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2003 DIGILAW 145 (RAJ)

Dr. G. N. Khajuria v. State of Rajasthan

2003-01-31

H.R.PANWAR

body2003
JUDGMENT 1. - By this criminal misc. petition under Section 482 C.P.C., petitioners seek quashing of criminal complaint/Case No. 194 of 1985 pending against them in the court of Chief Judicial Magistrate, Bikaner (hereinafter referred to as 'the trial court'). 2. Briefly stated facts to the extent they are relevant and necessary for decision of instant criminal misc. petition are that on 4.12.1984 Harbansh Singh Jakhar, Insecticide Inspector and District Extension Officer, Department of Agriculture, Indira Gandhi Nahar Pariyojana, Pungal, Bikaner, appointed under Section 20 of the Insecticides Act, 1968 (for short 'the Act') by notification of State Government dated 8/7/1982, visited the shop premises of M/s. Agarwal and Brothers, Khajuwala, of which Satish Kumar. and Smt. Kamlesh Agarwal are the partners, took sample of insecticide Aldrin 30 EC having batch No. 3, date of manufacture July, 1984 and date of expiry June, 1986. The said sample was divided into three equal parts and were sealed in three separate packets. The Insecticides Inspector gave one sample of sealed packet to Shri Satish Kumar, partner of the said firm and sent second packet for analysis to the State Pesticide Testing Laboratory, Quality Control, Durgapura, Jaipur, and third sample was kept with the Insecticide Inspector. The analysis report dated 4.2.1985 of the State Pesticide Testing Laboratory, Quality Control, Durgapura, Jaipur, was received by the Insecticide Inspector within 60 days. The analysis report reveals that the sample of Aldrin 30 EC does not conform to the relevant is specification 1307-1982 in the active ingredient. Hence, it was found to be mis-branded. On being informed of analysis report to M/s. Agarwal and Brothers, through its representative Mr. Satish Kumar, the Insecticide lnspector was informed by him that the Insecticide in question was purchased by the said firm from M/s. Garg Fertilizer Company, 66 Jawahar Market, Sri Ganganagar vide bill No. 202 dated 31.8.1984 which was manufactured by M/s. Jai Chemical, Faridabad, Haryana. Petitioners are manager and owner of the firm M/s. Jai Chemical, Faridabad, Haryana. On 16.2.1985, partner of firm M/s. Agarwal and Brothers, Mr. Satish Kumar was informed-that the sample taken from his firm or being analysed by the State Pesticide Testing Laboratory, Durgapura, Jaipur, was found to be sub-standard. The stock lying with M/s. Agarwal and Brothers, was seized and the firm was directed not to sale the said insecticide in market till further orders. 3. Satish Kumar was informed-that the sample taken from his firm or being analysed by the State Pesticide Testing Laboratory, Durgapura, Jaipur, was found to be sub-standard. The stock lying with M/s. Agarwal and Brothers, was seized and the firm was directed not to sale the said insecticide in market till further orders. 3. Consent to launch prosecution was sought from the State Government under section 31 of the Act. The Joint Director (Plant Protection), Rajasthan, Jaipur, in exercise of powers conferred under sub-section (1) of Section 31 of the Act, vide its order dated 7.4.1985 gave a written consent on behalf of the State Government. The Joint Director (Plant Protection), Rajasthan, was authorised by the Government vide Notification No. F4(4)Agri/Gr. 2/A/79 to institute a case for prosecution under Section 29(1) (a) of the Act (Central Act 46 of 1968) against the petitioners and others. A complaint was filed before the trial court on 4.10.1985. By order dated 4.10.1985 the trial court took cognizance of the offence against the petitioners and others and issued process by summoning the petitioners and other persons named in the order. On 1.4.1988 notices issued to the petitioners were served. The petitioners have filed the instant criminal misc. petition on 3.8.1995 seeking quashing of the complaint in question and the proceedings initiated against them in furtherance of the said complaint. 4. I have heard learned counsel for the petitioners and the learned Public Prosecutor for the State. Perused the record of the trial court. 5. It is contended by the learned counsel for the petitioners that the sanction/order of consent to institute a case for prosecution is without application of mind. It is further contended that the report received from the State Pesticide Testing Laboratory, Quality Control, Durgapura, Jaipur was not sent to the petitioners before filing the complaint and lastly, it is contended that the petitioners have been deprived of a valuable right of getting the sample tested from the Central Insecticides Laboratory. 6. Learned Public Prosecutor appearing for the State supported the order of the trial court taking cognizance and contended that the petitioners are the manufacturer of insecticide Aldrin, which was tested and analysed by the State Pesticide Testing Laboratory, Durgapura, Jaipur and on analysis it was found to be mis-branded and, therefore, along with dealer the manufacturer is also liable for the offence under the Act. 7. 7. From the material placed on record, it is clear that the Insecticide Inspector sent the relevant papers to the Joint Director, Agriculture Officer (Plant Protection), Rajasthan, Jaipur seeking a written consent for launching prosecution against the petitioners. The Joint Director, Agriculture Officer (Plant Protection), Rajasthan, Jaipur after careful perusal accorded written consent to institute the case for prosecution vide order dated 7.5.1985 on the basis of the material placed before it. Thus, it cannot be said that the concerned authority had not applied its mind before giving written consent to institute the case for prosecution against the petitioners. 