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2005 DIGILAW 2486 (RAJ)

Tikayat Kishan Vikas Kendra v. State of Rajasthan

2005-09-16

R.S.CHAUHAN

body2005
Judgment R.S. Chauhan, J.-The petitioners have challenged the continuation of proceedings in Criminal Case No. 219/1995 “State vs. M/s Tikayat Kishan Vikas Kendra”, pending in the Court of Munsif and Judicial Magistrate, Sardarsahar for offence under Section 29(1)(a) of the Insecticide Act (henceforth to be referred to as “the Act” for short). 2. According to the petitioners, on 011.1994 an Insecticide Inspector inspected the shop of M/s Tikayat Kishan Vikas Kendra. He took samples of mithail parathiozen after observing all the formalities laid down by the Act. The said samples were sent for analysis and the same was found to be “misbranded” according to the report dated 212.1994. Vide letter dated 30.12.1994, the firm was informed about the misbranding of the sample. Immediately, the firm sent a letter wherein they claimed that the said insecticide was brought from M/s. Tropical Agro Systems (India) Ltd., Madras On 04.01.1995, the Insecticide Inspector also sent an information to the manufacturer M/s Tropical Agro Systems (India) Ltd., Vide letter dated 10.02.1995, the said manufacturer (petitioner No. 5) replied to the Insecticide Inspector. They clearly stated that the sample could not be misbranded as they have their own laboratory where strict quality control is maintained by them. They also requested that the sample may be sent to the Central Laboratory for re-examination and testing. Interestingly, the said insecticide was to expire in May, 1995 and yet despite the clear cut request of the petitioner No. 5 for sending the sample to the Central Laboratory, no action was taken by the Insecticide Inspector. Subsequently, on 28.07.1995 i.e., after the shelf life of the insecticide had expired, the complaint was filed by the Inspector before the Court of Munsif and Judicial Magistrate for offence under Section 29(1)(a) of the Act. 3. Mr. Niranjan Singh, the Counsel for the petitioners has argued that the Act provides for the appointment of the Insecticide Inspectors and also provides an elaborate procedure to be followed by them for taking the samples and for sending the samples for testing to the Laboratories established under the Act. According to Mr. Singh, since the shelf life of an insecticide is limited, therefore, it is incumbent on the Inspector to send the sample and to file the complaint on the shortest time. According to Mr. Singh, since the shelf life of an insecticide is limited, therefore, it is incumbent on the Inspector to send the sample and to file the complaint on the shortest time. He has further argued that since the alleged accused can request the Court to send the sample for further re-examiantion, therefore, it is imperative that the complaint be filed prior to the insecticide loosing its shelf life. Lastly, he has contended that in case the necessary steps are not completed within a short period then the accused is deprived of a valid defence in such. In such an eventuality the entire trial stands vitiated. Thus, according to him, in the instant case the continuation of the criminal proceeding would amount to an abuse of the process of the Court and of the law. Hence, the criminal proceeding deserves to be quashed and set aside. 4. The learned Public Prosecutor, on the other hand, has contended that the accused has ample opportunity during the course of the trial to lead evidence to show that the insecticide was not misbranded. Therefore, at a premature stage the criminal proceeding should not be quashed. 5. Having heard the counsels, we are convinced that the contentions raised by the Counsel for the petitioners deserves to be accepted. 6. In April, 1958 may persons died and other fell ill in Kerala and Madras as a result of food-poisoning arising from contamination of food with a poisonous insecticide. The large scale food poisoning prompted the Government of India to constitute Food Poisoning Cases Enquiry Commission under the chairmanship of Justice J.C. Shah. The recommendations of the Enquiry Commission were accepted by the Government. The Government also appointed an Inter-Ministerial Committee which recommended certain short term and long term measures. In 1962, tragedy again struck parts of West Bengal and Assam where 450 persons were paralysed after consuming contaminated wheat flour laced with insecticide. The year 1963 again saw large cases of food poisoning when rice stored with a deadly insecticide killed many people. As a result of these grave tragedies, in 1968 the Insecticide Act was enacted by Parliament. The aim and object of the Act is to regulate the import, manufacture, sale, transport, distribution and use of insecticides with a view to prevent harm to human beings and animals. 7. As a result of these grave tragedies, in 1968 the Insecticide Act was enacted by Parliament. The aim and object of the Act is to regulate the import, manufacture, sale, transport, distribution and use of insecticides with a view to prevent harm to human beings and animals. 