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Allahabad High Court · body

2007 DIGILAW 212 (ALL)

-Petitioner v. State of U. P.

2007-01-29

RAVINDRA SINGH

body2007
RAVINDRA SINGH, J. ( 1 ) THIS application has been filed by the applicant M/s. Bayer (India) Ltd. , a company registered under the Company Act, with a prayer to quash the proceedings of Criminal Case No. 1451 of 1986, pending in the court, of learned Chief Judicial Magistrate, Bareilly. ( 2 ) THE facts, in brief, of this case are that a complaint dated 7. 4. 1986 has been filed by the District Magistrate, Bareilly in the Court of learned Chief judicial Magistrate, Bareilly against the applicant and two other co-accused alleging therein that the complainant was authorised by the State Government under Section 31 (1) of the Insecticides Act, 1968 to institute present prosecution by way of filing the complaint of this case. According to the complaint, a sample of Matasistox 25 E. C. was taken on 6. 7. 1984 by Insecticides inspector, Bareilly from the firm M/s. Misra Beej Bhandar, its proprietor was dinesh Chandra Mishra, dealing with the sale of the insecticides manufactured by the applicant. The applicant is a firm and is the manufacturer of the insecticides. The aforesaid sample was sent for Chemical analysis to U. P. Fertilizer and Pesticides Quality Control Laboratory, Lucknow, after analysis the sample it was found misbranded as per report of the analyst dated 29. 9. 1984. The report was sent by a registered letter dated 12. 11. 1984 to the firm concerned. According to the report of the Public Analyst, the applicant and two other co-accused have committed offence punishable under Section 29b of the insecticides Act, 1968, therefore they may be summoned and punished according to law. The date of the manufacturing of the alleged pesticides was 28. 5. 1984, its expiry dated was 27. 5. 1985 and the complaint dated 7. 4. 1986 was filed in the Court of learned Magistrate concerned on 17. 3. 1987. The alleged sample was misbranded as it was containing 21. 40% Matasistox instead of 25%. ( 3 ) HEARD Sri T. C. Gupta and Sri V. D. Ojha, learned counsel for the applicant and learned A. G. A. for the State of U. P. ( 4 ) IT is contended by the learned counsel for the applicant that no summon along with the complaint and report of the Public Analyst has been served on the applicant. The applicants Manager came to know in respect of pendency of the present proceedings and he appeared before the Court concerned on 16. 7. 1987. The prosecution is based on the report of the Public Analyst, the sample was taken by the Insecticide Inspector from the dealer M/s. Misra Beej bhandar on 6. 7. 1984 but same was found misbranded by the Public Analyst by its report dated 29. 9. 1984. The date of the manufacturing was 28. 5. 1984, the date of expiry of its use was 27. 5. 1987 but the complaint was filed on 17. 3. 1985 and the date of the appearance was 16. 7. 1987. The complaint was filed after the date of the expiry of the pesticides taken as sample its shelf life was one year under the Act. After the expiry of the said period, the insecticide is not expected to retain its efficacy and safety. There is no explanation for inordinate delay in filing the complaint. The accused has important right to get the sample re-analysed from Central Insecticides Laboratory as provided by Section 24 (4) of the Insecticides Act. It is a mandatory provision, if after the date of expiry of the alleged insecticides the complaint is filed thereafter the reanalysis of the alleged sample, would be of no use. The right conferred to the accused under sub-section (4) of Section 24 of the Insecticides Act has been frustrated due to the inordinate delay in filing the complaint because no insecticides can be analysed after its expiry period. The order of issuing the process is bad in law and the prosecution of the applicant shall be an abuse of the process of the Court, therefore the proceedings pending against the applicant in Criminal Case No. 1451 of 1986, in the Court of learned Chief Judicial Magistrate, bareilly may be quashed. ( 5 ) IN support of this contention, the learned counsel for the applicant has cited the following cases as State of Haryana v. Northern Minerals Ltd. and others and State of Punjab v. National Organic Chemical Industries Ltd. ; m/s Kissan Trading Co. v. State of Punjab; S. K. Ahooja and others v. State of u. P. and another. ( 5 ) IN support of this contention, the learned counsel for the applicant has cited the following cases as State of Haryana v. Northern Minerals Ltd. and others and State of Punjab v. National Organic Chemical Industries Ltd. ; m/s Kissan Trading Co. v. State of Punjab; S. K. Ahooja and others v. State of u. P. and another. ( 6 ) IT is opposed by learned