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2002 DIGILAW 1409 (PNJ)

Udesh Kumar v. State Of Punjab

2002-12-18

S.S.SARON

body2002
Judgment S.S.Saron, J. 1. The present criminal revision petition has been filed by Udesh Kumar partner of M/s Murria Khad Store, Kapurthala, against the order dated 22.3.1990 passed by the learned Additional Sessions Judge, Kapurthala, whereby he accepted the revision petition of the State and set aside the order passed by the learned Chief Judicial Magistrate, Kapurthala. It was directed by the Revisional Court to frame charge against the petitioner in a complaint filed by the Insecticide Inspector. 2. The facts of the case are that Balwinder Singh Insecticide Inspector, Kapurthala, inspected the shop of M/s Murria Khad Store, at village Sanghian, Tehsil & District Kapurthala on 20.7.1987, a licensed dealer of pesticides/insecticides having a licence at that time valid upto 31.12.1988. After disclosing his identity and verifying the stock, he selected three containers one litre each of Machettee Brand Herbicide (technical name `Butachlor) for sampling. Price of two containers, one litre each amounting to Rs. 170/- was paid to accused Udesh Kumar. As per the stock register there were 20 tins of Machettee (Butachlor 50% EC). Necessary forms under Rule 33 of the Insecticides Rules 1971, (for short - the Rules) was prepared in the presence of Udesh Kumar and Harpal Singh Agricultural Inspector, Kapurthala Block, who attested the seizure memo. Each container of sample alongwith necessary form was sealed. Accused Udesh Kumar was given an opportunity to put his own seal on the sample as well as on the forms. He put the metallic seal of his firm on the three portions of the sample and the forms. The sample was taken in accordance with the procedure provided under the Insecticide Act, 1968, (for short - the Act) and Rules. Accused Udesh Kumar signed the relevant forms in token of inspection and withdrawal of sample according to the procedure. One portion of the sample was handed over to Udesh Kumar accused and the other two portions were brought to the office. Thereafter one sample duly packed and sealed was despatched to the Senior Analyst, Insecticides Testing Laboratory, Department of Agricultural, PAU Campus, Ludhiana. The report of the Analyst was received on 26.8.1987 which was to the following effect :- "The sample does not conform to ISI specifications in respect of its percentage active ingredient contents." Accordingly, the sample was declared misbranded in terms of Section 3(k)(i) of the Act. The report of the Analyst was received on 26.8.1987 which was to the following effect :- "The sample does not conform to ISI specifications in respect of its percentage active ingredient contents." Accordingly, the sample was declared misbranded in terms of Section 3(k)(i) of the Act. The insecticide in question was manufactured by M/s Monsanto Chemicals India Limited, which is also impleaded as an accused. Thus, it was contended that the accused had committed the offence under Sections 17 and 18 read with Section 3(k) and Section 29 of the Act. 3. On the basis of the above allegations, a complaint was filed in the Court of Chief Judicial Magistrate, Kapurthala, on 16.8.1988. The learned Chief Judicial Magistrate at the stage of consideration for framing of charge found taht the prosecution had failed to establish a prima facie case to frame a charge against the accused. Accordingly, the accused was discharged vide order dated 28.3.1989. Against the said order, the State filed revision petition before the learned Sessions Judge, Kapurthala. The learned Additional Sessions Judge, Kapurthala, vide his impugned order dated 22.3.1990 set aside the order of the Chief Judicial Magistrate and directed it to frame charge against the accused in accordance with the order. It is against the said order dated 22.3.1990 that the present criminal revision petition has been filed. 4. The grounds for assailing the order dated 22.3.1990 are that the learned Additional Sessions Judge had exceeded his jurisdiction under Section 397 of the Code of Criminal Procedure and he had no jurisdiction in law to direct the trial Court to frame a charge against the petitioner. It is contended that the sample was taken on 20.7.1987 and the report of the Analyst was received on 26.8.1987. The complaint was instituted on 16.8.1988. However, the sanction for instituting the complaint was given on 22.8.1988 by which time the sample had already expired in January 1988. In this manner, it is contended that he right of the accused to get the second sample re-analysed so as to controvert the report of the Insecticide Analyst stood defeated which has resulted in grave prejudice. It is also contended that no proper consent under Section 31 of the Act had been granted for instituting the complaint against the petitioner. Section 24 of the Act, the violation of which has primarily been alleged may be noticed. It is also contended that no proper consent under Section 31 of the Act had been granted for instituting the complaint against the petitioner. Section 24 of the Act, the violation of which has primarily been alleged may be noticed. The same reads as under :- "24. 