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Gujarat High Court · body

2016 DIGILAW 2110 (GUJ)

Jayveer Agro Centre v. State of Gujarat

2016-10-07

A.Y.KOGJE

body2016
JUDGMENT : A.Y. KOGJE, J. 1. This petition is filed with a prayer to quash complaint being Criminal Case No.3413 of 2011 dated 06.06.2011 filed before the Chief Judicial Magistrate, Palanpur, Dist. Banaskantha. 2. The complaint is filed under Section 3(k)(i) of the Insecticides Act, 1968 (“the Act” for short) alleging offences under Sections 17(1)(a) and 18(1)(c) and punishable under Section 29 of the Act. 3. There are four petitioners before this Court. Petitioner No.1 is a dealer, petitioner No.2 is the person responsible for the management of the dealer firm, petitioner No.3 is the manufacturer and petitioner No.4 is the proprietor of the manufacturing firm. 4. The facts in brief are as under:- 4.1 The insecticide in question is “Fenvalerate 0.4% DP” sold in the brand name of “Sharpkill-50”. In the complaint registered in June 2011, it is alleged that during the visit to petitioner No.1 premises on 30.01.2010, samples of the said insecticide were drawn and as per the provisions of law, the samples were segregated and one sample was sent for analysis. The information of the sample being sent was given to the accused persons and when the analysis report was received, it was found that instead of 0.4%, ingredients of fenvalerate active were reported to be 0.28% and hence, this would fall in definition of Section 3(k)(i) pertaining to misbranding and hence, offence against the concerned persons came to be registered. 5. Heard learned Advocate Shri Hriday Buch for the petitioners and learned APP Ms. Hansa Punani for the respondent-State. 6. Learned Advocate for the petitioners contended that the complaint cannot be permitted to proceed further on account fatal delay and no explanation coming forth for such delay between the date of sample being drawn and filing of the complaint. He submitted that when the result of the analysis from Laboratory was received, show cause notice was issued to the petitioners calling upon them to submit their explanation. The petitioners did submit their explanation to such show-cause notice and thereafter, for a long period, no action was taken, giving reasons to the petitioners to believe that the explanation submitted by the petitioner has been accepted and no further action was contemplated. 6.1. The petitioners did submit their explanation to such show-cause notice and thereafter, for a long period, no action was taken, giving reasons to the petitioners to believe that the explanation submitted by the petitioner has been accepted and no further action was contemplated. 6.1. Learned Advocate for the petitioners submitted that on account of the delay on the part of the Department to initiate any action against the petitioners, it has deprived the petitioners of their valuable right provided under the Act itself for re-analysis of the sample, which is the base of the prosecution as the shelf life of such sample had expired when the complaint came to be filed. He also submitted that Indian Standards Act stipulates six specifications for the product fenvalerate 0.4% and to conclude that the product is not matching with the prescribed norms, six tests are prescribed under the Indian Standard Act and to treat the product under misbranding, it would be necessary to carry out all the six tests prescribed under the Indian Standards Act and if product fails on such count then only misbranding would be attracted. He submitted that merely testing active ingredients will not constitute misbranding of the product. 6.2. Learned Advocate for the petitioners referred to and relied upon judgment of the Apex Court in the case of State of Punjab Vs. National Organic Chemical Industries Ltd., reported in (1996) 11 SCC 613 . He drew attention of the Court to paras-5 and 6, which read as under :- “5. A reading thereof would indicate that Insecticide Inspector is empowered to take samples of insecticides for the purpose of test or analysis, as contemplated and in the manner laid down in the Act and the rules. He shall divide the sample into three portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked. Under the proviso, where the insecticide is made up in containers of small volume instead of dividing a sample as specified, the Insecticide Inspector may, and if the insecticide be such that it is likely to deteriorate or be otherwise damaged by exposure, shall, take three of the said containers after suitably marking the same and, where necessary, sealing them. Under the proviso, where the insecticide is made up in containers of small volume instead of dividing a sample as specified, the Insecticide Inspector may, and if the insecticide be such that it is likely to deteriorate or be otherwise damaged by exposure, shall, take three of the said containers after suitably marking the same and, where necessary, sealing them. Under sub-section (6), the Insecticide Inspector thereafter shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it and he shall retain the remainder and dispose of the same as envisaged in clauses (i) and (ii). After the receipt of the report, sub-section (3) of Section 24 declares that- "any document purporting to be a report signed by an Insecticide Analyst, shall be evidence of the facts stated 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 controversion of the report." Sub-section (4) of Section 24 envisages that- "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 controversion, the Insecticide Analyst's report, the court may, of its own motion or n 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 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 therein.” Under sub-section (6), the cost of the test or analysis made by the Central Insecticide Laboratory, under Sub-section (4) shall be paid by the complainant or the accused, as the court shall direct. Thus, it would be clear that after the inspection and seizure of the insecticide, the Insecticide Inspector shall divide the insecticide into three portions, as contemplated and in the manner prescribed and deliver one such sample to the manufacturer or person from whom insecticide was taken. One should be sent to the Insecticide Analyst. After the receipt of the report, the accused would be notified of the result of the report. Thereafter, the complaint is required to be lodged in the Court. At that stage, two options are open to the accused. The accused s entitled to have one copy of the sample entrusted to him to have it notified to the Court for proving to be contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the Court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under sub-section (3) of Section 24. The other option is, after the complaint is laid in the Court, the copy of the sample that is lodged with the Court by the Insecticides Inspector, would be requested to be sent by the Court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, consent and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court. 