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2002 DIGILAW 83 (RAJ)

Hargovind Rajkumar(M/s) v. State

2002-01-10

D.N.JOSHI

body2002
JUDGMENT 1. - Heard learned counsel for the parties.With the consent of both the parties the case is disposed of finally at the admission stage. 2. The present petition under sections. 482 Criminal Penal Code has been filed to quash the proceedings pending before the learned Judicial Magistrate, Ist Class, Rawatsar in Criminal Case No. 1231/96. 3. The facts of the case in brief are that on 21.12.1983 the complainant has inspected the shop of M/s. Rajesh Pesticide Industries village Gandheri Tehsil Nohar and took samples of BHC 10% dust. The sample was thereafter sent for analysis to the State Pesticide Testing Laboratory Quality Control, Durgapura, Jaipur and report was obtained from him. The Insecticide Analyst in his report mentioned that the sample was found to be misbranded. The details of the sample have been mentioned in memo of inspection dated 21.12.1983, which is as follows:- 1. Name of Insecticide :- BHC 10% dust 2. Batch No. :- B83-310 3. Manufacturing date :- Nov. 83 4. Expirty date :- Nov. 85 5. Stock in hand :- 90 Kgs 6. Date of Supplying :- 7-12-1983 7. Size of sample :- 250 grm 8. Name of Manufacturer :- BL Industries Jaipur-13. DETAILS OF SAMPLE TAKEN 4. After obtaining the sanction, the complaint was filed in the trial Court on 18.4.1985. 5. The petitioners were served the notice on 31.8.1989 and 29.2.1999 on Hargovind and Rajkumar respectively. The date of expiry of the sample as per the memo of inspection was November, 1985. 6. The learned counsel for the petitioner argued that no notice was served to the petitioners and they did not know that any complaint have been filed against them. It is further alleged that report of the Insecticide Analyst was also not sent to them, which is a mandatory provision and the service was effected on the petitioners after the expiry of the sample. Therefore, the petitioners have been deprived of their valuable right to get the sample re-tested by the Central Laboratory, and therefore, the criminal proceedings pending in the Court of Judicial Magistrate, Ist Class be quashed as its continuation will amounts to abuse of the process of the Court. It was further argued that in this very case, a complaint was also filed on the same grounds against M/s. B.L. Industries, which was challenged before this Court in S.B. Criminal Misc. It was further argued that in this very case, a complaint was also filed on the same grounds against M/s. B.L. Industries, which was challenged before this Court in S.B. Criminal Misc. Petition No. 102/99 and this Court vide its judgment dated 11.10.2001 allowed the petition and quashed the proceedings against it. The learned counsel has therefore, prayed that in view of the judgments of the Hon'ble Apex Court as well as this Court, the proceedings before the Judicial Magistrate, Ist Class may be quashed on the ground that the petitioners have been deprived of their valuable right of re-testing the sample by the Central Insecticide Laboratory. 7. Per contra, it was argued by the learned counsel for the non-petitioner that the complaint was filed within the prescribed period and there is no infirmity in the order so as to exercise the powers under sections. 482 Criminal Penal Code and therefore, this petition under section . 482 Criminal Penal Code be dismissed. 8. It has been held in Amery Pharmaceuticals & Anr. v. State of Rajasthan, (2001) 4 SCC 382 that notice to the dealer and distributor is necessary. In the case in hand, no such notice was sent to the petitioners. 9. It has been held in State of Haryana v. Unique Farmaid (P) Ltd., 1999 SCC (Cri.) 1404 that accused to be served before the expiry of a period of shelf-life of the insecticides. As stated above, the sample was taken on 21.12.1983 and its date of expiry was November, 1985. The complaint was produced on 18.4.1985, but the appearance of the petitioners could be procured only on 31.8.1989 and 29.2.1989. Till then, the shelf-life of the sample expired. It has been held in the following cases that where the accused is deprived of the right to get the sample re-tested, allowing to continue the criminal proceedings is of no use : (1) Bayer India Ltd. &Anr. v. State of Rajasthan & Ors., 1997 WLC (Raj.) UC 630 ; (2) State of Punjab v. National Organic Chemical Industries Ltd., 1997 Cr.L.R. (SC) 246 ; (3) M/s. Arti Minerals v. State of Rajasthan, 1992 Cr.L.R. (Raj.) 59 ; (4) Babu lal Agarwal v. Associate Directors & Ors., 1999 Cr.L.J. (Raj.) 3794 ; (5) CyanamidAgro India Ltd. v. State of Rajasthan & Ors., 2000(2) RCC 1463 ; (6) Mohanlal v. State of Rajasthan, 2000 Cr.L.J. (Raj.) 2623 . 10. 10. Without going into the merits of the case, it appears from the documents adduced that the shelf-life of the insecticide taken for analysis expired much prior to the appearance of the accused and no notice and report of the Insecticide Analyst were served upon them to get the samples re-tested before the expiry of the shelf-life of it, if they so desire. Therefore, in the opinion of the Court, the petitioners have been deprived of their valuable right of getting the sample re-tested by the Central Laboratory and it would be abuse of the process of the Court if the proceedings before the learned trial Court are to be continued. In the ends of justice, the proceedings are to be quashed. 11. Taking opinion, I am fortified by the view taken by my learned brother Hon'ble Mr. Justice S.K. Garg in S.B. Criminal Misc. Petition No. 102/99. Therefore, the petition filed by the petitioners under sections. 482 Criminal Penal Code is hereby allowed. The proceedings against the petitioners before the learned Civil Judge (J.D.) and Judicial Magistrate, First Class, Rawatsar in Criminal Case No. 123/96 under sections. 17(1)(A) r/w Section 29(1)(A) of the Insecticide Act, 1968 are quashed.Petition allowed *******