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2004 DIGILAW 1260 (PNJ)

Sandoz (India) Ltd. v. State Of Punjab

2004-11-17

SATISH KUMAR MITTAL

body2004
Judgment Satish Kumar Mittal, J. 1. In the instant petition filed under Section 482 of the Code of Criminal Procedure, the petitioner company, through its authorised signatory, has prayed for quashing of the complaint (Annexure P-4) filed by the Insecticides Inspector under Sections 2K(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 (hereinafter referred to as the Act) read with Rule 27(5) of the Insecticides Rules, 1971 and the consequential proceedings arising therefrom. 2. The petitioner company had been manufacturing insecticides and pesticides and selling the same through various distributors throughout India. M/s. Guru Nanak Kheti Store, Link Road, Jagraon was one of its appointed dealers for selling insecticides and pesticides. On 22.9.1994, Insecticides Inspector took samples of Ekalus (Quinalphos) 20% AF bearing Batch No. PTF 4 E/002201 manufactured in the month of May, 1994 from the shop of the aforesaid dealer. The said sample was taken in a sealed container contained in 100 ML packing. At that time, Form No. XII was filled up by the Insecticides Inspector, wherein the date of expiry of the sample was mentioned as April, 1996. Out of three samples taken, one was sent to the Insecticides Testing Laboratory, Amritsar for analysis. As per the report of the Analyst dated 15.10.1994, the sample was misbranded. It was found containing only 22.25% active ingredient content instead of 20% AF Ekalux. In the report dated 15.10.1994, there was some clerical mistake with regard to name of the insecticides. Consequently, the amended report dated 7.11.1994 was issued, wherein it was clarified that in the previous report Quinalphos 25% AF was written instead of 20% AF. 3. The amended report of the Senior Analyst was sent to the dealer as well as the petitioner company vide letter dated 24.11.1994 along with a show cause notice. The dealer, in its reply (Annexure P-1) had stated that the report of the Senior Analyst was not correct and acceptable, therefore, in view of Section 24(3) of the Act, a prayer was made to get a second sample tested from the Central Insecticides Laboratory. The petitioner company also sent two letters (Annexures P-2 and P-3) stating that the sample of the insecticide was not properly analysed, which resulted into wrong result and a correct procedure to analyse sample of Ekalux AF should be supplied. 4. The petitioner company also sent two letters (Annexures P-2 and P-3) stating that the sample of the insecticide was not properly analysed, which resulted into wrong result and a correct procedure to analyse sample of Ekalux AF should be supplied. 4. The respondent neither sent the second sample for analysis nor replied any of the letters written by the dealer as well as the petitioner company. Subsequently, on 9.3.1996, respondent filed the complaint (Annexure P-4) in the Court of Sub-Divisional Judicial Magistrate, Jagraon, against the petitioner company as well as its dealer. The said complaint came up for first hearing before the trial Court on the same day. The learned Magistrate, vide order dated 9.3.1996 (Annexure P-5), while dispensing with the mandatory provisions of recording preliminary statement, ordered that the accused be summoned for 19.4.1996. On 19.4.1996 and 25.9.1996, the summons issued to the petitioner company were not received back either served or unserved. Therefore, vide order dated 6.8.1996, the Magistrate ordered issuance of non- bailable warrants against the petitioner for 4.9.1996, on which date the petitioner company appeared and the case was adjourned for pre-charge evidence. By that time, shelf life of the sample had already expired. Therefore, the petitioner company was not in a position to exercise its right provided under Section 24(3) of the Act to get the second sample analysed by the Central Insecticides Laboratory. 5. Hence, the instant petition has been filed for quashing of the complaint on the ground that the shelf life of the sample had already expired in the month of April, 1996, well before the date on which the authorised signatory of the petitioner company appeared before the trial Magistrate and as such, the valuable right of the petitioner company to get the second sample analysed has been taken away and it has been seriously prejudiced in its defence. 6. Pursuant to the notice issued, respondent filed reply, in which the material facts, stated above, have not been disputed. However, it has been submitted that the petitioner company had not applied for the testing of the second sample in the Judicial Court in time, therefore, the second sample could not be sent for testing. 6. Pursuant to the notice issued, respondent filed reply, in which the material facts, stated above, have not been disputed. However, it has been submitted that the petitioner company had not applied for the testing of the second sample in the Judicial Court in time, therefore, the second sample could not be sent for testing. In spite of the knowledge of the first report of the Analyst, the petitioner company had waited for the expiry date and after expiry of shelf life of the sample, its authorised signatory appeared, though the complaint was filed well before the date of expiry of the shelf life of the sample. 7. I have heard the arguments of counsel for the parties. 8. Counsel for the petitioner submitted that by the time, the authorised signatory of the petitioner company put appearance before the trial Magistrate, the shelf life of the sample had already expired. Therefore, the petitioner company has lost its valuable right of re-analysis of the sample under Section 24(3) of the Act. In such a situation, the complaint as well as the proceedings taken therein are liable to be quashed. In support of his contention, counsel for the petitioner relied upon decisions of the Honble Apex Court in State of Haryana v. Unique Farmaid P. Ltd. and others, 1999(4) RCR(Crl.) 540 (SC) : JT 1999(8) SC 162 and M/s. Gupta Chemicals Pvt. Ltd. and others v. State of Rajasthan and another, 2002(4) RCR(Crl.) 762 and decisions of this Court in M/s. Jai Shri Agro Industries Ltd. and others v. State of Punjab, 2003(1) RCR(Crl.) 59; Sanjay Kumar v. State of Punjab, 2003(1) RCR(Crl.) 233 and Mohinder Singh Chauhan and others v. State of Haryana, 2003(2) RCR(Crl.) 571. 