8. So far as the report dated 4.2.1985 received from the State Pesticide Testing Laboratory, Durgapura, Jaipur is concerned, it was conveyed to M/s. Agarwal and Brothers, through its representative Satish Kumar. However, it nowhere appears from the record that the said report was ever sent to the petitioners . The petitioners at best can be said to have knowledge of the analysis report, showing sample taken having been found mis-branded, only from the date of service of notice on them i.e. 1.4.1998. The insecticide Aldrin 30 EC having batch No. 3 ended shelf life by June, 1986 as is evident from the sample card, Form No. XIII under Rule 34 of the Pesticide Rules, 1971 (for short 'the Rules') and analyst report dated 4.2.1985. Thus, shelf life of the insecticide in question had expired much before notice of the proceeding to the petitioners. 9. Section 24 of the Act deals with report of insecticide analyst which 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 sixty 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. (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 controversion 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 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 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." 10. Sub-section (3) of Section 24 of the Act provides that 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 within twenty-eight days of the receipt of a copy of the report notified in writing to 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. This clause provides valuable defence to the accused and, therefore, compliance of sub-section (3) of Section 24 of the Act is mandatory in nature. This clause provides valuable defence to the accused and, therefore, compliance of sub-section (3) of Section 24 of the Act is mandatory in nature. A valuable right is conferred on the accused to adduce evidence in controversion of the report received from the State Pesticide Testing Laboratory by getting the sample tested from the Central Insecticide Laboratory, as envisaged under sub-section (4) of Section 24 of the Act. Thus, in order to safeguard the right of the accused to have sample tested from the Central Insecticide Laboratory, it is incumbent on the prosecution to serve the report of Insecticide Analyst and if the accused from the receipt of the report within twenty-eight days do not notify in writing to the Insecticide Inspector or the court before which the proceedings are pending that he intends to adduce evidence in controversion of the report, the right of accused would be lost. In the instant case, since the report was to served on the petitioners and by the time petitioners were served by the notice of the court, shelf life of the insecticide in question had already expired and, therefore, a valuable right of the petitioners to get the sample tested from the Central Pesticide Laboratory, had lost and under these circumstances, putting the petitioners for trial would be a futile exercise and abuse of the process of court. 11. In State of Haryana v. Unique Farmaid (P) Ltd. and others, 1999 SCC (Cri.) 1404 , the Hon'ble Supreme Court observed as under : "The procedure for testing the sample is prescribed and if it is contravened to the prejudiced of the accused, he certainly has the right to seek dismissal of the complaint. There cannot be two opinion about that. Then in order to safeguard the right of the accused to have the sample tested from the Central Insecticide Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, the expiry date of the insecticide was already over and sending of the sample to the Central Insecticide Laboratory at that late stage would be of no consequence." 12. The Hon'ble Supreme Court, however, stressed the need to lodged the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Hon'ble Supreme Court, however, stressed the need to lodged the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable statutory right available to him. On this view of the matter, the Hon'ble Supreme Court did not allow the criminal complaint to proceed against the accused. 13. Having considered the entire material placed on record, I am of the considered view that in the instant case the accused petitioners have been deprived of their valuable right to have the sample of insecticide tested from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act. The report of the State Pesticide Testing Laboratory dated 4.2.1985 cannot be said to be conclusive of the fact stated therein. The Analysis Report would have been conclusive evidence of facts stated therein, if the petitioners would have been served with the report of the analyst and the accused petitioners did not notify in writing to the Insecticide Inspector or the trial court before which proceeding is pending within twenty-eight days of the receipt of the analyst report showing their intention to adduce evidence in controversion of the analyst report. In the instant case, it is evident from the record that the report of the analyst was not served on the petitioners and, therefore, they had no opportunity to notify in writing to the Insecticide inspector or the trial court before which the proceeding is pending that they intend to adduce evidence in controversion of the Analyst's Report. Thus, from the facts discussed above, it is clear that a valuable right which has been conferred on the petitioners under sub-sections (3) & (4) of Section 24 of the Act, to have the sample tested from the Central Insecticides Laboratory, has been denied. Thus, the petitioners have been deprived of the right which could be exercised by them and serious prejudice in their defence has been caused and on this account, the criminal complaint/case pending ,Against them, so far as it relates to the petitioners, deserves to be quashed. 14. In view of the aforesaid discussion, this criminal misc. petition is allowed and the criminal complaint/Case No. 194/1985 pending in the court of Chief Judicial Magistrate, Bikaner, qua petitioners is quashed.Petition allowed. *******