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 (thirty) 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 and 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 controvers 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 contraversion 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 section 22 to be sent for test or analysis to the said laboratory, [which shall, within a period of thirty days, 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." 5. Section 24 of the Act, therefore, deals with the report of the insecticide analyst. (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." 5. Section 24 of the Act, therefore, deals with the report of the insecticide analyst. In terms of sub-section (3) of Section 24, the report signed by an Insecticide Analyst is to be conclusive evidence against a person from whom the sample had been taken only if he had an opportunity to notify his intention to contest its correctness as mentioned therein but had not availed of such an opportunity. Sub-section (4) of section 24 of the Act envisages that unless the sample has already been tested or analysed in the Central Insecticide Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in contraversion 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 section 22 to be sent for test or analysis to the said Laboratory, which shall within a period of thirty days make the test or analysis and report in writing the result thereof. Such report is conclusive evidence of the fact stated therein. Therefore, sub-section (4) of Section 24 comes into operation only when the sample has not already been tested or analyzed in the Central Insecticide Laboratory. 6. In the present case the learned Additional Session Judge in his impugned order has recorded that : ".....the complaint was filed on 16.8.1988 about 1- 1/2 to 2 months after the date of expiry of the sample i.e. January 1988 does not effect (sic affect) in any way because Balwinder Singh PW-1 stated in his cross-examination that a notice was sent to the accused informing them about the report of the Analysis. So the lower Court has wrongly held that opportunity was not given to the accused to get the sample tested." In fact admittedly the complaint was filed on 16.8.1988, which works out to almost eight months after the expiry of the sample in January 1988 and it cannot be said that the complaint was filed about one and half/two months after the expiry of the sample in January 1988. Besides, it is not clear as to at what point of time did Balwinder Singh Agriculture Inspector inform the accused about the report of the Insecticide Analyst. In other words, whether intimation was given before January 1988 or thereafter. The date of giving intimation would be material as the expiry of the sample is admittedly in the month of January 1988. It was for the prosecution to show at what point of time the necessary intimation was given. A mere bald statement of Balwinder Singh PW-1 that notice was sent to the accused informing them about the report would not satisfy the requirements of Section 24(2) of the Act, which requires the Insecticide Inspector to deliver one copy of the report of the Insecticide Analyst to the person from whom the sample was taken. Therefore, failure to show that the report of the Insecticide Analyst was delivered to the petitioner or in any case, if delivered, when it was delivered keeping in view the life of the sample has resulted in prejudice to him inasmuch as he was unable to take steps of his intention to adduce evidence in controversion of the report as provided for under Section 24(3) of the Act. 7. In my view once the shelf life of the sample had expired and there is nothing substantial on record to show as to whether the report of the Insecticide Analyst been furnished to the petitioner and, if furnished, at what point of time it was furnished so as to enable him to notify his intention that he intends to adduce evidence in controversion of the report in terms of Section 24(3), no meaningful analysis of the sample can be done so as to controvert the report of the Insecticide Analyst. Therefore, the petitioner has been deprived of his statutory right to adduce evidence in controversion to the report of the Insecticide Analyst, which vitiates the case of the prosecution and causes serious prejudice to the defence of the petitioner. 8. Therefore, the petitioner has been deprived of his statutory right to adduce evidence in controversion to the report of the Insecticide Analyst, which vitiates the case of the prosecution and causes serious prejudice to the defence of the petitioner. 8. In view of the above it is not necessary to deal with question as to whether the complaint was instituted with the written consent of the State Government or by an officer authorised by it in this behalf in terms of Section 31(1) of the Act, which envisages that no prosecution for an offence under the Act is to be instituted except by or with the written consent of the State Government or a person authorised in this behalf by the State Government. 9. In the result, the revision petition is accepted and the order of the learned Additional Sessions Judge, Kapurthala, dated 22.3.1990 is quashed and that of the learned Chief Judicial Magistrate dated 28.3.1989 is restored. Revision allowed.