7. Section 20 of the Act empowers Central Government and State Government to appoint persons as Insecticide Inspectors for such areas as may be specified in the notification. Section 21 prescribes the powers of the Insecticide Inspector. Section 22 lays down the procedure to be followed by the Insecticide Inspector. Section 22(5) and (6) reads as under:-“(5) Where an Insecticide Inspector takes a sample of an insecticide for the purpose of test of analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself , shall divide the sample into three portions and effectively seal and suitably mark the same permit such person to add his own seal and mark to all or any of the portions so sealed and marked: Provided that where the insecticide is made up in containers of small volume, instead of dividing a sample as aforesaid, the Insecticide Inspector may, and if the insecticide be such that it is likely to deteriorate or be otherwise damaged by exposure shall take three of the said containers after suitably marking the same and, where necessary, sealing them. .(6) TheInsecticide Inspector shall restore one portion of a sample so divided or one container, as the case may, to the person from whom he takes it and shall retain the remainder and dispose of the same as follows - .(i) One portion or container, he shall forthwith send to the Insecticide Analyst for test or analysis; and (ii) The second, he shall produce to the Court before which proceedings, if any, are instituted in respect of the insecticide.” Section 23 imposes a duty on a person to disclose the place where the insecticide has been manufactured or is kept to the Insecticide Inspector. Section 24 deals with the report of the Insecticide Analyst, which reads as under:- “24.Report of Insecticide Analyst. Section 24 deals with the report of the 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 thirty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form. .(2) TheInsecticide 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 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) Unlessthe 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, within a period of thirty days, 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.” 8. Section 29 defines the offences and lays down the punishment. .(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.” 8. Section 29 defines the offences and lays down the punishment. According to Section 29(a), whoever imports, manufactures, sells stocks or exhibits for sale or distributes any insecticide deemed to be misbranded under Sub-clause (i) or Sub-clause (iii) or Sub-clause (vii) of Clause (k) of Section 3, shall be punishable for the first offence, with imprisonment for a term which may extend to two years, or with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees, or with both. 9.Section 30 of the Act lays down certain permissible defences which would be statutorily available to the accused in order to escape criminal liability under the Act. Sections 30 reads as under:-“30. Defences which may or may not be allowed in prosecutions under this Act.-( 1) Save as hereinafter provided in this Section, it shall be no defence in a prosecution under this Act to prove merely that the accused was ignorant of the nature or quality of the insecticide in respect of which the offence was committed or of the risk involved in the manufacture, sale or use of such insecticide or of the circumstances of its manufacture or import. .(2) For the purposes of Section 17, an insecticide shall not be deemed to be misbranded only by reason of the fact that- .(a) Therehas been added thereto some innocuous substance or ingredient because the same is required for the manufacture or the preparation of the insecticide as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the insecticide or to conceal its inferior quality or other fact; or .(b) Inthe process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it. .(3) Aperson not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof , shall not be liable for a contravention of any provision of this Act, if he proves- .(a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof; .(b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and .(c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it.” 10. A bare perusal of these provisions clearly reveal that the Act not only prescribes the powers of the Insecticide Inspector, but also prescribes the time period within which the insecticide has to be tested and analyzed. Further, the Act, not only describes the offences and prescribes the punishment, but it also provides certain statutory defences to the accused. 11. The Act is exhaustive in its scope and ambit. It creates an equilibrium between the interest of the society to protect itself from the hazards of insecticide and the interest of the individual to protest himself from frivolous prosecution. The first principle of criminal jurisprudence is that everyone is presumed to be innocent till proven guilty. Therefore, it is the duty of the state to prove the guilty of the accused beyond a reasonable doubt. Since the Act deals with insecticide (chemicals), which are subject to constant change without any fault on the part of the offender, therefore, the Act provides certain defences mechanism for protection of the accused. The provisions of the Act imposes a duty on the Insecticide Inspector to forthwith send a sample of the insecticide to the Insecticide Analyst for test and analysis. It further imposes a duty on the Analyst to deliver the report within a period of thirty days to the Insecticide Inspector. It further imposes a duty on the Inspector to send a copy of the report to the accused persons. The accused person is permitted to inform the Inspector that he intends to adduce evidence in contraversion of the report. The provisions further provides that the Court may cause the sample of the insecticide to be sent for test or analysis to the Central Insecticide Laboratory, if so desired by the accused person. 