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2008 DIGILAW 782 (PNJ)

Ashwin Shroff v. State Of Punjab

2008-03-27

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This petition under Section 482 of the Code of Criminal Procedure has been moved for quashing complaint No. 157 of 2001 attached as Annexure P-1 under Section 29(1) A of the Insecticide Act, 1968 pending in the Court of Chief Judicial Magistrate, Hoshiarpur. The petitioner also challenges the summoning order dated 18.1.2002 passed by the learned Chief Judicial Magistrate, Hoshiarpur and the subsequent proceedings arising therefrom. 2. The Insecticide Inspector, Tanda, Office of the Chief Agriculture Officer, Hoshiarpur-respondent No. 2, filed a complaint under Section 29(1)A of Insecticide Act, 1968 on the allegations that on 14.5.2001 at about 10:00 A.M. the complainant along with Dr. Satnam Singh, A.D.O. Nathupur and Dr. Nirmal A.D.O. Maini Block Tanda, Distt. Hoshiarpur visited the shop premises of M/s. Gill Pesticides and Seed Store Harsi Pindi Block Tanda, Distt. Hoshiarpur, the accused was said to be having in his possession 72 x 250 Mls. Of Glyphosate 41% SL (Glycel) for public sale bearing batch No. SAP-2 manufactured dated January 2000 and expiry date December 2001. This Insecticide/weedicide was kept for sale purpose by the firm i.e. M/s. Gill Pesticides and Seed Store Harsi Pindi Tanda Distt. Hoshiarpur, which were purchased from the Distributor M/s. Kisan Kheti Center, Railway Road Dasuya Distt. Hoshiarpur and the name of the manufacturer printed on the container is M/s. Excel Industries Ltd., Mumbai. 3. The complainant served a notice and thereafter took in possession of the sample of the insecticide. 4. The case of the prosecution is that when the sample was sent for chemical analysis the same was found misbranded and consequently complaint was filed against the petitioner and other co-accused. 5. In view of the allegations levelled against the petitioners in the complaint, the petitioners have been ordered to be summoned by the learned Chief Judicial Magistrate, Hoshiarpur. 6. The case of the prosecution is that when the sample was sent for chemical analysis the same was found misbranded and consequently complaint was filed against the petitioner and other co-accused. 5. In view of the allegations levelled against the petitioners in the complaint, the petitioners have been ordered to be summoned by the learned Chief Judicial Magistrate, Hoshiarpur. 6. The learned counsel for the petitioner seeks the quashing of the complaint and subsequent proceedings arising therefrom primarily on two grounds; firstly the sample of the insecticide of the same batch was earlier seized by the prosecution from another retailer vide Annexure P-3, which on analysis was found to be in order and, therefore, the contention of the learned counsel for the petitioner is that once insecticide relating to a particular batch was found to conform to standards laid down it could not be said that the insecticide taken recovered from the possession of the petitioner was misbranded, though it belongs to the same batch. 7. The learned counsel for the petitioner also contends that in the present case the sample was taken on 14.5.2001 whereas the notice to show cause informing the petitioner the sample being misbranded was issued on 3.8.2001. The petitioners company gave reply to the said show cause notice, wherein it was claimed that if the reply was not found to be unsatisfactory then the petitioner would like the re-examination of the sample by the Central Laboratory. 8. The facts stated above are not disputed and it is also not disputed that the sample was sent for analysis to the Central Laboratory and the case was lodged on 18.1.2002 i.e. after the expiry of shelf life of the insecticide which is December, 2001. 9. The contention of the learned counsel for the petitioner, therefore, is that as the complaint has been filed after the expiry of the period of shelf life of the pesticide i.e. Glyphosate 41% S.L., which expired in December, 2001. The petitioner have, therefore, been deprived of their valuable right under Section 24(4) of the Act to have the second sample of the insecticide re-analysed for conclusive result. The petitioner have, therefore, been deprived of their valuable right under Section 24(4) of the Act to have the second sample of the insecticide re-analysed for conclusive result. In support of the contention raised above, the learned counsel for the petitioner has relied upon the judgment of this Court in the case of M/s. Solar Syndicate, Dungri v. State of Punjab, 1994(1) Recent Criminal Reports 140, wherein this Court has been pleased to lay down as under :- 8."It was next urged on behalf of the petitioner that sample of Butachlor of the same batch was seized