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2002 DIGILAW 1233 (DEL)

HYGIENE PRODUCTS LIMITED v. STATE OF DELHI

2002-08-23

A.K.SIKRI, S.B.SINHA, S.K.AGARWAL

body2002
S. K. AGARWAL ( 1 ) PETITIONER No. 1 is a company holding licence under the Insecticide Act, 1971 for storage and sale of insecticides and petitioner No. 2 is the branch manager of petitioner No. 1 company. They filed the writ petition for quashing of complaint No-179/97, instituted against them by the Plant Protection Officer/licensing officer respondent No. 2, under Section 29 (1) (a) read with sub-clause (i) of clause (k) of Section 3 of the insecticides Act (hereinafter referred to as the act ) and Rule 27 of the Rules framed under the Act for manufacturing, selling and distributing misbranded mats/insecticides. The complaint was also filed against the Manufacturers, respondent Nos. 3 and 4 and the retailers, who are not impleaded as party. By order dated 9th Aptil, 2001 passed by Division Bench, the writ petition was registered as a Crl. M. (Main ). ( 2 ) FACTS in brief are: on 6. 2. 1997 the Notified insecticide Officer, Government of NCT of Delhi visited the petitioner No. 1 and purchased three containers of allethrin 4% WW mats, batch No. 78, manufactured by m/s. Genesis Chempest Pvt. Ltd. (respondent No. 3) on 1/97 with expiry date of 12/98 and marketed by petitioner No. 1. The purchase was effected through cash memo dated 6. 2. 97 for the purpose of analysis. The containers were duly sealed as per rules. One sealed container was handed over to the accused, second was retained in the office and the third was sent to the Government Analyst. Central insecticides Laboratory, for analysis. The report of the analyst revealed that the sample/insecticide was misbranded/substandard. On receipte of the test report dated 19. 3. 97 petitioner no. 1 was asked to explain why the firm had manufactured and conducted the sale of misbranded insecticides, but no satisfactory reply was received, hence, complaint was filed. ( 3 ) ON the above allegations complaint under Section 29 (1) (a) read with sub-lause (i) of clause (k) of section 3 of the Inscticides Act and Rule 27 of the Rules framed under the Act, was filed on 16. 12. 1997 against petitioners as well as manufactures. The learned trial court took cogizance under Section 29 (1) (a) of the Act and summoned the accused persons. Petitioners remained unserved for quite some time and the case is pending at the appearnace stage. 12. 1997 against petitioners as well as manufactures. The learned trial court took cogizance under Section 29 (1) (a) of the Act and summoned the accused persons. Petitioners remained unserved for quite some time and the case is pending at the appearnace stage. I have heard the learned counse for the petitioners and learned APP for the State. ( 4 ) LEARNED counsel for the petitioners argued that one portion of the samples drawn by the Insecticide Inspector was sent for analysis to the Central Insectocide laboratory (for short cil ), Faridabad, in contravention of Section 26 (6) of the Act and that it was incumbent on the Insecticide Inspector to send one portion of the sample to the Insecticide Analyst for test analysis. The sample having been analysed by the CIL in the first instance prejudiced the right of the petitioners to have a second test analysis by CIL in terms of Section 24 (4) of the Act. In support of his submission, reliance was placed on Gupta Chemicals Pvt. Limited and Ors. vs. State of rajasthan and Ors. 2000 IAC 222 (Raj) [decided on 17th november, 1995]; Jot Ram Dharmchand Thapa vs. State of punjab through Insecticides Inspector, Barnala 2002 IAC 135 (Pandh) [decided on 9th February, 1993]; and S. N. Chemicals vs. State of Rajasthan [decided on 8th december, 1999] Learned counsel for respondent argued to the contrary and filed affidavit of Mr. D. K. Thakur project Officer on behalf of State submitting therein that the samples were sent to the CIL. Faridabad, as this laboratory is meant for the whole of India including NCT of Delhi. He placed on record copies of notification in support of the same. It is also stated that the testing facility for Allethrin 4% was availble only at the CIL, faridabad and not at the Regional Pesticide Testing laboratory (for short rptl ) either at Chandigarh or kanpur, therefore, sample for analysis could not have been sent to RPTL in the first instance. ( 5 ) IN order to appreciate rival contentions, it would be appropriate to quote Section 22 (6) and Section 24 (4) of the Act, which read as under : "22. Procedure to be followed by Insecticide inspectors. ( 5 ) IN order to appreciate rival contentions, it would be appropriate to quote Section 22 (6) and Section 24 (4) of the Act, which read as under : "22. Procedure to be followed by Insecticide inspectors. (1) to (5) xxxxxxxxxx (6) The Insecticide Inspector shall restor one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it and shall retain the remainder and dispose of the same as follows :- (i) one portion or container, he shall forthwith send to the Insecticide analyst for test or analysis; and (ii) the second, he shall produce to the court before which proceddings, of any, are instituted in respect of the insecticide. " "24. Report of Insecticide analyst. " (1) to (3) xxxxxxxxxx (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 Analyst s 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 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. " (5) xxxxxxxxxx ( 6 ) UNDER Clause (i) of sub-section (6) of Sction 22, the Insecticide Inspector is required to sand one portion of the sample to the insecticide Analyst and the second sample under clause 2 is to be produced before the court, in which the proceedings are instituted. " (5) xxxxxxxxxx ( 6 ) UNDER Clause (i) of sub-section (6) of Sction 22, the Insecticide Inspector is required to sand one portion of the sample to the insecticide Analyst and the second sample under clause 2 is to be produced before the court, in which the proceedings are instituted. The "insecticide analyst" is defined under Section 3 (f) of the Act to mean an insecticide analyst appointed under Section 19 of the act, and Section 19 provides that the Central Government or the State Government may, by notification in the official Gazette, appoint any person, in such numbers as it thinks fit, possessing such technical and other qualifications, as may be prescribed to be Insecticide analyst for such areas and in respect of such insecticides or class of insecticides, as may be specified in the notification, provided