6. Unfortunately, in this case, the appellant did not adopt the course as was required under the Act. Of course, the respondent, without availing of the remedy of report by Director of CIL, may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail the statutory defence. The appellant had not given third sample to the respondent. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him. The appellant had not given third sample to the respondent. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him. Under these circumstances, we think that further proceedings in the Court of the Chief Judicial Magistrate would be rendered fruitless. Consequently, though for different reasons the complaint quashed by the Court may be justified warranting no interference.” 6.3. Learned Advocate for the petitioners also referred to and relied upon judgment of the Apex Court in the case of State of Haryana Vs. Unique Farmaid (P) Ltd. & Ors., reported in (1999) 8 SCC 190 . He drew attention of the Court to paras-9 and 10, which read as under :- “9. The principal contention of Unique Farmaid and its Sales Officer before the High Court was that no action was taken by the Insecticide Inspector to have the sample re-tested from the Central Insecticides Laboratory in terms of their request and that by the time they were asked to appear in the court to stand their trial, shelf life of the insecticide, of which sample was taken, had already expired. They were, thus, deprived of their valuable right of their defence. High Court found substance in their plea and said that once it is evident that the accused had been deprived of their right under Section 24 of the Act, it was obvious that they were prejudiced and it would be an abuse of the process of Court for the complaint to proceed further. 10. It has been submitted before us as well as before the High Court that the Insecticide Inspector was not competent to send the sample for re-testing to the Central Insecticides Laboratory and that request for re-testing should have been made to the Court concerned. Then the State has further submitted that no other defence than prescribed under Section 30 of the Act could he allowed to be raised in the prosecution filed under the Act and further that the shelf life of the sample was not relevant as the Act does not prescribe any expiry date. There is no substance in either of these contentions. There is no substance in either of these contentions. If the expiry date is not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the date of manufacture of the article and the expiry date are mentioned. We do not find any answer to this by the State. In support of this submission, no rule has been cited and no evidence produced showing that the expiry date of the insecticide is inconsequential. Section 30 provides for defences which may or may not be allowed in prosecution under the Act. Section 30 is as under : "30. Defences which may or may not be allowed in prosecutions under this act. - (1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Act to prove merely that the accused was ignorant of the nature or quality of the insecticide in respect of which the offence was committed or of the risk involved in the manufacture, sale or use of such insecticide or of the circumstances of its manufacture or import. (2) For the purposes of section 17, an insecticide shall not be deemed to be misbranded only by reason of the fact that: (a) there has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or the preparation of the insecticide as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the insecticide or to conceal its inferior quality or other defect; or (b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it. (3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves : (a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof; (b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and (c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it." 6.4 Learned Advocate for the petitioners thereafter relied upon judgment of the Punjab & Haryana High Court in the case of Jhajhan Lal Gupta, Director & Anr. Vs. State of Haryana, reported in 1996 (2) PCC 352. He drew attention of the Court to para-10, which reads as under :- “10. There is no provision under the Act that the manufacturer can get the sample re-tested before launching prosecution against him except in sub-section (3) whereby he can challenge the report of the Insecticide Analyst only. Section 24 of the Act confers two rights i.e. the right to challenge the correctness of the report of the analysis on the receipt of the show cause notice, and secondly to challenge, the same and to make a request before the court for -re-analysis of the counter sample after the complaint is filed. The provisions of this section simply provides that in case a written request is made by the manufacturer expressing its intention to controvert the report of the Analyst, the report shall not be conclusive evidence of the fats contained therein. Therefore, the service of the notice regarding the sample being misbranded or intimating the manufacturer that the re-analysis can be ordered by a Court before the date of expiry of shelf life of the insecticide, is of no consequence. The material requirement of the Act is that the complaint should be filed and the accused should be served well in time before the expiry of the shelf life of the insecticide in question so as to enable the accused persons to challenge the correctness of the report of the analyst by forwarding the counter part of the sample to the Central Laboratory. If this right of an accused under Act is violated by inaction or omission on the part of the department, the same is fatal to the prosecution.” 7. As against this, learned APP Ms. Hansa Punani for the State defended the proceedings under the complaint and by referring to the affidavit on behalf of the respondent contended that the judgment relied upon by learned Advocate for the petitioners in the case of Unique Farmaid (P) Ltd (supra) is not applicable to the facts of the case as in that case, the accused had requested for re-analysis of the sample by the Insecticides Inspector, which was denied whereas in the instant case, there has been no request for re-analysis by the Insecticides Inspector. 