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2012 DIGILAW 1225 (RAJ)

Laxmi Agencies v. State of Rajasthan

2012-05-11

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant miscellaneous petition has been preferred by the petitioner seeking quashing of the proceedings of Criminal Case No. 187/2004, State of Rajasthan v. Bhati Beej Bhandar, Nagaur , pending in the Court of the learned Additional Chief Judicial Magistrate, Nagaur tinder Section 29 of the Insecticide Act, 1968 (for short, the Act of 1968") 2. The contention of the learned counsel for the petitioner is that in this case a sample of pesticide manufactured by M/s Hindustan Ciba Geigy Limited, Mumbai, of whom the petitioner is a distributor, was taken by the Insecticides Inspector from Bhati Beej Bhandar, Nagaur on 14.1.1999. The manufacturing date of the insecticide/pesticide was July 1998 and the report of the Government Analyst in relation to the sample being misbranded was received on 10.3.1999. Thereafter a notice under Section 22 of the Act was issued to the petitioner, the manufacturing company and the vendor on 8.6.1999 enquiring as to whether they were desirous of challenging the report of the Government Analyst. It is submitted on behalf of the petitioner that all the three notices to whom notices were issued, submitted their reply to the notice dated 8.6.1999 on the following dates. (1) M/s Laxmi Agencies on 25.6.1999, (2) M/s Hindustan Ciba Geigy Limited on 22.6.1999, (3) Bhati Beej Bhandar, Nagauron 17.6.1999. 3. Learned counsel for the petitioner submits that no action was taken on the said request of the petitioner or the other persons for having the referee sample re-analysed by the Central Insecticides Laboratory and the Insecticides Inspector proceeded to file a complaint against the petitioner as well as other accused persons for the aforesaid offences on 7.9.1999. The very same day, the learned Magistrate proceeded to take cognizance against the petitioner as well as other co-accused for the offences mentioned above. 4. The very same day, the learned Magistrate proceeded to take cognizance against the petitioner as well as other co-accused for the offences mentioned above. 4. Now the instant miscellaneous petition has been preferred seeking quashing of the proceedings of the complaint on the following grounds: (1) It is contended that the Insecticides Inspect has not followed the mandatory procedure as prescribed for taking samples under Section 22(5) of the Act inasmuch as the Insecticides Inspector only took two samples of the pesticide instead of the mandatory requirement of taking three samples; thus lie submits that the proceedings of the complaint are vitiated; (2) the second limb of the argument, which has been advance on behalf of the petitioner is that the petitioner as well as the other accused replied to the notice dated 8.6.1999 given by the Insecticides Inspector communicating their intention to challenge the report of the Government Analyst by having the referee sample sent for re-analysis by the Central Laboratory, but the Insecticides Inspector kept sleeping over the matter and did not take steps for sending the referee sample analysed to the Central Laboratory. He, thus, submits that the statutory right of the accused to challenge the report of the Government Analyst by having the referee sample tested by the Central Insecticides Laboratory. as J provided under Section 24(2) of the Act, has been frustrated. 5. Learned counsel for the petitioner submits that the expiry date of the sample was June 2000 and it was obligatory for the Insecticides Inspector to have taken steps as per Section 24(4) of Act to cause the referee sample of the pesticide to be analysed by the Central Laboratory once the accused had made a request in this record. Learned counsel, therefore. submits that the proceedings of the complaint in this case are vitiated because the right of the accused to challenge the report of the Government Analyst has been defeated because of the inaction by the Insecticides Inspector. In support of arguments. Learned counsel, therefore. submits that the proceedings of the complaint in this case are vitiated because the right of the accused to challenge the report of the Government Analyst has been defeated because of the inaction by the Insecticides Inspector. In support of arguments. learned counsel for the petitioner has placed reliance on the decision of the Hon'ble I Apex Court in Northern Mineral Ltd. v. Union of India & Anr., AIR 2010 SC 2829 and contended that owing to sheer laxity of the Insecticide Inspector in taking any action on the reply submitted by the petitioner on 25.6.1999 communicating its intention to challenge the report of the Government Analyst resulted into the lapse of shelf-life of the sample of insecticide and thereby the accused was deprived of the statutory right to challenge the report of the Government Analyst by having the referee sample analysed by the Central Laboratory. He, therefore, submits that the miscellaneous petition deserves to be accepted and the proceedings of the impugned complaint deserve to be quashed. 