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2004 DIGILAW 50 (ORI)

KUMAR ASSANDAS VAZIRANI v. SUNIL PRAKASH GUPTA

2004-01-22

L.MOHAPATRA

body2004
L. MOHAPATRA, J. ( 1 ) CRIMINAL Misc. Case No. 4961 of 1998 is directed against the order dated 9-1-1998 passed by the learned S. D. J. M. , bhubaneswar in 2 (c) C. C. No. 4 of 1998 taking cognizance of offences under Sections 420 of the Indian Penal Code read with Sections 3 (k), 29 and 33 of the Insecticides Act,1968. Criminal Misc. Case No. 2731 of 1999 is directed against the order dated 13-1- 1999 passed by the learned S. D. J. M. , dhenkanal in I. C. C. Case No. 2 of 1999 taking cognizance of offence under Section 420 of the Indian Penal Code. ( 2 ) PROSECUTION case in Crl. Misc. Case No. 4961 of 1998, as is revealed from the petition is that on 28-2-96 at about 2. 30 p. m. the opposite party No. 1 who is designated insecticides Inspector for Orissa seized phosphamidon 85% S. L. batch No. A0980227 in presence of two witnesses from the shop of opposite party No. 2. The manufacturing date of the seized article was 13- 10-1995 and the expiry date was 12-10-97. After seizure of the article, same was divided into three parts, out of which one part was kept with the opposite party No. 1 and the second part was sent to the Director, Regional Pesticide Testing Laboratory, Kanpur. The Kanpur authority in turn sent the same to Regional Pesticide Testing Laboratory, chandigarh. After testing report was obtained and it was reported that the sample doesn't conform to the relevant I. S. specification and therefore mis-branded. After receipt of the notice the opposite party No. 1 issued notice to show cause to M/s. United phosphorus Limited and the opposite party no. 2 on 5-8-96 with a request to accord permission to launch prosecution against the Firms. The petitioners submitted their show cause within a week and not being satisfied with the show-cause, prosecution was launched after obtaining sanction from the State Government on 26-11-97. After prosecution was launched learned Magistrate took cognizance of offences mentioned above which is under challenge before this court. The petitioners submitted their show cause within a week and not being satisfied with the show-cause, prosecution was launched after obtaining sanction from the State Government on 26-11-97. After prosecution was launched learned Magistrate took cognizance of offences mentioned above which is under challenge before this court. Shri Routray, learned counsel for the petitioners submitted that in the show cause m/s. United Phosphorus Limited had replied that the product of the same batch of drug conforms to the required standard andtherefore they weren't with the agreement with the report of Regional Pesticide Testing Laboratory, Chandigarh and prayed for re-analysis of the sample as required under the statute. However, there was no response to such request. The order is challenged by sri Routrary on further ground that the complaint at Bhubhaneswar is not maintainable since seizure was made at Dhenkanal. According to Sri Routrary, learned S. D. J. M. lacks territorial jurisdiction to entertain the complaint. Further ground raised in the application is that the opposite party No. 2 is not the retailer nor a licensee to sell the product of M/s. United Phosphorus Limited and therefore seizure of article from an unauthorized retailer is not binding on the petitioners. It is also challenged on the ground that there was no mention in the complaint that the petitioners are in charge of manufacture, sale or distribution of the articleson behalf of M/s. United Phosphorus Limited and therefore they could not be prosecuted. The main ground of challenge in the application is that though the sample was sent for chemical examination on 29-2-96, report was signed by the Chemical Analyst on 4-7-96 i. e. after 126 days which is in violation of Section 24 (1) of the Act. Therefore,the chemical report should be ignored. It was also contended by Sri Routray that the prosecution having been launched after expiry of the use period of the pesticides, the petitioners lost their right to get the sample re-examined as provided under the statute. Similar being the allegations in other case and d same questions having been raised, both the cases were taken up for hearing and disposed of. Similar being the allegations in other case and d same questions having been raised, both the cases were taken up for hearing and disposed of. ( 3 ) LEARNED counsel for the petitioners sri Routray referring to Section 24 of the insecticides Act contended that as provided in the said section, the Insecticides Analyst to whom a sample of any insecticide has been submitted for test, shall within a period of 60 days deliver to the insecticide In-spector a signed report in duplicate in the