7.1 She also contended that the petitioners were informed about the analysis report and the fact that as per the analysis report, the samples have failed and therefore, now attempt on the part of the petitioners by raising such contention of not being able to get the samples re-analysed before expiry of the shelf life is an afterthought and delay tactic adopted. She contended that the petitioners have neither obtained analysis report of the insecticide from the producers of the insecticides nor tested such insecticides to know the quality character of such insecticides, which otherwise was available to the petitioners under Section 30(1) and 30(2) of the Act. 8. Having heard both sides and having perused the record, following dates are relevant and which are not disputed. 8.1 The product is of November 2009 and the expiry date prescribed is May 2011. In this case, samples of the product were taken in January 2010 and one sample was sent for analysis. On 23.02.2010, report was received indicating that the active ingredients in the produce was 0.28% as against prescribed 0.4%. Therefore, show-cause notice dated 08.03.2010 came to be issued, which the petitioners replied on 15.03.2010 and 30.04.2010. In one such reply, the petitioners had indicated that the product is confirming with the standards. However, there appears to be some mistake in the report of the Analyst, thereby not agreeing to the analysis report. The complaint came to be filed in June 2011 and summons were issued in September 2011. In one such reply, the petitioners had indicated that the product is confirming with the standards. However, there appears to be some mistake in the report of the Analyst, thereby not agreeing to the analysis report. The complaint came to be filed in June 2011 and summons were issued in September 2011. Therefore, after filing of reply to the show cause notice on 15.03.2010, first time, information with regards to commencing of proceedings under the Act came to the knowledge of the petitioners upon receipt of the summons in September 2011. It is at that stage that the petitioners filed the present petition and this Court while issuing notice on 28.11.2011, granted ad interim relief in terms of para-7(B) staying the further proceedings in connection with the present complaint. Again this Court by order dated 08.02.2012, admitted the matter and confirmed interim relief. 9. This Court finds that the action on the part of the complainant to lodge the complaint in June 2011, after having received analysis report in February 2010 and having received explanation of the show cause notice on 15.03.2010, more particularly when the prescribed expiry date of the product was May 2011, had deprived the petitioners of their legitimate rights to get the samples analyzed to build up their defence. The action on the part of the complainant is not in consonance with the view expressed by the Apex Court in the case of National Organic Chemical Industries Ltd. (supra), wherein in para-6, the Apex Court has held that the complaint should be lodged with utmost dispatch so that the accused may opt to avail the statutory defence and if the accused is deprived of such opportunity, any further proceedings would be rendered fruitless. This Court finds that in the instant case, the petitioners are indeed deprived of their valuable right to build up their defence, as after explanation to the show cause notice, no action was contemplated leading the petitioners to believe that the explanation is accepted. 10. This Court is in agreement with the observations made by Punjab & Haryana High Court in the case of Jhajhan Lal Gupta (supra) as going through the provisions of the Act, there does not appear to be a stage prescribed at which all manufacturers of insecticides can get the sample given to the manufacturer after the samples are drawn for proceeding before launching of any prosecution. Section 24 of the Act deals with report of insecticide Analyst. Sub-section (2) of Section 24 provides for the Insecticide Inspector to deliver one such copy of the report to the person from whom the samples were taken and to retain one copy for use in any prosecution in respect of the sample. Subsection (3) provides for any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein and that such evidence is provided to be a 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 proceeding in respect of the sample are pending that he intends to adduce evidence in controversion of the report. Sub-section (4) of Section 24 provides that unless the sample has already been tested or analyzed in the Central Insecticides Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion 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 to be sent for test or analysis to the said Laboratory. 11. It can be argued that as provided for under Section 24(3), if an accused person does not notify in writing the Insecticide Inspector within twenty eight days of the receipt of the copy of the analysis report then the accused person has waived of any right to get the samples re-analyzed subsequently. This argument cannot absolve the Department fro its responsibility to initiate proceedings forthwith. At least it would not permit the Department to sit tight over the sample analysis report till the expiry of the prescribed date of the product. The right available to the accused person in case of prosecution is well crystallized. 12. The aforementioned provisions are therefore clearly providing for the manufacturer to build up his defence by adducing evidence in controversion to the Insecticide Analyst’s report. Even the Court on its own motion or in its discretion can resort to such steps. But, moving the Court in the instant case after expiry date of the product has deprived the petitioners from resorting to the rights under the Act. 13. Even the Court on its own motion or in its discretion can resort to such steps. But, moving the Court in the instant case after expiry date of the product has deprived the petitioners from resorting to the rights under the Act. 13. On this short ground, the Court is, therefore, inclined to quash the proceedings of Criminal Case No. 3413 of 2011 filed and pending before Chief Judicial Magistrate, Palanpur, Dist. Banaskantha. The same is accordingly quashed. The petition is allowed. Rule is made absolute. Petition allowed.