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2011 DIGILAW 929 (MAD)

P. N. Sharma v. S. N. Ponnusamy

2011-02-22

G.M.AKBAR ALI

body2011
Judgment :- 1. The petition is filed seeking for a direction to call for the records in S.T.C.No.9670 of 2007 on the file of the learned Judicial Magistrate, Sathyamangalam and quash the same. 2. The petitioners are the accused before the learned Judicial Magistrate, Sathyamangalam in STC No.9670 of 2007 filed on a private complaint for the violation of Sec.3 (k)(i) of Insecticide Act 1968 which is punishable under Sec.29(1)(a) Insecticide Act 1968. The respondent who is an Agricultural Officer, is the complainant. 3. The first petitioner was the owner of the firm which manufactured the chemical Mancozeb 75% WP which is a raw material for manufacture of Insecticide. The second petitioner is the Marketing Agent; the third petitioner is the distributor and the fourth petitioner is the retail selling agent at Sathyamangalam. 4. On 7.9.2006, the respondent/Agricultural Officer, Sathyamangalam inspected the premises of the fourth petitioner and had taken three bottles of sample which contained the above said chemical. They were affixed with seal and necessary statements were recorded from the 4th petitioner. One sample was sent to the Pesticide Testing Laboratory, Erode on 8.9.2006. The Laboratory analysed and declared the sample as misbranded since the sample (Mancozeb 75% WP) failed in active ingredient content test. The ingredient was only 70.20% against the declared value of 75% noted in the container. Since it is a clear violatiion of misbranding under Sec.3(k)(i) of the Act, explanations were called for from the petitioners. As they were not satisfactory, after obtaining necessary permission, the respondent has filed the private complaint. 5. Aggrieved of taking cognizance of the case by the Court below, the petitioners are before this Court on various grounds, seeking to quash the complaint. 6. The main ground urged before this Court was that the inspection was conducted on 7.9.2006 and the sample was sent for analysis on the same day. However, the prosecution was launched only in September 2007 i.e., after more than a year and by the time, the expiry date of the content in the sample had already over. It is contended that the petitioners are deprived of their right to send the sample for re-analysis at the Central Analysis Laboratory under Sec.24 of the Act. 7. The petitioners filed an application under Sec/24(4)of the Act before the learned Judicial Magistrate, Sathyamangalam with the prayer for sending the sample to the Central Insecticide Laboratory. It is contended that the petitioners are deprived of their right to send the sample for re-analysis at the Central Analysis Laboratory under Sec.24 of the Act. 7. The petitioners filed an application under Sec/24(4)of the Act before the learned Judicial Magistrate, Sathyamangalam with the prayer for sending the sample to the Central Insecticide Laboratory. This petition was taken on file in CMP No.67 of 2008 and the learned Judicial Magistrate passed an order on 22.6.2010 allowing the application, after two years of expiry date of the sample. 8. Mr. N. Nithianandam, learned counsel for the petitioner would submit that the expiry date of sample was 14.7.2008 and no purpose will be served in sending the sample for testing in Central Insecticide Laboratory. The learned counsel pointed out that the valuable right of the petitioner under SEc.24(4) of the Act is denied and hence the complaint is to be quashed. 9. The learned counsel relied on a decision reported in 2010 7 SCC 726 , (Northern Mineral Limited vs Union of India and another), wherein the Apex Court, in a similar case, has held as follows" "27..... When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory. All who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to the time schedule, so that innocent persons are not prosecuted and real culprits not left out". 10. On the contrary, Mr.Hassan Mohamed Jinnah, learned Additional Public Prosecutor would submit that the petitioners ought to have expressed their willingness immediately after receiving the show cause notice from the respondent, but there was an inordinate delay in sending their letter of willingness for re-analysis. Therefore, the fault is on the part of the petitioners and therefore, they are not entitled for any relief sought for. 11. Heard and perused the materials available on record. 12. Admittedly, the first petitioner is the owner of the firm which manufactured the chemical Mancozeb 75% WP which is used in the process of manufacture of Insecticide and the 4th petitioner is the retail selling agent. 11. Heard and perused the materials available on record. 12. Admittedly, the first petitioner is the owner of the firm which manufactured the chemical Mancozeb 75% WP which is used in the process of manufacture of Insecticide and the 4th petitioner is the retail selling agent. The Inspection by the authorities on 7.9.2006 and obtaining three samples for test are not denied. The dates and events are important. The inspection was done on 7.9.2006; the sample was sent for chemical analysis at Erode on 8.9.2006 and on 5.10.2006 the report was received. On 9.10.2006, notice was sent to the petitioners. On 9.5.2007, one of the petitioners sent a letter for willingness for re-analysis. On 10.9.2007, the prosecution was launched. Only on 6.5.2008, the sample reached the Court. The self life expired on 14.7.2008. The petitioners have filed an application under Sec.24(4)of the Act before the Court in the year 2008. (month and date are not available). 