that no person who has any financial interest in the manufacture, import or sale of any insecticide, shall be so appointed. Thus, "insecticide analyst" referred to in clause (1) of sub-section 6 of Section 22, would include the Insecticide analyst appointed either by the Central Government or the state Government, as the case may be. This stands clarified from sub-section (4) of Section 24 which begins with the words. "unless the sample has already been tested or analysed by the Central Insecticide Laboratory. . . . " The opening word "unless" in the Section provides an exception to the right conferred by this rule. The Section envisages sending of the sample to the CIL only if it has not already been tested there. In case the sample, at the first instance is tested at the CIL, the question of the accused losing the right of getting a second testing at the CIL cannot be said to have been violated. The Supreme court in Ram Shankar Mishra v. State of U. P. (1980) 1 scc 255 , while rejecting a similar contention based on sections 23 (4) and 25 (1) and (4) of the Drugs and Cosmetics act, 1940, held that the words, "unless sample has been tested or analysed in the Central Drugs Laboratory" clearly indicates that the provision under Section 25 (4) for sending the sample through the Court one method of sending it to the Director of Central Drugs Laboratory the other one being sending it directly. It was held :- "3. It was held :- "3. According to the learned counsel for the appellant, the sample ought to have been given to the analyst at Luchnow 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. Section 25 (1) deals with the reports of Government analyst. Section 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. Section 25 (4) contemplates sending of the sample through court. It provides that unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (5) notified his intention of adducing evidence in controversion of Government analyst s 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-section (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 section 25 (1 ). It is significant that sub-section (4) starts with the words, "unless sample has been tested or analysed in the central Drugs Laboratory". These words clearly indicate that apart from the mode prescribed in Section 25 (4), the sample can be sent for analysis to the Central Drugs. Laboratory. 5. The words government Analyst is defined under Section 3 (c) (2) as meaning analyst of drugs or cosmetics appointed by the Central government or State Government under Section 20. These words clearly indicate that apart from the mode prescribed in Section 25 (4), the sample can be sent for analysis to the Central Drugs. Laboratory. 5. The words government Analyst is defined under Section 3 (c) (2) as meaning analyst of drugs or cosmetics appointed by the Central government or State Government under Section 20. Section 20 empowers the State Government and the Central Government by notification in appropriate cases to appoint persons having the prescribed qualifications to be Government analyst. The definition as well as Section 20 mattes 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 in dispute that the director of Central Laboratory is also a government Analyst. " ( 7 ) THE law laid down by the Supreme Court is fully applicable to the facts of this case. In view of the authoritative pronouncement of the Supreme Court. I am enable to agree with the decisions relied upon by learned counsel for the petitioners. The contention raised by learned counsel for the petitioners that, in the first instance, the sample could only be sent to the analyst appointed by the State Government, is without any merit and the same is rejected. I would like to note that the cases cited by the petitioners were decided in the year 1993, or 1995 but they were shown to be reported in IAC 2000 to give an impression that these are recent decisions. Such a practice and publications ought to be discouraged. ( 8 ) LEARNED counsel for the petitioners next argued that if the procedure adopted for testing of samples is contravened to the prejudice of the accused, they have a right to seek dismissal of the complaint. Reliance was placed on the Supreme Court decision in State of Haryana v. Unique Farmaid P. Ltd. and others, 2000 Crl. L. J. 2962. There cannot be any dispute about the observation, made by the Supreme Court, but the facts of the said case were entirely different. No action was taken by the insecticide Inspector to have the sample tested from CIL, as requested by the accused manufacturer and sales officer of the firm and the shelf life of the insecticide had expired by the time the accused were asked to appear in court to stand trial. No action was taken by the insecticide Inspector to have the sample tested from CIL, as requested by the accused manufacturer and sales officer of the firm and the shelf life of the insecticide had expired by the time the accused were asked to appear in court to stand trial. It is not the case here Section 24 (4) of the Act does not apply to the present case, as the samples were duly tested at CIL. ( 9 ) LEARNED counsel for the petitioners next argued that there is delay in filing of the complaint, which deprived the petitioners of their valuable right as the complaint was filed and/or service of summons were effected on them after the expiry of shelf life of the insecticide and that even sanction under Section 31 (1) of the Act was obtained after the expiry of the shelf life of the active ingredient. It was argued that valuable right of the petitioner to get the sample re-analysed was violated. The submission, again, is without any merit. A noticed above, the samples were seized on 6. 2-1997 and CIL report was obtained on 19. 3. 97. On receipt of test report. petitioners were asked to explain the reasons why the firm had manufactured and conducted the sale of misbranded insecticides, but no satisfactory reply was received hence, complaint was filed. The complaint was filed on 16. 12. 1997. The shelf life of the active ingredient had yet not expired and, in any case, as noticed above, the question of getting the samples re-analysed in this case did not arise as the samples were got analysed at the CIL in the first instance itself, since the testing facility at the regional centres for such analysis was not available. No other point was argueed. ( 10 ) FOR the foregoing reasons, I do not find any merit in the petition and the same is dismissed. Trial court is directed to expedite the trial. Trial court record be sent back.