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2011 DIGILAW 2762 (RAJ)

Excel Industries Ltd. v. The State of Rajasthan

2011-12-15

NISHA GUPTA

body2011
JUDGMENT 1. - This misc. petition under Section 482 Cr.P.C has been preferred against the order dated 08.06.1999 whereby cognisance has been taken against the present petitioner for the offence under Section 29(1)(a) of the Insecticides Act. 2. The short facts of the case are that the petitioner No. 1 is a manufacturer of insecticides and he is manufacturing Endocell 35% EC and the petitioner No.1 has been granted appropriate license by the licensing authority. The Insecticide Inspector took a sample of Endocell 35% EC on 12.11.1998 and the sample was received by the Insecticides Analyst at Chandigarh on 19.11.1998 and the report was received on 12.01.1999 and dealer has received this report on 16.02.1999. A show cause notice was issued by the Inspector to the present petitioner which was replied by him. The complaint was lodged before the court on 08.06.1999 and the petitioner No.2 received notice from the court on 21.06.2004, wherein admittedly, the date of expiry of the product was July, 2000 and the contention of the present petitioner in this regard is that the petitioner has been deprived of a valuable right provided under Section 24/4 of the Act to have the second sample of the said product re-tested by the Central Insecticides Laboratory and hence proceedings should be quashed against him. 3. The petitioner has further relied on the judgment delivered in the case of Northern Mineral Ltd. v. Union of India & Anr., 2010 (2) WLC (SC) Cri. 283 : 2010 Cr. L.R. (SC) 729 , wherein it has been held as under: "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 no, within 28 days of the receipt of the report, notify in writing to the Insecticide Inspector or the Court before which proceedings are pending that they interred to to adduce evidence to controvert the report. In the present cases the Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report." 4. In the present cases the Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report." 4. Reliance has been placed on Cinemide Agro India v. State, 2008 (1) RLW 614 , wherein it has been held as under: "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, by the time the respondents were asked to appear before the Court, the expiry date of the insecticide was already cover and sending of the 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., 1996 (11) SCC 613 , this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have the 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." 5. In Pesticides India v. State of Rajasthan, 2008 (1) Cr. L.R. (Raj.) 72 , it has been held as under: "Even in instant case, trial Magistrate took cognisance after almost two years of filing of the complaint and by that time, shelf life of sample has expired and the cases are adjourned without any effective proceedings. Such like cases require that service of notices is affected upon the accused as early as possible so as to enable the accused to get sample retested by Central Laboratory before expiry of shelf life of the sample." 6. Such like cases require that service of notices is affected upon the accused as early as possible so as to enable the accused to get sample retested by Central Laboratory before expiry of shelf life of the sample." 6. In State of Haryana v. Unique Farmaid Private Ltd., 2000 IAC 544 (SC) , it has been held as under: "It was submitted that the manufacturing date of the insecticide was March 1994 and its expiry date was February, 1995. By the time the accused was summoned to appear in the Court on April 6, 1995 they had lost their right of getting the sample re-analysed from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act and in these circumstances making them to stand trial would be an abuse of the process of the Court." 7. In Hindustan Ciba Geigi & Ors. v. State of Rajasthan & Ors., 2000 IAC 165 (Raj.) , it has been held as under: "The Insecticides Act, 1968- Section 24- complaints filed after expiry- due to deliberate Lethargic inaction on the part of the Insecticide Inspectors, the criminal complaints against the petitioners were filed with inordinate delay, much after the expiry of the period of shelf-life of the insecticide produce and thus the petitioners have been deprived of their valuable right under Section 24(4) of the Act. The criminal proceedings against the petitioners, therefore, will be a sheer waste of public time and money and no useful purpose will be served by dragging the prosecution against them." 8. Looking at the above legal position, the life of the sample has admittedly expired in July, 2000 and before it could be re-analysed and hence the present petitioner has been deprived of the valuable right under Section 24/4 of the Act and this alone is sufficient to quash the proceedings. 9. The other contention of the present petitioner is that he is not responsible for the conduct of business of the company. Nothing has been alleged in the complaint that the present petitioner was in-charge or responsible for the business of the company at the time of alleged commission of offence and hence looking to the provisions of Section 33 of the Act, complaint against the present petitioner should be quashed. Nothing has been alleged in the complaint that the present petitioner was in-charge or responsible for the business of the company at the time of alleged commission of offence and hence looking to the provisions of Section 33 of the Act, complaint against the present petitioner should be quashed. Section 33 of the Insecticides Act reads as under: "Offences by companies.- (1) Whenever an offence under this Act has been committed by a company, every person who at the time of offence was committed. was in charge of, or was responsible to the company for the conduct of the business of, the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against him and punished accordingly. Provided that nothing contained in this sub- section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any Director, Manager, Secretary or other officer of the company,- such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purpose of this section. (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." 10. Learned counsel for the petitioner has relied upon the judgment in M/s. BASF India Ltd. & 14 ors. v. The State of Rajasthan, 2004 WLC (Raj.) UC 350 , wherein it has been held as under: "It clearly appears that the sanction has been accorded for prosecution by the authority mechanically without application of mind. The prosecution on such a sanction is held to be illegal by various decisions of this Court. v. The State of Rajasthan, 2004 WLC (Raj.) UC 350 , wherein it has been held as under: "It clearly appears that the sanction has been accorded for prosecution by the authority mechanically without application of mind. The prosecution on such a sanction is held to be illegal by various decisions of this Court. Reference be made to M/s Gupta Chemicals Pvt. Ltd. v. State of Rajasthan, reported in 1996 (2) WLC (Raj.) 690 . Besides this, there is nothing show as to how the petitioners were responsible for conduct of business. They have also been deprived of their right to get the sample analysed by the Central Insecticide Laboratory under section 24 of the Act. It is not necessary to examine these contentions in detail, as the petitioner deserves to be succeeded on first ground alone." 11. In view of the above provision, it is necessary for the State to plead that the present petitioner, at the time of commission of offence, was incharge or responsible for conduct of its business then only he can be booked for the above offence and further it should have also been alleged by the prosecution that the offence has been committed with the consent or connivance on the part of the present petitioner. 12. In view of the above, this petition has no merit and is accordingly dismissed. *******