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Case Number

Criminal Misc. No. 10836-M-1990

Attorney(S)

P.S. Thaira
Arun Nehra
V.P. Vashi

Judges

J.S Sekhon, J.

Acts

Section 3(k)(i) read with Sections 17, 18, 29 and 33 of the Insecticides Act, 1968
10 days. Provisions of Sections 18-A, 23 and 25 of the Drugs and Cosmetics Act
provisions of Section 13(2) of the Prevention of Food A Iteration Act, 1954,
Section 13(2) of the Prevention of Food Adulteration Act, 1954,
provisions of Section 3(k)(i) of the Insecticide Act, 1968.
provisions of sub-section (4) of Section 24 Page: 100and
provisions of Sub-section(4) of Section 24
provision of sub-section 4) of Section 24
provisions of Food Adulteration Act
sub-section (4) of Section 24.10.
sub-section (4) of Section 24
sub-section (6) of section 22,

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Smart Summary

Summary of the Opinion by J.S. Sekhon, J.

Factual and Procedural Background

Two criminal miscellaneous petitions (Criminal Misc. No. 10833-M of 1990 and Criminal Misc. No. 10836-M of 1990) were taken up together because they involve substantially similar legal questions relating to the Insecticides Act, 1968 though the factual matrices differ.

In Criminal Misc. No. 10836-M of 1990: on 23-1-1987 an Insecticides Inspector took samples of "Penvel" (Fenvelerate) insecticide, batch No. 579, from a dealer. Samples were sealed in the presence of the dealer's representative; one sample was sent to a notified branch of the Central Insecticide Laboratory (Central Plant Protection Training Institute, Rajinder Nagar, Hyderabad). The Director of the Central Insecticides Laboratory tested the sample and reported that it did not conform to ISI specifications in active ingredient content and declared it misbranded under Section 3(k)(i) of the Insecticides Act. A complaint for offences under Section 3(k)(i) read with Sections 17, 18, 29 and 33 of the Act (and Rule 27(5) of the Insecticide Rules, 1971), after obtaining sanction, was filed on 10-7-1989; summons were received by the manufacturer on 21-11-1989.

In Criminal Misc. No. 10833-M of 1990: a sample of Fenvelerate was taken on 19-1-1988; the label indicated manufacture in August 1987 and expiry in July 1989. The complaint was filed on 11-7-1989 and summons were served around 31-5-1990. The sample in that matter was tested at the outset by the Central Insecticides Laboratory, Faridabad.

Both petitions raise challenges to the complaints on grounds related to delay, the right to have samples re-tested, the procedural sufficiency of analysis and sanctions, and the scope and vires of Section 24 of the Insecticides Act.

Legal Issues Presented

Whether filing of a complaint after the expiry of the shelf life of an insecticide debarred the accused of the right to have the sample re-tested at the Central Insecticides Laboratory under sub‑section (4) of Section 24 of the Insecticides Act, 1968.
Whether an initial testing of the sample at the Central Insecticides Laboratory (rather than at the State Insecticide Analyst) precludes the accused from claiming the right of re‑testing under sub‑section (4) of Section 24 — i.e., whether initial testing at the Central laboratory renders any later complaint delay irrelevant to that right.

Arguments of the Parties

Manufacturer / Petitioner (summary of arguments, as presented in the opinion)

The complaint was filed long after the expiry date of the insecticide (examples: expiry November 1987, complaint filed July 1989), which resulted in loss of the manufacturer's valuable right to get the sample re‑tested at the Central Insecticides Laboratory.
There was no statutory standard of toxicity prescribed under the Insecticides Act; therefore, an analyst's report that the sample contained a higher active ingredient is of questionable consequence — reliance was placed on Madan Dangi v. State of Punjab (1987 CLJ 138).
Objection was taken to loss of the right to have the sample re‑tested under Section 24(4) because the sample had not been tested by the State Analyst and the Insecticide Analyst's report was received beyond the 60‑day period prescribed by Section 24(1).
Complaint that the analyst's report was not served on the person from whom the sample was taken within the statutory period; challenge to the vires of Section 24 as violating principles of natural justice because it does not require service of the analyst's report upon the manufacturer.
Comparative reliance on provisions in related statutes (Prevention of Food Adulteration Act; Drugs and Cosmetics Act) which provide for supplying the analyst's report to both dealer and supplier and prescribe a period (e.g., 10 days) to challenge — used to argue that Section 24 is deficient in procedural safeguards.
Validity of consent for prosecution under Section 31(1) was challenged on grounds of non-application of mind and because prosecution was initiated after the expiry of the product's shelf life; A.K. Roy v. State of Punjab (1986) was cited regarding sanction requirements.