6. Learned Public Prosecutor has opposed the contentions advanced on behalf of the petitioner and submitted that the petitioner is at liberty to raise all these objections before the learned trial court and at this stage, the proceedings of the complaint are not liable to be quashed as no prejudice is shown to have been caused to the petitioner on account of non-examination of the second sample by the Central Laboratory. lie further contended that the petitioner should have requested the trial court for having the second sample of insecticide analysed by the Central Laboratory and since no such request was made. the petitioner cannot take advantage of his own inaction in this regard. 7. This Court had directed the learned Public Prosecutor to keep the concerned Director of Agriculture present before this Court. Mr. Jeevan Ram Bharud, Additional Director, Agriculture, Headquarter at Nagaur, appeared in this court on 26.4.2012 and on an inquiry being made, he intimated to this Court that the Indian Pesticides Laboratory, Chandigarh is not prescribed as the Central Pesticides Laboratory under the Act. He informed this Court that the only Central Insecticides Testing Laboratory, as notified under the Insecticides Act, is located at Faridabad. 8. He informed this Court that the only Central Insecticides Testing Laboratory, as notified under the Insecticides Act, is located at Faridabad. 8. It is evident from the perusal of the record that the fact of the accused intimating the Insecticide Inspector about their intention to have the referee sample analysed by the Central Laboratory is not in dispute. The letter dated 17.6.1999 sent by the Bhati Beej Bhandar. Nagaur, the letter dated 22.6.1999. sent by the Manufacturing Company as also the letter dated 25.6.1999 sent by the petitioner are available on record and in all these three letters, a request has been made that the referee sample be sent to the Central Laboratory for analysis as per Section 24 of the Act. Subsequent to the intimation being given to the complainant, the complaint was filed on 7.9.1999. In the proceedings subsequent to the cognizance of the complaint, the vendor Nathmal was served and he appeared in the court on 25.1 1.1999. The petitioner as well as the manufacturing company were not served with the summons/bailable warrants issued on the complaint until the year 2008. Now the instant miscellaneous petition has been preferred before this Court on behalf of the firm M/s Laxmi Agencies seeking quashing of the complaint qua the petitioner. 9. Having considered the arguments advanced at the bar and after going through the material available on record, it is manifest that the inaction of the complainant in not taking cognizance of the applications filed by the accused persons for sending the referee sample of the insecticide for reanalysis to the Central Insecticides Laboratory resulted into the shelf-life of the sample expiring. 10. It is evident from the circumstances available on record that in view of the intimation given by the accused seeking to challenge to the report of the Government Analyst, the concerned officer was under an obligation to take prompt action upon such intimation by requesting to the court concerned that the referee sample should be sent for analysis to the Central Laboratory but no such action was taken. 11. . The Hon'ble Apex Court, dealing with a similar situation, in the case of Northern Minerals Ltd. v. Union of India & Anr. 11. . The Hon'ble Apex Court, dealing with a similar situation, in the case of Northern Minerals Ltd. v. Union of India & Anr. (supra), held as below: "Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before Court where proceeding in respect of the samples is pending. Further the Court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the Intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to Central Insecticides Laboratory. It may be mentioned herein that shelf life of the insecticides had expired even prior to the fling of the complaint. The position, therefore, which emerges is that by sheer inaction the shelf life of the sample of Insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal prosecution against the appellant to continue shall be futile and abuse of the process of Court." 12. It is, thus, manifest that in this case the proceedings of the complaint against the petitioner are vitiated because there has been a gross violation of petitioner's right to challenge the report of the Government Analyst by having the second sample/referee sample of insecticide analysed by the Central Laboratory. This violation of the right of the petitioner appears to be solely because of the negligence/inaction committed by the concerned officer. 13. As a result of the discussion made here-in-above, the prosecution of the petitioner in this case cannot be permitted. 14. This violation of the right of the petitioner appears to be solely because of the negligence/inaction committed by the concerned officer. 13. As a result of the discussion made here-in-above, the prosecution of the petitioner in this case cannot be permitted. 14. The upshot of the above discussion is that the miscellaneous petition succeeds. The criminal proceedings against the petitioner in Criminal Case No. 187 /2004, State v. Bhuti Beel Bhandar & Ors. pending in the Court of the Additional Chief Judicial Magistrate, Nagaur are hereby quashed. 15. It is an unfortunate situation that the wholesaler of the insecticide is being let free because of the negligent inaction of the concerned Additional Director, Agriculture, Nagaur. A copy of this order be sent to the Secretary, Agriculture, Government of Rajasthan as well as to the Director, Agriculture, Government of Rajasthan, Jaipur for intimation and necessary action.Petition allowed. *******