A. G. A. by submitting that there is no illegality or irregularity in prosecution of the applicant because the sample was found misbranded by the report of the Public Analyst and only on the technical ground of delay in lodging the complaint, the proceedings may not be quashed. The present application is devoid of merits and is liable to be set aside. ( 7 ) FROM the perusal of the record and after considering the submissions made by the learned counsel for the applicant and learned A. G. A. and after considering the cases cited by the learned counsel for the applicant, it appears that in the present case the complaint has been filed after the date of the expiry of the insecticides whose sample was taken. Now it is to be considered that what will be the effect on the prosecution of the provision of Section 24 (4)of the Insecticides Act, 1968 which provides a right of accused to get the sample re-analysed from the Central Insecticides Laboratory and the accused has been deprived of this valuable right. The Honble Apex Court has taken the view in the case of State of Haryana v. Northern Minerals Ltd. and others (supra) that the sending of sample to Central Insecticides laboratory at that late stage, is having of no consequence. If the accused is deprived of valuable right as provided under Section 24 (4) of the Insecticides Act, it caused a prejudice to the accused and the complaint was quashed. The view taken by the Apex Court in that case is given in paragraphs Nos. 11 and 12 of the judgment. Paragraph nos. 11 and 12 are referred as under: "11. 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 contraventions of other mandatory provisions of the Act, the accused have no remedy. 11 and 12 of the judgment. Paragraph nos. 11 and 12 are referred as under: "11. 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 contraventions 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 stage would be of no consequence. This issue is no longer res Integra. In State of Punjab v. National Organic Chemical Industries Ltd. this court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived that 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. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal under the Drugs and Cosmetics Act, 1940, Municipal Corporation of Delhi v. Ghisa Ram; Chetamal v. State of Madhya Pradesh and Calcutta municipal Corporation v. Pawan Kumar Saraf. All under the prevention of Food Adulteration Act 1954. " "12. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal under the Drugs and Cosmetics Act, 1940, Municipal Corporation of Delhi v. Ghisa Ram; Chetamal v. State of Madhya Pradesh and Calcutta municipal Corporation v. Pawan Kumar Saraf. All under the prevention of Food Adulteration Act 1954. " "12. It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of that valuable right to have the sample tested from the Central Insecticides Laboratory under sub-section (4) of section 124 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein land shall be conclusive evidence against the accused only if the accused do not, within 128 days of the receipt of the report, notify in writing to the Insecticides Inspector of 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. " ( 8 ) THE Apex Court has taken the same view in the case of State of Punjab v. National Organic Chemical Industries Ltd. , 1996 (4) Crimes 169 (SC) and the same view had been taken by the Punjab and Haryana High Court in the case of M/s. Kissan Trading Co. v. State of Punjab and the same view has been taken by this Court in the case of S. K. Ahooja and others v. State of U. P. and another, decided on 3. 9. 2002 in Crl. Misc. Application No. 5815 of 1998. v. State of Punjab and the same view has been taken by this Court in the case of S. K. Ahooja and others v. State of U. P. and another, decided on 3. 9. 2002 in Crl. Misc. Application No. 5815 of 1998. ( 9 ) IN view of the above discussion, I am of the view that in the present case, the complaint has been filed after the date of expiry of insecticide whose sample was taken and the applicant has been deprived of the opportunity of having said sample tested from the Central Insecticides Laboratory as provided by section 24 (4) of the Insecticides Act, 1968 because if the sample is re-analysed by the Central Insecticides Laboratory, after the expiry of its shelf life, no purpose would have been served, this deprival is prejudicing him to his defence. In such circumstances the continuation of the criminal proceedings of this against the applicant is abuse of the process of the Court, therefore the proceeding in Criminal Case No. 1451 of 1986 pending the Court of learned chief Judicial Magistrate, Bareilly are hereby quashed. ( 10 ) ACCORDINGLY, this application is allowed. Application allowed. . .