prescribed form. In the present case admittedly, the report having been submitted much after expiry of 60 days, there was clear violation of the said provision and therefore the prosecution could not be launched against the petitioners. Shri Mishra, learned counsel for the opposite party No. 1 on the other hand, submitted that though there is no dispute that the report has been received much after the statutory period, the complaint case cannot be dismissed because of negligence on the part of the Insecticides analyst in sending report within the statutory period. It was further contended by Sri routrary that due to such delay in getting the report the petitioners lost their right to get the sample re-analysed and in the meantime shelf-life of the insecticide of which sample was taken had already expired. According to Sri Routray, the petitionershaving been deprived of such available right as provided under Section 24 (4) of the Act, the same caused serious prejudice to them and on that ground alone the complaint is liable to be quashed. In support of such contention, learned counsel also referred to a decision of the Apex Court. ( 4 ) THERE is no dispute at Bar that though statute provides for obtaining report within 60 days, the report was in fact obtained much after expiry of the said period. There is also no dispute that by the time the prosecution was launched, shelf-life of the insecticide, sample of which had been sent for test, had expfred. In this connection, reference may be made to a decision of the Apex court, relied upon by the learned counsel for the petitioners, in the case of State of haryana v. Unique Formaid P. Ltd. reported in 2000 Cri LJ 2962. In this connection, reference may be made to a decision of the Apex court, relied upon by the learned counsel for the petitioners, in the case of State of haryana v. Unique Formaid P. Ltd. reported in 2000 Cri LJ 2962. The Apex Court in the aforesaid case where facts are more or less similar observed as follows :"sub-SECTION (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are con traventions of other mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then 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 the present 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 state would be of no consequence. This issue is no longer res Integra. In State of Punjab v. National Organic Chemical Industries Ltd. , (1996) 10 JT (SC) 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge 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 right statutorily available to him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the prevention of Food Adulteration Act, 1954 involving the same question. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the prevention of Food Adulteration Act, 1954 involving the same question. In this connection, reference be made to decisions of this court in State of Haryana v. Brij Lai Mittal, (1998) 5 SCC 343 under the Drugs and Cosmetics Act, 1940; municipal Corporation of Delhi v. Ghisa ram, AIR 1967 SC 970 ; chetumal v. State of Madhya Pradesh, (1981) 3 SCC 72 : AIR 1981 SC 1387 : 1981 cri LJ 1009 and Calcutta Municipal Corporation v. Pawan Kumar Saraf, (1999) 2 SCC 738 : 1999 Cri LJ 1125 all under the Prevention of Food Adulteration Act, 1954. It cannot be gainsaid, therefore, that the respondents in these 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 the present cases Insecticide 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 no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, prejudicing them in their defence. In these circumstances, High Court was right in concluding that it will be an abuse of the process of Court if the prosecution is continued against the respondents-the accused persons. High Court rightly quashed the criminal complaint. We uphold the order of the High Court and would dismiss the appeal. In these circumstances, High Court was right in concluding that it will be an abuse of the process of Court if the prosecution is continued against the respondents-the accused persons. High Court rightly quashed the criminal complaint. We uphold the order of the High Court and would dismiss the appeal. " ( 5 ) IN view of what has been laid down by the Apex Court in the aforesaid decision and the admitted facts of the present case, there cannot be any doubt in mind that because of delay in obtaining the report, the petitioners were deprived of available right conferred on them under the Statute and therefore serious prejudice has been caused to them. On that ground alone, both the complaint cases are quashed. Since on this ground alone the complaint cases are quashed, this Court has not entered into other questions raised by the learned counsel for the parties. Both the Criminal Misc.- cases are allowed accordingly. Applications allowed.