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Krishi Kainder v. State Of Punjab .
Factual and Procedural Background
The petition challenges the complaint dated 2.2.1995 (Ann. P.2) filed under Sections 3(k)(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules, 1971, and all consequential proceedings pending in the Court of Chief Judicial Magistrate, Amritsar.
The petitioner-firm, licensed to sell and distribute insecticides, with Shri Amrik Singh as sole proprietor, had three samples of Monocrotophos 36% SL (brand Monosul 36%) drawn by the Insecticide Inspector on 15.2.1994. One sealed sample was given to the firm's accountant, one was sent for analysis to the Senior Analyst, Insecticide Testing Laboratory, Amritsar, and a third part was retained in the office. The Analyst reported the sample as misbranded, finding 30.55% active ingredient against the declared 36% SL. On that basis the complaint dated 2.2.1995 was filed against the petitioner, manufacturer and others.
The petitioner replied to the show-cause notice by a detailed reply dated 16.5.1994 (Ann. P.1) requesting re-analysis of the counterpart sample at the Central Insecticide Laboratory (CIL) under Section 24(4) of the Act. The petitioner alleges that the counterpart sample was not sent for re-analysis and that the complaint was filed after the product's expiry date (manufactured July 1993; expiry December 1994), thereby depriving it of the statutory right to re-analysis and to mount a defence.
The State, via affidavit of the Insecticide Inspector, did not dispute the facts regarding sample-taking and the petitioner's reply but contended that the right to obtain an order for re-analysis under Section 24(4) is vested in the Court and that the petitioner should have approached the Court for that purpose.
Legal Issues Presented
- Whether the complaint dated 2.2.1995 should be quashed because the counterpart sample was not sent for re-analysis at the Central Insecticide Laboratory, thereby depriving the petitioner of the right under Section 24 of the Insecticides Act to challenge the Analyst's report.
- Whether filing the complaint after the expiry of the insecticide's shelf life (i.e., after December 1994) and failing to send the counterpart sample for re-analysis is fatal to the prosecution under the Act.
- Whether the right to obtain re-analysis (under Section 24(4)) vests with the Court so that the petitioner was obliged to approach the Court for an order for re-analysis, and whether the State's inaction nonetheless violates the petitioner's statutory rights.
Arguments of the Parties
Petitioner's Arguments
- The petitioner argued that on receiving the show-cause notice (26.4.1994) it replied on 16.5.1994 (Ann. P.1) requesting that the counterpart sample be sent to the Central Insecticide Laboratory for re-analysis, expressing dissatisfaction with the testing laboratory's report.
- The petitioner submitted that despite this request, the counterpart sample was not sent for re-analysis and that the complaint was filed on 2.2.1995—after the expiry date—thus depriving it of the statutory right under Section 24 to obtain re-analysis and to properly defend itself.
- On that ground alone, the petitioner urged that the complaint and consequential proceedings be quashed.
Respondent/State's Arguments
- The State contended that under Section 24(4) the jurisdiction to order re-analysis is vested in the Court, and therefore the petitioner, after receipt of the show-cause notice and the Analyst's report, should have approached the Court to obtain an order for sending the counterpart sample to the Central Insecticide Laboratory.