9. Counsel for the respondent submitted that the petitioner company was having the knowledge of the first report of the Analyst, but it did not apply to the trial Court for sending the second sample to the Central Insecticides Laboratory for its analysis. Though the complaint was filed within time, but the petitioner company appeared subsequently, after the expiry of shelf life of the sample. 10. Section 24 of the Act reads as under :- "24. Report of Insecticide Analyst. Though the complaint was filed within time, but the petitioner company appeared subsequently, after the expiry of shelf life of the sample. 10. Section 24 of the Act 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. (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 contraversion 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 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 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." 11. In this case, the facts of taking of sample of insecticide on 22.9.1994 from the premises of the dealer and subsequently, finding its sample to be misbranded by the Senior Analyst are not disputed. In this case, the facts of taking of sample of insecticide on 22.9.1994 from the premises of the dealer and subsequently, finding its sample to be misbranded by the Senior Analyst are not disputed. It is also not disputed that on receipt of the show-cause notice and report of the Senior Analyst, letters in the shape of reply were written by the dealer as well as the petitioner company, which have been annexed with this petition as Annexures P-1 to P-3. In letter, Annexure P-1, written by the dealer, it has been specifically stated that report of the Public Analyst was not acceptable to be correct and a prayer was made for re-analysis of the sample from the Central Insecticides Laboratory in view of Section 24(3) of the Act. In spite of that, no effort was made by the respondent to send the second sample to the Central Insecticides Laboratory. It is also not disputed that the expiry date of the seized sample was April, 1996. Though, complaint in this case was filed on 9.3.1996, in which summons were issued to the dealer as well as the petitioner company for 19.4.1996, but as per record of the case, on 19.4.1996, summons were not received back. Therefore, fresh summons were issued for 29.5.1996. Ultimately, the summons were served for 4.9.1996, on which date the petitioner company appeared through its authorised signatory. By that time, shelf life of the sample had already expired. 12. The contention of counsel for the petitioner is that right of the petitioner to get the second sample analysed becomes available to it only after its appearance before the Court. Prior to that, the petitioner could not have applied to the Court for sending the second sample for analysis. When dealer of the petitioner notified his intention in writing to the Insecticide Inspector to get the second sample tested within 28 days of the receipt of the copy of report of the Analyst, at that time, no proceeding in respect of the sample in question was pending in the Court. From the reading of the provision of Section 24 of the Act, in the light of the facts and circumstances of the case, the contention raised by counsel for the petitioner appears to be correct. From the reading of the provision of Section 24 of the Act, in the light of the facts and circumstances of the case, the contention raised by counsel for the petitioner appears to be correct. Section 24 manifests that ordinarily in absence of any material to the contrary, report of the insecticides analyst will be accepted as final and conclusive of the material contained therein. This is, however, subject to the right of the accused to have the sample examined by the Central Insecticides Laboratory. Under sub- section (3) of Section 24 of the Act, report signed by the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused, but if the accused, within 28 days of the receipt of the report, notifies in writing to the Insecticides Inspector or the Court before which proceedings are pending that he intends to adduce evidence to controvert the report, the presumption will not be raised. In the instant case, the Insecticides Inspector sent report of the Analyst on 24.11.1994. Within 28 days of the same, the petitioner as well as its dealer notified in writing that report of the Analyst was not acceptable to them and requested for analysis of the second sample by the Central Insecticides Laboratory. Since at that time, no complaint was pending, therefore, there was no question for the petitioner or its dealer to apply to the Court for the said prayer. The right of the petitioner occurred when the petitioner appeared in the Court in the complaint, filed by the Insecticides Inspector. Sub-section (4) of Section 24 of the Act provides that unless the sample has already been tested or analysed in the Central Insecticides Laboratory, at the instance of the Insecticides Inspector, in view of intention of the person from whom the sample was taken, the court may, of its own motion or in its discretion at the request either of the complainant or of the accused, send the sample for test or analysis to the Central Insecticides Laboratory. In order to safeguard the right of the accused to have the sample tested from the Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously, so that right of the accused is not lost. In order to safeguard the right of the accused to have the sample tested from the Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously, so that right of the accused is not lost. In the present case, by