The opinion does not contain a detailed statement of the State's or other respondents' counterarguments in the text provided; only that learned counsel for parties were heard.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Madan Dangi v. State of Punjab (1987 Criminal Law Journal 138)	Relied upon in support of the contention concerning absence of prescribed toxicity standards under the Insecticides Act and the evidentiary value of an analyst's report.	The opinion records that reliance was placed on this decision by the petitioner; the judgment does not elaborate further factual application of Madan Dangi beyond noting the reliance.
A.K. Roy v. State of Punjab, (1986) 4 SCC 326 : AIR 1986 SC 2160	Referred to on the question of sanction under the relevant provisions (i.e., the correctness and requirements of sanction for prosecution).	The decision was cited by the petitioner in relation to the validity of consent for prosecution under Section 31(1); the opinion records that the decision was referred to but does not set out detailed reliance beyond noting the reference.
Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970	Principle that inordinate delay in instituting prosecution can deprive a vendor of a valuable right under the statute (there, Section 13(2) of the Prevention of Food Adulteration Act) to have the sample analysed by the Director of the Central Food Laboratory.	The Court applied the dictum analogously to insecticide cases: where delay causes deterioration of the sample so that re‑testing by Central Laboratory is impossible, the accused/vendor is prejudiced and prosecution instituted with such delay may not be proper. This authority was used as a principal analogy to support the conclusion that delay can deprive the accused of the right under Section 24(4) of the Insecticides Act.
H. Lange v. The State of Punjab, 1986 (1) CLR 383 (Single Judge)	Held that filing a complaint after the expiry date of an insecticide resulted in debarring the accused from exercising the right under Section 24(4) to have the sample re-tested at the Central Insecticides Laboratory.	The opinion records this Single Judge decision as following the Municipal Corporation principle and quashing proceedings where the complaint was filed after expiry and the sample had been first tested by a State analyst.
S.K. Ahooja v. State of Haryana, 1989 (1) RCR 596 (Single Judge)	Same proposition as H. Lange: filing after expiry led to deprivation of the right to re‑testing under Section 24(4).	Recorded as a precedent where the learned Single Judge quashed proceedings on the ground that the accused had been deprived of his valuable right to re‑testing due to delay.
Bhai Manjit Singh (Managing Director, Montari Industries Ltd.) v. The State of Punjab, 1992 (1) RCR 244 (Single Judge)	Same theme: holding that complaints filed after the expiry date resulted in debarring the accused from re‑testing under Section 24(4).	Recorded as part of the line of Single Judge decisions that quashed proceedings when complaint filing occurred after expiry and initial testing had been by the State analyst.
United Pesticides v. State of Punjab, 1992 (1) RCR 678 (Single Judge)	Held that sending a sample directly to the Central Insecticides Laboratory could be argued to have deprived petitioners of their right to have the report re‑tested (i.e., contention that petitioners were deprived by such initial Central testing).	The opinion records this Single Bench view and reproduces the reasoning. The present Bench notes that it has taken a different view in another single‑bench decision (S.K. Khurana), and that the issue requires larger‑bench consideration.
S.K. Khurana v. State of Punjab (Criminal Misc. No. 9274-M of 1992)	Contrary single‑bench view: no valuable right of the accused is taken away by getting the sample tested at the outset from the Central Insecticides Laboratory (particularly when State laboratory lacks facilities).	The present opinion records that in S.K. Khurana the court took the opposite view to United Pesticides, supporting the proposition that initial Central testing does not prejudice the accused's rights. Because of these conflicting single‑bench views the present Court considered it necessary to refer questions to a larger bench.

Court's Reasoning and Analysis

The Court carried out a textual and purposive analysis of Section 24 of the Insecticides Act, 1968 and applied established case law on analogous statutory rights.