- The State argued that since the petitioner did not take such steps to approach the Court, there was no violation of the petitioner's rights by the State.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Cr. Misc. No. 9158-M of 1995 — Jhajhan Lal Gupta v. State of Haryana (decided 5.2.1996) | That Section 24(3) and (4) confer (a) the right to challenge the Analyst's report on receipt of show-cause notice and (b) the right to request the Court for re-analysis; and that the complaint must be filed in time to permit forwarding the counterpart sample to CIL—failure by the department to do so is fatal to the prosecution. | The Court relied on this authority to conclude that a written request by the manufacturer to controvert the Analyst's report prevents the report from being conclusive and that failure to file complaint before expiry or to allow re-analysis is fatal to prosecution. |
| Cr. Misc. No. 15276-M of 1995 — Cashew Agrichemicals Pvt. Ltd. v. State of Punjab (decided 14.10.1996) | Expresses the same view as earlier authorities regarding the necessity of permitting re-analysis and timely filing so as not to deprive accused of statutory defence. | The Court recorded that the same view was taken in this judgment and treated it as supporting the proposition that failure to facilitate re-analysis or filing before expiry undermines the prosecution. |
| Crl. Misc. No. 5095-M of 1995 — Unique Paramid Pvt. Ltd. v. State of Punjab (decided 7.9.1995) | Same legal position: failure to enable re-analysis or to file complaint timely can deprive accused of statutory defence under Section 24. | Noted by the Court as part of a consistent line of authority endorsing quashing where re-analysis opportunity was foreclosed. |
| Crl. Misc. No. 21572-M of 1995 — Jaishree Pvt. Ltd. v. State of Haryana | Same view (as recorded by the Court) that prejudice to the accused from failure to allow re-analysis is fatal to prosecution. | Relied upon as part of consistent precedents supporting quashing of complaints where statutory re-analysis opportunity was denied. |
| Crl. Misc. No. 5596-M of 1996 — Balwant Singh v. State of Punjab (decided 10.4.1996) | Reflects the same principle regarding the necessity of permitting re-analysis and timely prosecution to preserve the accused's statutory defence. | Used by the Court as further authority showing a consistent approach to quashing prosecutions where re-analysis was not made available and complaint was filed late. |
| State Of Punjab v. National Organic Chemical Industries Ltd., JT 1996 (10) SC 480 (Supreme Court) | That complaints should be lodged with utmost dispatch so the accused may avail the statutory defence; denial of third sample or delay causing deprivation of testing by CIL results in deprivation of a valuable defence and may render proceedings fruitless. | The Court relied on this apex-court authority to support the conclusion that where the department's omissions prevented re-analysis and the complaint was filed after expiry, further proceedings would be rendered fruitless and quashing was justified. |
Court's Reasoning and Analysis
The Court set out the relevant statutory provisions, quoting Section 24(3) and (4) of the Insecticides Act. Section 24(3) makes the Insecticide Analyst's report evidence conclusive unless the person from whom the sample was taken notifies within 28 days an intention to adduce evidence contradicting the report. Section 24(4) provides that, where such notification has been given and the sample has not already been tested at the Central Insecticide Laboratory, the Court may, of its own motion or on request of either party, cause the sample to be sent to the Central Insecticide Laboratory for test and that the CIL's report shall be conclusive.
The Court noted the admitted facts: the sample was taken on 15.2.1994; the petitioner replied on 16.5.1994 requesting re-analysis at the Central Insecticide Laboratory; no counterpart sample was sent for re-analysis; and the complaint was lodged on 2.2.1995—after the insecticide's expiry in December 1994. Given these facts, the Court concluded that the petitioner was deprived of its statutory right to have the counterpart sample re-analysed and thereby deprived of the opportunity to defend itself effectively.
The Court examined the competing contention that the power to order re-analysis lies with the Court (per Section 24(4)) and that the petitioner should have applied to the Court; however, the Court treated the department's omission—filing the complaint so late and not permitting re-analysis—as the decisive defect. The Court relied on a line of precedents, including a Supreme Court decision, which held that where the third sample was not provided or where the complaint was not lodged with dispatch so as to permit sending the counterpart to CIL, the accused was prejudiced and the prosecution could be quashed.
On that basis, the Court held that there was a clear violation of Section 24 of the Act and that the respondent's omission to file the complaint before the expiry of the product's shelf life was fatal to the prosecution.
Holding and Implications
Holding: The petition is allowed and the complaint dated 2.2.1995 (Ann. P.2) and all consequential proceedings arising therefrom, insofar as they concern the petitioner and are pending in the Court of Chief Judicial Magistrate, Amritsar, are quashed.