the time the petitioner was asked to appear before the Court, the shelf life of the insecticide had already expired. In that situation, sending of the sample to the Central Insecticides Laboratory would be of no consequence. In The State of Punjab v. National Organic Chemical Industries Ltd., 1998(4) RCR(Crl.) 578 (SC) : JT 1996(10) SC 480, the Honble Apex Court has held as under :- "...... After the receipt of the report, the accused would be notified of the result of the report. Thereafter, the complaint is required to be lodged in this Court. At that stage, two options are open to the accused. The accused is entitled to have one copy of the sample entrusted to him to have it notified to the Court for proving to be contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the Court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under sub-section (3) of Section 24. The other option is, after the complaint is laid in the Court, the copy of the sample that is lodged with the Court by the Insecticides Inspector, would be requested to be sent by the Court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, consent (content ?) and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court. Unfortunately, in this case, the appellant did not adopt the course as was required under the Act. Of course, the respondent, without availing of the remedy of report by Director of CIL, may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail the statutory defence. Of course, the respondent, without availing of the remedy of report by Director of CIL, may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail the statutory defence. The appellant had not given third sample to the respondent. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him. Under these circumstances, we think that further proceedings in the Court of the Chief Judicial Magistrate would be rendered fruitless. Consequently, though for different reasons the complaint quashed by the Court may be justified warranting no interference." 13. The Honble Apex Court has clearly laid down that option to get the sample re-analysed through the court is only available, if the Insecticides Inspector did not send the second sample for analysis inspite of the written request made in time and this option is available only after filing of the complaint in the Court. 14. Similarly, in State of Haryana v. Northern Minerals Ltd. and others, JT 1999(8) SC 162, the Honble Apex Court has held that in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In that case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage was held to be of no consequence. It was further held that it cannot be gainsaid that the respondents in those appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24, report signed by the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In that case, the Insecticides Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and it was held that no purpose would have been served by informing the Court of such an intention. The report of the Insecticide Analyst was held to be not conclusive. 15. In M/s. Gupta Chemicals Pvt. Ltd. and others v. State of Rajasthan and another, 2002(4) RCR(Crl.) 762, the Honble Apex Court has again considered the aforesaid question in the similar circumstances, wherein it was observed as under :- "..... ordinarily in the absence of any material to the contrary, the report of the insecticides analyst will be accepted as final and conclusive of the material contained therewith. This is, however, subject to the right of the accused to have the sample examined by the Central Insecticides Laboratory provided he communicates his intention for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this right vested under the statute is valuable for the defence, particularly, in a case where the allegations are that the material does not conform to the prescribed standard. As noted earlier, in the present case, the appellants had intimated the Insecticides Inspector their intention to have the sample tested in the Central Insecticides Laboratory within the prescribed period of 28 days of the receipt of the copy of the State Analysts report, yet no step was taken by the Inspector either to send the sample to the Central Insecticides Laboratory or to file the complaint in the Court with promptitude in which case the appellants would have moved the Magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the Inspector, it has not been possible for the appellants to have the sample examined by the Central Insecticides Laboratory and in the meantime, the shelf-life of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of Court. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of Court. The High Court was not right in dismissing the petition filed under Section 482 of the Cr.P.C." 16. In view of the aforesaid discussion, it is clear that right of the accused to get the second sample analysed/tested from the Central Insecticides Laboratory under Section 24(4) of the Act arises when the summoned accused appears in the Court. In this case, when the petitioner company appeared before the Court on 4.9.1996, shelf life of the sample had already expired. There is no material on the record that the petitioner company was duly served and they were deliberately not appearing before the trial Court. From the record, it is clear that summons issued to the petitioner company were not served and ultimately it was served only for 4.9.1996, on which date it appeared. Even when non-bailable warrants were issued, the service was not properly effected on the petitioner company. 17. In view of the aforesaid discussion, I do not find any merit in the submissions of counsel for the respondent that in this case, petitioner cannot avail the benefit of the expiry of shelf life of the sample. In my opinion, the valuable right of the petitioner has been infringed. Consequently, the petition is allowed. The complaint (Annexure P-4) and consequential proceedings arising therefrom are, therefore, quashed.