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Rajasthan High Court · body

2002 DIGILAW 1073 (RAJ)

Gupta v. State

2002-05-24

HARBANS LAL

body2002
Honble LAL, J.–This petition under Section 482 Cr.P.C. seeks quashing of the Criminal proceedings pending in Criminal Case No.959/96 for the offences under Sections 29(1)(A) of the Insecticides Act, 1968 (hereinafter called in short, ``the Act) in the Court of learned Judicial Magistrate, Ist Class, Vijaynagar, Sriganganagar. (2). Briefly stated, the relevant facts of the case are that Dr.P.N. Katiyar, the then Agricultural Officer (Plaint Protection)-cum-Inspector Insecticides, IGNP, Anupgarh alongwith Surjeet Singh Asstt. Agricultural Officer and Chhaganlal Sharma Agricultural Area Assistant inspected the shop of Handling Agent M/s.Rajasthan State Agro Industries Corporation Ltd. C/o Tharnia Agro Services Centre, Jaitsar on 23.2.92 at 11.45 a.m. in the presence of its owner Shri Gopiram Tharnia. They took and sealed the samples of methyle parathion 2 per cent Dust bearing batch No.160 manufacturing date November, 1992 and expiry date after 1994 manufactured by M/s.Gupta Chemicals, Jaipur as per Rules. A sample was forwarded directly to the Director Central Insecticides Laboratory for chemical examination and analysis. The report of the chemical examination and analysis dated 22.3.93 was received and as per this report, the sample was found to be mis- branded as active ingredient content was found only 1.84 per cent instead of 2 per cent Dust as was shown on the sample. A notice alongwith a copy of the report was sent to the Handling Agent M/s.Rajasthan State Agro Industries Corporation Ltd., Jaitsar as well as to the petitioners on 12.3.93. The petitioners sent their reply through letter dated 24.3.93 and submitted that the sample be got tested but that was not done. The complaint in this case was filed in the Court of learned Judicial Magistrate, Anupgarh on 16.3.94 whereupon cognizance was taken and the accused persons were summoned for 18.8.94 on which date, power was filed on their behalf. Then the case was transferred to the newly created Court of the Judicial Magistrate, Vijaynagar where it is now pending. (3). As no substantial progress was made in the trial of the case for over two years, the petitioners applied to the Court below to drop the proceedings but their application was dismissed on 7.12.96. They preferred a revision before the learned Additional District and Sessions Judge, Raisinghnagar which was also dismissed on 18.3.2000. (3). As no substantial progress was made in the trial of the case for over two years, the petitioners applied to the Court below to drop the proceedings but their application was dismissed on 7.12.96. They preferred a revision before the learned Additional District and Sessions Judge, Raisinghnagar which was also dismissed on 18.3.2000. Thereafter, alleging that the pendency of these criminal proceedings is nothing but an abuse of the process of the Court, the petitioners have filed this petition inter-alia on the ground that in spite of their request to get the sample tested and analysed it has not been done and in the meanwhile, the shelf life of the sample has expired in April, 1994 before their appearance in Court on 18.8.94. So they have been deprived of their valuable right to get the sample tested. The other ground taken in the petition is that the learned Courts below have fallen into grave error in not dismissing the complaint in spite of the pronouncement of the Honble Supreme court in the `Common Cause Case (1). (4). Learned counsel for the petitioners has not pressed the ground with regard to dropping of criminal proceedings pending against the petitioners on the ground of `Common Cause Cases in view of the latest pronouncement of the Seven Judges Bench of the Honble Supreme court in the case of P. Ramchandra Rao vs. State of Karnataka (2) wherein the aforesaid judgment in the `Common Cause Case has been declared to be not good law. (5). Now, the sole contention of the learned counsel for the petitioners, is that the sample having been got examined by the Director Central Insecticides Laboratory, Faridabad, the accused- petitioners have been deprived of their valuable right to get it tested by the Central Insecticides Laboratory and to get the report of the State Analyst superseded by the report of the Director Central Insecticides Laboratory. In this regard, the learned counsel has placed reliance on M/s. Bharat Insecticide Limited & Ors. vs. The State of Rajasthan & Anr. (3) and M/s. S.N. Chemical & Anr. vs. State of Rajasthan & Ors. (4). (6). In this regard, the learned counsel has placed reliance on M/s. Bharat Insecticide Limited & Ors. vs. The State of Rajasthan & Anr. (3) and M/s. S.N. Chemical & Anr. vs. State of Rajasthan & Ors. (4). (6). Learned Public Prosecutor on the other hand has submitted that the petitioners having already availed of their remedy by way of filing criminal revision before the learned Additional Sessions Judge this petition under Section 482 Cr.P.C. is not maintainable as it tantamounts to circumvention of the specific bar provided in Section 397(3) of the Cr.P.C. (7). I have given my anxious and thoughtful consideration to the rival submissions made at the bar and have also gone through the record. (8). It may be stated at the outset that it is not in dispute and is rather an admitted fact that the sample in this case was not got tested by the State Analyst but was sent straight to the Director Central Insecticides Laboratory, Faridabad and as per its report the sample has been found to be misbranded. (9). No doubt, in the aforementioned authorities relied upon by the learned counsel for the petitioners, it has been held that by getting the sample tested by the Director C.I.L., in the first instance, the petitioners are deprived of their valuable right to get it tested by it and on that ground the proceedings have been quashed in those cases. But the Honble Supreme court in the case of Ramshanker Mishra vs. State of U.P. (5) has held otherwise. It was a case under the Drugs and Cosmetics Act, 1940 where the Inspector of Drugs, Kanpur went to the shop of M/s.Mishra Bros. on 22.2.66 and purchased 4 packets of Prednisolone which was stocked there and sent the same to Director Drugs Control, Calcutta for analysis. The report of the Director indicated that the sample was of sub-standard quality. A complaint was lodged by the Drugs Inspector against the appellant Ramshanker Mishra for the offence punishable under Section 27 of the Drugs and Cosmetics Act, 1940 and after trial he was held guilty and sentenced. The appeal as also the revision filed by him were dismissed and while