from M/s. Kishan Agro service Centre, Bhuderheri and M/s. Patiala Pesticides, Grain Market, Patiala, and these were analysed by Senior Analysist, Insecticides Testing Leboratory, Ludhiana and were found to be satisfactory. As the insecticide of the same batch was found to be according to ISI specifications, the report in the present case was defective and it could not be said that the petitioner company was at fault. This contention of the learned counsel is also tenable. Annexures P-5 and P-6, are the copies of the reports of Senior Analyst, which show that Butachlor 50% EC manufactured by the petitioner consisting of batch No. 4 was not misbranded but was according to ISI specifications. This fact is recited in the complaint Annexure P-3 that the sample taken in the present case was from batch No. 4. In these premises if the complaint had been filed soon after the report of the Insecticide Analyst was received and notice thereof would have been given to the petitioner the petitioner must have been controverted the report of the Insecticide Analyst by getting the second sample analysed from Central Insecticides Laboratory. As the petitioner was deprived of his valuable right of getting the sample re-analysed the complaint against him is liable to be quashed." 10. The learned counsel for the petitioner has also placed reliance on the judgment of this Court in the case of Dr. Vineet Bhushan v. State of Punjab, 2002(4) Recent Criminal Reports 586, wherein this Court has been pleased to quash the proceedings when earlier sample of the same batch was found to be in order. 11. The learned counsel for the petitioner also placed reliance on the judgment of the Honble Supreme Court in the case of K. Ramakrishna v. State of Bihar, 2000(4) RCR(Criminal) 354. 12. 11. The learned counsel for the petitioner also placed reliance on the judgment of the Honble Supreme Court in the case of K. Ramakrishna v. State of Bihar, 2000(4) RCR(Criminal) 354. 12. The learned counsel for the petitioner further contended that the complaint was filed after expiry period of shelf life of insecticide, thus, the accused-petitioners lost their valuable right to controvert the correctness of the report of the Insecticide analysis by getting the sample retested from Chemical laboratory, on this ground also quashing of the complaint and subsequent proceedings is sought. 13. The learned counsel for the State controverted the contention raised by the learned counsel for the petitioners. 14. The learned counsel for the State contends that the petitioners are not entitled to discretionary relief under Section 482 of the Code of Criminal Procedure as they/it has not come to Court with clean hands. The case of the State is that the petitioners have made deliberate statement in the petition to the effect that the copy of the analysis report was not supplied to the petitioners, which resulted in prejudice to them. The case of the State is that in fact the copy of the analysis report was supplied along with the notices to the petitioners which were duly received and replies to the said notices was also submitted by the petitioners. Though, in the normal circumstances a person who does not approach the Court with clean hands is not entitled to the discretionary relief. However, in the present case, it may be noticed that the averment regarding non-receipt of analysis report is not in the body of the petition but has been taken as one of the grounds for quashing on the plea that the petitioners have been prejudiced in their right of getting sample re-examined. This plea in fact is available to the petitioners as in response to the notice a request was made for getting the sample retested from the Central Laboratory but however, no action was taken on the said request. Thus, the plea of the State on the facts and circumstances of the present case, deserves to be rejected. 15. This plea in fact is available to the petitioners as in response to the notice a request was made for getting the sample retested from the Central Laboratory but however, no action was taken on the said request. Thus, the plea of the State on the facts and circumstances of the present case, deserves to be rejected. 15. Keeping in view the fact that the sample of the same batch was found to be conforming to prescribed standards and also keeping in view the fact that the present complaint has been filed after expiry of shelf life of insecticide thus, denying the valuable right of re-analysis by the Central Laboratory and non-action on the part of the prosecution to get the sample reattested from the Central Laboratory in spite of request having been made by the petitioners. I feel that it is a fit case where the complaint and subsequent proceedings arising therefrom deserves to be quashed. Ordered accordingly.