13. The court passed an order allowing the application only on 22.6.2010, well after two years of expiry date. 14. Sec.24(3) and (4) of the Act, which are as follows: 24.. Report of Insecticide Analyst:- (3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the factsstated 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 same are pending that he intends to adduce evidence in contravention of the report. (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 contravention of the Insecticide Analyst's 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 , 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," 15. In a similar case, the Apex Court has discussed Sec.24(3) and (4) of the Act, which is as follows: "18. From a plain reading of Section 24(3) of the Act, it is evident that an accused within 28 days of the receipt of the copy of the report of the Insecticide Analyst to avoid its evidentiary value is required to notify in writing to the Insecticide Inspector or the court before which the proceeding is pending that it intends to adduce evidence in contravention of the report. Sec.24(4) of the Act provides that when an accused had notified its intention of adducing evidence in contravention of the Insecticide Analyst's report under Section 24(3) of the Act, the court may of its own motion or in its discretion at the request either of the complainant or the accused cause the sample to be sent for analysis to the Central Insecticides Laboratory. 19. Under the scheme of the Act when the accused had notified its intention to adduce evidence in controversion of the report of the Insecticide Analyst, the legal fiction that the report of the Insecticide Analyst shall be conclusive evidence of the facts stated in its report loses its conclusive character. The legislature has used similar expression i.e., the "intention to adduce evidence in controversion of the report" in both sub section (2) and sub section (4) of Section 24 of the Act, hence both the expressions have to be given one and the same meaning. The legislature has used similar expression i.e., the "intention to adduce evidence in controversion of the report" in both sub section (2) and sub section (4) of Section 24 of the Act, hence both the expressions have to be given one and the same meaning. Notification of an intention to adduce evidence in controversion of the report takes out the report of the Insecticide Analyst from the class of "conclusive evidence" contemplated under sub-section (3) of Section 24 of the Act. Further, the intention of adducing evidence in controversion of the Insecticide Analyst's report clothes the Magistrate with the power to send the sample for analysis to the Central Insecticides laboratory either on its own motion or at the request of the complainant or the accused. 20. In the face of the language employed in Section 24(4) of the Act, the act of the accused notifying in writing its intention to adduce evidence in controversion of the report in our opinion shall give right to the accused and would be sufficient to clothe the Magistrate with the jurisdiction to send the sample to the Central Insecticides laboratory for analysis and it is not required to state that it intends to get the sample analysed from the Central Insecticides Laboroatory. True it is that report of the Insecticide Analyst can be challenged on various grounds but the accused cannot be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion. The moment it is done, the conclusive evidentiary value of the report gets denued and the statutory right to get the sample tested and analysed by the Central Insecticide laboroatory gets fructified". 16. In the light of the above said judgment, it is clear that Sec.24(3) of the Act gives right to the accused to rebut the conclusive nature of evidence of the insecticide analyst report by notifying his intention to adduce evidence. On receiving such willingness, the respondent is obliged to institute the complaint forthwith, produce the sample, request the court to send the sample for analysis and get it tested by the Central Insecticide Laboratory. The reason given by the respondent in the counter that the distributor and the dealer have not expressed their willingness is misconceived. On receiving such willingness, the respondent is obliged to institute the complaint forthwith, produce the sample, request the court to send the sample for analysis and get it tested by the Central Insecticide Laboratory. The reason given by the respondent in the counter that the distributor and the dealer have not expressed their willingness is misconceived. When the manufacturer has sent a letter of willingness, the respondent ought to have obliged by instituting the complaint and making the sample available in the court to send the same to be analysed by the Central Insecticide Laboroatory. 17. It is also pertinent to note that the manufacturer has sent a reply on 11.7.2007, stating that they never received the letter dated 9.10.06 and the analyst report. It is also stated they object to the report and expressed their willingness for a re analysis. 18. The complaint was filed on 10.9.2007 and the sample was produced only on 6.5.2008 when the self life expired on 14.7.2008. Interestingly, the court has also contributed its part to the inordinate delay by allowing that application only on 22.6.2010 i.e., after two years from the expiry period. 19. Therefore, the valuable right under Sec.24(4) of the Act is denied to the petitioners. By following the above judgments, I am of the view that the continuation of the proceeding is abuse of process of law and therefore, it is a fit case to exercise the power under Sec.482 cr.P.C. 20. In the result, the criminal original petition is allowed and the proceedings in S.T.C.No.9670 of 2007 on the file of the learned Judicial Magistrate, Sathyamangalam is hereby quashed. Consequently, connected MP is closed.