The Court reproduced the full statutory scheme of Section 24 (sub‑sections (1)–(5)) and identified the operative interplay between sub‑section (3) (which makes an Insecticide Analyst's report evidence, conclusive unless the person from whom the sample was taken, within 28 days of receipt of the report, notifies intention to adduce evidence in controversion) and sub‑section (4) (which permits the Court, on its own motion or at request of complainant or accused, to send the sample for test at the Central Insecticides Laboratory unless the sample has already been tested there).

From a combined reading of these provisions the Court reasoned:

If the sample was first tested by a State Insecticide Analyst (i.e., not the Central Insecticides Laboratory), and the accused gives the statutory notice under sub‑section (3), the Court has discretion under sub‑section (4) to obtain re‑testing at the Central Insecticides Laboratory; therefore the statutory right to re‑testing exists where initial testing was by the State analyst and proceedings are pending.
If a complaint is filed only after expiry of the shelf life of the insecticide, that delay may effectively deprive the accused of the practical ability to have the sample re‑tested — because degradation or change in the sample after expiry could prevent meaningful re‑analysis. On that basis the Court concluded that filing after expiry, where the sample was first tested by the State analyst, will often amount to deprivation of the accused's valuable right under Section 24(4) and may justify quashing the proceedings. The Court applied by analogy the Supreme Court's dictum in Municipal Corporation of Delhi v. Ghisa Ram concerning delay and loss of statutory right to have a sample tested centrally.
Conversely, where the sample was at the outset tested or analysed by the Central Insecticides Laboratory, sub‑section (4) itself prevents a further re‑testing by that same Central Laboratory (it applies "unless the sample has already been tested or analysed in the Central Insecticides Laboratory"). In such a situation, the logic of the statute is that there is no sense in a second Central test; therefore an accused is not prejudiced by a complaint filed after expiry if the Central Laboratory had already tested the sample at the outset. The Court accepted this reasoning and held that in those circumstances a delayed complaint is "of no consequence."

The Court noted the existence of conflicting Single Judge decisions on whether initial testing by the Central Laboratory deprives the accused of rights (United Pesticides taking the view that it does; S.K. Khurana taking the view that it does not) and concluded that the legal controversy is significant and recurring; accordingly, the Court framed two specific questions for determination by a larger Bench.

Holding and Implications

DISPOSED OF BY COMMON ORDER.

Core holdings (as drawn from the opinion):

The Court held that where a sample of insecticide is first tested by a State Insecticide Analyst and the complaint is filed after the expiry of the shelf life of the insecticide, the accused is in practice deprived of his valuable right under sub‑section (4) of Section 24 to have the sample re‑tested by the Central Insecticides Laboratory; such deprivation may warrant quashing the proceedings. The Court relied on the reasoning in Municipal Corporation of Delhi v. Ghisa Ram and several Single Judge decisions applying the same principle.
The Court held that where the sample was at the outset tested or analysed by the Central Insecticides Laboratory, sub‑section (4) of Section 24 excludes re‑testing "unless the sample has already been tested or analysed in the Central Insecticides Laboratory"; consequently, in such cases the filing of a complaint after the expiry of the product's life is of no consequence to the accused's right of re‑testing because the Central Laboratory has already furnished the authoritative report.
Applying those rules to the two petitions before the Court: the samples in these petitions were tested at the Central Insecticides Laboratory at the outset; accordingly, the delay in filing the complaint (after expiry) was held to be of no consequence for the purposes of Section 24(4) in these specific matters.

Broader implications:

The opinion recognises a genuine conflict between Single Judge decisions (notably United Pesticides on one side and S.K. Khurana on the other) about whether initial Central testing can ever be said to deprive an accused of a right under Section 24(4). Because of these conflicting views the Court has referred two specific questions to the Chief Justice for constitution of an appropriate larger Bench to resolve the points of law (questions reproduced in the opinion).
The opinion does not purport to set a new binding precedent beyond its reasoning; rather it resolves the immediate contentions in the two petitions (on the facts that the Central Laboratory had already tested the relevant samples) and seeks authoritative clarification from a larger Bench on the broader questions posed.

Direct (case‑specific) effect on the parties: the Court concluded that because the samples in the two petitions had been tested at the Central Insecticides Laboratory at the outset, filing the complaints after the products' expiry dates was of no consequence for the statutory right under Section 24(4). The matter was also referred to the Chief Justice for constitution of a larger Bench to settle the wider question of law.

