecution filed under the Act and further that the shelf life of the sample was not relevant as the Act does not prescribe any expiry date. There is no substance in either of these contentions. If the expiry date is not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the dates of manufacture of the article and the expiry date are mentioned. We do not find any answer to this by the State. In support of this submission, no rule has been cited and no evidence produced showing that the expiry date of the Insecticide is inconsequential . . . . . . . . . ." 10. Therefore, if on the request made by the accused in a case the sample is got re-analysed from the Central Insecticides Laboratory by the Insecticides Inspector, there would be nothing wrong as sub-section (3) of Section 24 gives sufficient support to the adoption of this course. In the present case, the Insecticides Inspector lost the opportunity to send the sample after the receipt of reply of the petitioner on 26/12/1995. He had sufficient time at that stage to do the needful but he failed. 11. For the reasons recorded above, the complaint Annexure P-5 is quashed. Consequently further proceedings taken in pursuance thereof are also quashed. 12. For the view I have taken, I do not consider it necessary to opine on the second submission made by the learned Counsel for the petitioner.