dismissing the review petition the High Court granted a certificate on the ground that it raised substantial questions of law. The appeal as also the revision filed by him were dismissed and while dismissing the review petition the High Court granted a certificate on the ground that it raised substantial questions of law. It may be pertinent and appropriate to state here that the provisions of Section 25(4) of the Drugs and Cosmetics Act, 1940 are admittedly identical to the provisions of Section 24(4) of the Act, which reads as under:- ``Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub- section (3) notified his intention of adducing evidence in controversion of a Government Analysts report, the court may, of its own motion or in its discretion at the request either of the complaint or the accused; cause the sample of drug or cosmetic produced before the Magistrate under sub-section (4) of Section 23 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 Drugs Laboratory the result thereof, and such report shall conclusive evidence of the facts stated therein. (10). A similar question as in the present case was raised in that case and the Honble Supreme Court while discussing the same has observed as under:- ``The question which was raised before the High Court was that the sample taken by the Inspector was not sent to the Director, through the Court and, therefore, his report is inadmissible in evidence. According to the learned counsel for the appellant, the sample ought to have been given to the Analyst at Lucknow under Section 25(1) of the Act and should not have been sent direct to the Director of Central Drugs Laboratory, Calcutta. the submission is that by sending the sample straight to the Director, Central Drugs Laboratory, Calcutta, the appellant was deprived of his right under Section 25(4) of requesting the Court to send the sample for analysis by the Central Drugs Laboratory. We do not see any substance in this contention. Sec.25(1) deals with the reports of Government Analyst. Sec.25(1) provides that the government analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis, shall deliver to the Inspector submitting it, a signed report in triplicate in the prescribed form. We do not see any substance in this contention. Sec.25(1) deals with the reports of Government Analyst. Sec.25(1) provides that the government analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis, shall deliver to the Inspector submitting it, a signed report in triplicate in the prescribed form. The sub-section contemplates two modes of sending samples one by sending the drug for test under sub-section (4) of Section 23. There is no restriction as to how a sample of the drug or cosmetic has to be submitted by the Drugs Inspector. Sec.25(4) contemplates sending of the sample through the court. It provides that unless the sample has already been tested Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of Government Analysts report at the request either of the complainant or the accused cause the sample of the drug or cosmetic produced before the Magistrate under sub-Sec. (4) of Section 23 to be sent for test or analysis to the laboratory. 4. The mode prescribed under Section 25(4) is one method of sending it to the Director of the Central Drugs Laboratory. The other method is by the Drugs Inspector sending it direct as contemplated under the first part of Sec.25(1). It is significant that sub-section (4) of Section25 starts with the words ``unless the sample has already been tested or analysed in the Central Drugs Laboratory. These words clearly indicate that apart from the mode prescribed in Sec.25(4), the sample can be sent for analysis to the Central Drugs Laboratory. (11). It has further been observed by the Honble Apex Court as under:- ``..........The definition as well as Sec.20 makes it clear that the Government analyst would include all Analysts appointed by the State Government as well as by the Central Government. It is not disputed that the Director of Central Laboratory is also a Government Analyst. (12). Their Lordships have recorded the conclusions thus:- ``We are satisfied that there is no prohibition under the Act or the Rules barring the Inspector from sending the sample direct to the Director, Central Drugs Laboratory. Sec.25(1) and (4) clearly contemplate sending of the sample direct to the Central Drugs Laboratory. (13). (12). Their Lordships have recorded the conclusions thus:- ``We are satisfied that there is no prohibition under the Act or the Rules barring the Inspector from sending the sample direct to the Director, Central Drugs Laboratory. Sec.25(1) and (4) clearly contemplate sending of the sample direct to the Central Drugs Laboratory. (13). Thus, it is plain that the Honble Apex court while interpreting the relevant identical provision has laid down the law with regard thereto in clear and unambiguous terms and the contention of the learned counsel for the petitioners has little force and cannot be accepted in view of this pronouncement of the Honble Apex Court. (14). So far the contention of learned Public Prosecutor with regard to maintainability of this petition is concerned it is no doubt well-settled principle of law that the party having availed of the remedy of revision before the learned Sessions Court cannot raise the same issue before this court under Section 482 Cr.P.C. by invoking its inherent powers as it would normally tantamount to circumventing the specific bar provided under Section 397(3) Cr.P.C. and it is also well settled that inherent powers vested in this Court under Section 482 Cr.P.C. ought to be exercised sparingly and with circumspection and in the rarest of rare cases and that too only for the object and purpose provided in the Section. But, it is equally well settled proposition of law that where the order of the courts below is palpably illegal and it amounts to abuse of the process of the Court, the bar under Section 397(3) Cr.P.C. would not apply on the exercise of inherent powers under Section 482 Cr.P.C. and this Court would be justified to intervene and quash the order of courts below because to allow to stand such illegal order would clearly tantamount to abuse of the process of the court. The exercise of inherent powers in such a case would be not only justified but very much warranted and called for but in the light of conclusion arrived at in the instant case on the basis of the authoritative pronouncement of the Honble Apex Court as discussed above, no case for exercise of inherent powers under Section 482 Cr.P.C. is made out, this petition having no merit and substance deserves to be dismissed. (15). In the result, this petition is hereby dismissed.