12. The accused person is permitted to inform the Inspector that he intends to adduce evidence in contraversion of the report. The provisions further provides that the Court may cause the sample of the insecticide to be sent for test or analysis to the Central Insecticide Laboratory, if so desired by the accused person. 12. Since, the insecticides are nothing but chemicals which have a limited life, therefore, it is imperative that the procedure adopted by the Insecticide Inspector should be completed prior to the expiry of the shelf life of the insecticide. In case the shelf life of the insecticide is over, then the accused person is deprived of the right to effectively defend himself in the trial. A right to defend oneself is not an illusory right, but a substantive one. Such a right cannot be defeated by the Inspectors through their sheer lethargy. After all, if there is a right to defend oneself , there is a corresponding duty imposed on the Inspectors to act diligently. 13. It is also essential to keep in mind that according to Article 21 of the Constitution of India, “life” and “personal liberty” can be deprived only by the procedure established by law. Undoubtedly, the procedure to collect evidence and to initiate the criminal proceedings in prescribed by the Act. In case the procedure is not followed efficiently both in letter and spirit, then the accused will be deprived of his personal liberty in violation of the procedures established by law. Thus, a prosecution which violates the procedure established by the Act, would ipso facto violate the fundamental rights of the accused under Article 21 of the Constitution of India. Therefore, such a prosecution cannot be permitted to continue. For, such a prosecution would be both an abuse of the process of the Court and would be a violation of the fundamental rights of the accused. 14. In the present case, the insecticide which was examined by the Insecticide Inspector, was to expire in May, 1995. The accused persons had clearly given their intention to adduce evidence in contraversion of the report which had claimed that the said insecticide was misbranded. Despite the request of the accused persons, the sample of the insecticide was not sent for further analysis. Even the complaint was filed two months after the shelf life of the insecticide was over. The accused persons had clearly given their intention to adduce evidence in contraversion of the report which had claimed that the said insecticide was misbranded. Despite the request of the accused persons, the sample of the insecticide was not sent for further analysis. Even the complaint was filed two months after the shelf life of the insecticide was over. Thus, the lethargy on the part of the Inspector in filing the complaint also prevented the Court from directing that a sample of the insecticide should be sent for test or analysis to the Insecticide Laboratory. The callous attitude of the Inspector, thus deprived the petitioners of a valuable right to defend themselves in the trial. Therefore, the continuation of such a trial is an abuse of the process of the Court and of the law. .15. Inordinate delay in lodging the complaint and the deprivation of the accused to get an independent evidence to defend himself has attracted the attention of the judiciary in catena of cases. The Honble Supreme Court in the case of State of Haryana vs. Unique Farmaid, 1999 SCC (Cri) 1404 has clearly held that “the procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the 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 the 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, the respondents were asked to appear before the Court. The expiry date of the insecticide was already over in sending of the sample to the Central Insecticide Laboratory and at that stage would be of no consequence.” Therefore, the Honble Supreme Court held that the High Court was certainly justified in concluding that the continuation of the prosecution would amount to abuse of the process of the Court. According to the Honble Supreme Court, the High Court had rightly quashed the criminal complaint. According to the Honble Supreme Court, the High Court had rightly quashed the criminal complaint. As given below, in catena of cases, this Honble High Court has also held similar view:- .(1) M/s Gupta Chemicals Pvt. Ltd. vs. State of Rajasthan, 2000 (1) RCC 513 .(2) S.N. Chemicals vs. State of Rajasthan, 2000 CrLR (Raj.) 22 .(3) U.S. Madan, Manager Artee Minerals vs. State of Raj., 2002 (1) CrLR (Raj.) 560 16. Considering the settled principles of law as enumerated above, we are firmly of the opinion that the continuation of the criminal proceeding would amount to abuse of the process of the Court and of the law. Therefore, while allowing the petition, we quash and set aside the criminal proceedings in Criminal Case No. 219/1995 “State of Rajasthan vs. M/s Tikayat Kishan Vikas Kendra & Ors.,” pending in the Court of Munsif and Judicial Magistrate, Sardarsahar for offence under Section 29(1)(a) of the Act.