Implications: The direct effect of the decision is that the prosecution against the petitioner under the cited provisions of the Insecticides Act is terminated by quashing the complaint and the associated proceedings. The Court's decision is grounded in existing authorities and applies settled principles concerning the right to re-analysis under Section 24; the opinion does not purport to lay down a new principle of law beyond the scope of those precedents.
Appeal dismissed.
N.C Khichi, J. (Oral):— Herein, the prayer is for quashing the complaint dated 2.2.1995 (Ann. P. 2) under Sections 3(k)(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 (hereinafter referred to as the ‘Act’) read with Rule 27(5) of the Insecticides Rules, 1971 as well as all the consequent proceedings arising thereof, now pending in the Court of Chief Judicial Magistrate, Amntsar.
2. The petitioner-firm is selling and distributing insecticides/pesticides under a licence duly issued by the Chief Agricultural Officer, Arriritsar, and Shri Amrik Singh is its sole proprietor. On 15.2.1994, Shri Swinder Singh, Insecticide Inspector in the presence of Amrik Singh, the Agricultural Development Officer, Amritsar, visited the premises of the petitioner-firm and drew 3 samples of Monocrotophos 36% SL (brand name Monosul 36%) bearing batch No. 338, date of manufacturing July, 1993 and date of expiry December, 1994, manufactured by M/s Sulphur Mills Pvt. Ltd., T.V Estate SK Ahir Marg, Worli, Bombay. One sealed sample was handed over to Shri Vijay Kumar Dogra, Accountant against a valid receipt. One sealed sample together with memorandum in form XII was sent to the Senior Analyst, Insecticide Testing Laboratory, Amritsar, for analysis whereas third part of the test sample was kept in the office. The Analyst, vide his report found the sample as misbranded as it did not conform to ISI specifications as it contained 30.55% active ingredient against the granted percentage of 36% SL and on that basis, the complaint dated 2.2.1995 (Ann.P 2) was filed in the Court of Chief Judicial Magistrate, Amritsar, against the petitioner, manufacturer and others.
3. It is alleged by the petitioner that a detailed reply dated 16.5.1994 (Ann.P 1) was given to the Chief Agricultural Officer, in response to the show cause notice dated 26.4.1994, wherein it was specifically mentioned that the petitioner was not satisfied with the report of the testing Laboratory and requested for sending the sample for reanalysis to the Central Insecticide Laboratory. However, without sending the sample for re-analysis to the Central Insecticide Laboratory as provided under Section 24(4) of the Act the complaint was filed. It is further alleged that the petitioner has been deprived of its valuable right under the Act for getting the sample re-analysed from the Central Insecticide Laboratory due to the negligence on the part of the complainant-respondent as the complaint was filed after the expiry of shelf life of the sample.
4. On receipt of the notice, the respondent-State filed reply in the form of affidavit of Swinder Singh, Insecticide Inspector, wherein factual position with regard to the taking of samples and issuance of show cause notice and receipt of reply thereto has not been disputed. However, it was pleaded that the Chief Agricultural Officer, Amritsar, intimated the petitioner vide letter No. 9401, dated 19.7.94 (Ann.R 1) that according to section 24(4) of the Act the right to get order for re-analysis is vested with the Court of law and the petitioner should approach the Court for that purpose.
5. I have heard the learned counsel for the parties and have perused the record.
6. Shri Ravinder Chopra, learned counsel for the petitioner has vehemently argued that the sample of the insecticide in question was taken on 15.2.1994, the manufacturing date of which was July, 1993 and the expiry date was December, 1994. He has further submitted that in response to the show cause notice dated 26.4.1994, a proper reply dated 16.5.1994 (Ann.P 1) was sent and it was made clear that the petitioner was not satisfied with the report of the testing Laboratory and requested the Chief Agricultural Officer, Amritsar for sending the counterpart of the sample for re-analysis to the Central Insecticide Laboratory. He has further submitted that the counterpart sample was not sent as prayed for, and the complainant filed the complaint (Ann.P 2) dated 2.2.1995, i.e much after the expiry of the shelf life of the insecticide and in this manner, the petitioner has been deprived of his valuable right under section 24 of the Act and on this ground alone the complaint is liable to be quashed.
