Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 692 (MP)

Neelesh Kumar Jain v. State of M. P.

2006-05-11

RAKESH SAKSENA

body2006
ORDER 1. This petition under section 482 of the Code of Criminal Procedure has been filed by the applicant, who manufactured insecticide Fenvalerate 0.4% D.P. With the prayer that his prosecution for the offence under section 18 (1) (c) read with section 29 (1) (a) of the Insecticides Act, 1968 (hereinafter referred to as 'the Act'), pending in the Court of Judicial Magistrate First Class, Sagar, as Criminal Case No. 504/04 be quashed. 2. Relevant facts of the case are that applicant manufactured the insecticide in his factory by name M/s. Choudhary Minerals and Chemicals. On 30.1.2004 Senior Agriculture Development Officer took samples of insecticides viz., Methyl Parathion D.P. 02.00 and Fenvalerate 0.4% D.P. for the purpose of analysis and prepared Panchnama and after dividing the samples into 3 parts sent one sample of Methyl Parathion to the Regional Laboratory of Analysis, Jabalpur and sent one sample of Fenvalerate to Central Insecticides Laboratory, Faridabad (Haryana). With respect to the sample of Methyl Parathion report of the Regional Laboratory was that the sample conformed to the relevant specification of the prescribed standard. However, according to the report of Central Insecticides Laboratory sample of Fenvalerate was found not conforming to the relevant specifications in the active ingredient test of prescribed standard. As such it was found to be misbranded. Date of manufacturing of the insecticide was 1.1.2004 and its expiry was December, 2005. 3. When the sample was not found in accordance with the prescribed standard, notice alongwith the report of the Central Insecticides Laboratory was given by the Inspector to the applicant on 12.7.2004. Thereafter first information report was lodged at Police Station Baheriya, District Sagar. However, as the offence was found to be a non-cognizable the complaint was filed before the Court of Judicial Magistrate First Class, Sagar. Learned Magistrate took cognizance against the applicant for the offence under section 18 (1) (c) punishable under section 29 (1) (a) of the Insecticides Act. 4. Applicant wrote letters to the Deputy Director of Agriculture challenging that the sample of the insecticide was not taken in accordance with the law and requested to take sample again from the stock of insecticide, which he received but his prayer was not heeded. 5. 4. Applicant wrote letters to the Deputy Director of Agriculture challenging that the sample of the insecticide was not taken in accordance with the law and requested to take sample again from the stock of insecticide, which he received but his prayer was not heeded. 5. In this petition under section 482 of the Code the main contention of the learned counsel for the applicant is that the sample taken by the Assistant Director of Agriculture was directly sent to Central Insecticides Laboratory, Faridabad (Haryana) for analysis. Hence, his valuable right to get the sample reanalysed or tested by the Central Insecticides Laboratory has been denied and it has prejudiced his defence. He submitted that on this ground alone the proceedings against the applicant are liable to be quashed. 6. I have heard the learned counsel for the applicant and the learned Deputy Government Advocate for the State and perused the material available on record. Before adverting to the facts of the case it is pertinent to advert to the relevant provisions of law. Section 22 of the Insecticides Act, 1968 provides the procedure to be followed by the Insecticide Inspectors. Sub-section (6) of section 22 of the Act provides that: "(6) The Insecticide Inspector shall restore one portion of a sample so divided or one container as the case may be, 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 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." It is apparent that one part of the sample is to be sent to the Insecticide Analyst for the test or analysis. Section 19 of the Act provides for the appointment of Insecticide Analyst for the area in respect of which the Central Government or a State Government may, by notification in the official gazettee, notify. Section 16 of the Act provides for the establishment of Central Insecticides Laboratory which has to be under the control of a Director to be appointed by the Central Government to carry out the functions entrusted to it by or under this Act. 7. Section 16 of the Act provides for the establishment of Central Insecticides Laboratory which has to be under the control of a Director to be appointed by the Central Government to carry out the functions entrusted to it by or under this Act. 7. 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, has within twenty-eight days of the receipt of the 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 is controversion of the report and as per the provisions of sub-section (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 a 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 sent by, or under the authority of, the Director of Central Insecticides Laboratory the result thereof, an such report shall be conclusive of the facts stated therein. 8. Perusal of the aforesaid provisions of the Act indicates that on receipt of the report of Analyst, the manufacturer or person from whom the sample was taken, has a right to notify in writing the Insecticide Inspector or the Court before which any proceeding were pending that he intended to adduce evidence in controversion of the report and for that purpose he could have got the sample reanalysed or tested from the Central Insecticides' Laboratory. Thus, the right to get the sample renalysed is a valuable right conferred on the person from whom the sample was taken, who is aggrieved by the report of Insecticide Analyst. Thus, the right to get the sample renalysed is a valuable right conferred on the person from whom the sample was taken, who is aggrieved by the report of Insecticide Analyst. Besides that the procedure, which the Inspector is bound to follow as envisaged under sub-section (i) of section 22, is that the Inspector should forthwith send one portion of the sample to Insecticide Analyst for test or analysis. 9. On examining the case in hand in the light of the foregoing Provision of law it is apparent that the Assistant Director of Agriculture after taking the sample had sent it directly to the Central Insecticides Laboratory, Faridabad (Haryana) for analysis. Thus, it is apparent that the applicant has been denied the valuable right to get the sample reanalysed by the Central Insecticides Laboratory. Learned counsel for the applicant ha relied upon the decisions of Rajasthan High Court Bharat Insecticide, Limited and others v. State of Rajasthan and another [(2002) FAJ 62] an Nagpal Agro System (Mis.) and others v. State of Rajasthan and another [(2002) FAJ 35] wherein it has been held that where the sample was sent by the Insecticide Inspector directly to Central Insecticides Laboratory for the first analysis, this has frustrated and defeated the intent and purpose of section 24 of the Act, which confers an important and valuable right to the accused to get the sample reanalysed or tested in the Central Insecticide Laboratory and in such circumstances the criminal complaint against the applicant suffers from patent inherent and legal infirmity and dragging the prosecution then would clearly amount to abuse of process of the Court and on this ground alone the criminal proceeding of the complain was quashed. 10. I am in full agreement with the legal proposition enunciated in the aforesaid decisions. Since the present case also the sample was directly sent by the Assistant Director of Agriculture to the Central Insecticides. Laboratory, Faridabad (Haryana) for analysis, I am of the opinion that the applicant has been denied a valuable right to get the sample reanalysed by the Central Insecticides Laboratory and thus, prejudiced in his defence and as such the criminal proceedings against him are liable to be quashed. 11. Accordingly, this petition under section 482 of the Code succeeds and is allowed. 11. Accordingly, this petition under section 482 of the Code succeeds and is allowed. The proceedings of the Criminal Case No. 504 of 2004 pending against the applicant for the offence under section 18 (1) (c) read with section 29 (1) (a) of the Act, in the Court of Judicial Magistrate, Sagar are quashed.