7. On the other hand, the learned Deputy Advocate General has forcefully argued that after receipt of the show cause notice, it was for the petitioner-firm to have approached the Court for sending the counter sample to the Central Insecticide Laboratory and since no step was taken in that direction, therefore, there is no violation of any right of the petitioner.
8. I have given my thoughtful consideration to the respective arguments of the counsel for the parties. In order to appreciate these arguments of the learned counsel for the parties, the relevant portion of section 24 of the Act may be noticed as under:—
“(3) Any document supporting (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 sample 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 Insecticide Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversy 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 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.”
9. From the perusal of the above provisions it is quite clear that the petitioner had a right to get the sample re-analysed since it was informed that the sample was found to be mis-branded. It is admitted fact on record that on receipt of show cause notice dated 26.4.1994, along with the report, the petitioner intimated the respondent vide reply dated 16.5.1994 (Ann.P 1) that the report of the Analyst was not acceptable being not correct and the counter-sample be sent for re-analysis to the Central Insecticide Laboratory. It is an admitted fact that no counter-sample was sent to Central Insecticide Laboratory, as prayed for by the petitioner and that the complaint (Ann.P 2) was filed on 2.2.1995, in the Court of Chief Judicial Magistrate, Amritsar, against the petitioner, manufacturer and others. It is admitted case of the parties that the manufacturing date of the insecticide, in question was July 1993 and the expiry date was December, 1994. Since the complaint was filed on 2.2.1995 i.e much after the expiry of the shelf life of the insecticide, therefore, the petitioner has been deprived of a valuable right to defend in the proceedings. In Criminal Misc, No. 9158-M of 1995 Jhajhan Lal Gupta… v. State Of Haryana…., decided on 5.2.1996, it was held by a Single Bench of this Court as under:—
“There is no provision under the Act that the manufacturer can get the sample retested 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 provide 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 facts contained therein. Therefore, the service of the notice regarding the sample being mis-branded 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 counterpart of the sample to the Central Laboratory. If this right of an accused under the Act is violated by inaction or omission on the part of the department, the same is fatal to the prosecution.”
10. Same view was taken in the judgments delivered in Cr. Misc. No. 15276-M of 1995 (Cashew Agrichemicals Pvt. Ltd. v. State of Punjab), decided on 14.10.1996, Crl. Misc. No. 5095-M of 1995 (Unique Paramid Pvt. Ltd. v. State of Punjab), decided on 7.9.1995, Crl. Misc. No. 21572-M of 1995 (Jaishree Pvt. Ltd. v. State of Haryana) and Crl. Misc. No. 5596-M of 1996 (Balwant Singh v. State of Punjab), decided on 10.4.1996 In the State Of Punjab v. National Organic Chemical Industries Ltd., JT 1996 (10) SC 480, the apex Court held as under:—
“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. 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.”
11. In view of the law and the facts of the case discussed above, it becomes clear that there has been a clear violation of the provisions of Section 24 of the Act and the valuable right of the petitioner has been taken away by the inaction and sheer negligence on the part of the complainant-respondent by not filing the complaint before the expiry of the shelf life of the insecticide in question. This omission on the part of the respondent itself is fatal to the case of the complainant.
12. In view of the foregoing discussion, this petition is allowed and the complaint dated 2.2.1995 (Ann.P 2) and all consequential proceedings arising thereof qua the petitioner and pending in the Court of Chief Judicial Magistrate, Amritsar, are hereby quashed.
Appeal dismissed.
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