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Mewa Singh v. Prithipal Singh Insecticides .

J.S Sekhon, J.:— Criminal Misc. No. 10833-M-of 1990 and 10836-M of 1990 shall be disposed of by common order as these involve almost the same legal controversy although the factual matrix is different. In Criminal Misc. No. 10836-M of 1990 manufacturer through its Regional Manager Page: 95Sh. Mewa Singh seeks quashment of the complaint for offence under Section 3(k)(i) read with Sections 17, 18, 29 and 33 of the Insecticides Act, 1968 on various grounds. In this case Sh. Pirthipal Singh Insecticides Inspector Sultanpur Lodhi District Kapurthala has taken the sample of Penvel brand Feavelerate insecticide bearing batch No. 579 on 23-1-1987 From M/s. Garg Sales Corporation, Mandi Road, Sultanpur Lodhi dealing in the sale of pesticides. The Inspector selected there packets of Penvel brand Fenelerate insecticide batch No. 579 for purpose of Sampling in the presence of Sh. Naveen Kumar, incharge of the business of the said firm. Shri Naveen Kumar has signed the relevant forms as sole proprietor of the firm. Each container of sample was sealed in the presence of Sh. Naveen Kumar has the relevant forms as sole proprietor of the presence of of Sh. Naveen Kumar accused. One of the sample was handed over to Sh. Naveen Kumar, the other two were sent to the Chief Agriculture Officer, Kapurthala for getting the sample to be analysed and other to be retained in the said office. Later on one sample was sent to the Director, Central Plant Protection Training Instituted, Rajinder Nagar, Hyderabad a duly notified branch of Central Insecticide Laboratory. The Director, Central Insecticides Laboratory on testing of the sample opined that the sample does not conform to the relevant ISI specifications as per manufacturers method in its active ingredient content and thus declared it misbrandcd as per provisions of Section 3(k)(i) of the Insecticide Act, 1968. The insecticide was supplied to the dealer by M/s. Modern Plant Production Centre, near Adda Bastian, GT. Road Jalandhar City and it was manufactured by M/s. Searle (India) Limited having its head office at Bombay. Thus, after obtaining the necessary sanction from the Joint Director of Agriculture, Punjab under Section 3(1) of the Act, a complaint for offences under Section 3(k)(i), 17, 18, 29 and 33 of the Act read with Rule 27(5) of the Insecticide Rules 1971 was filed against the dealer, distributor and manufacturer before Sub Divisional Judicial Magistrate, Sultanpur Lodhi. The Sub Divisional Judicial Magistrate, Sultanpur Lodhi issued summons to the petitioner which were received on 21.11.1989 The manufacturer seeks the quashment of complaint inter-alia on the ground that the complaint was filed on 10-7-1989 much after the expiry date of the insecticide i e. November, 1987 and the process was served upon the petitioners in November, 1989. It has resulted in loss of valuable right of manufacturer to get the sample retested from the Central Laboratory. It was also maintained that there was no standard of toxicity prescribed by any authority under the Insecticides Act, and thus the report of analyst that the sample contained higher active ingredient is of no consequence. Reliance in this regard was placed in a decision in Madan Dangi v. State of Punjab 1987 Criminal Law Journal 138. The objection regarding the loss of valuable right to get the sample retested from the Central Laboratory under Section 24(4) of the Act due to not getting the sample tested from the State Analyst was also taken. The receipt of the Insecticides analysis beyond the period of 60 days under Section 24(i) of the Act by the Insecticide Inspector was also stressed. The non service of the report of the Insecticides Laboratory Analyst on the person from whom the sample was drawn within the stipulated period was also taken. It was also maintained that the provisions of Section 24 does not require the serving of Analyst report upon the manufacturer and if the dealer from whom the sample of insecticides taken does not challenge it the report becomes final. Thus, vires of Section 24 of the Act have been challenged on the ground of being violative of Rules of natural justice. The analogous provisions of Food Adulteration Act were referred in connection with supplying the report of of the Public Analyst to the dealer from whom the sample was taken as Page: 96well as to the person who supplied the article and it is provided that either or both of them to challenge the report within 10 days. Provisions of Sections 18-A, 23 and 25 of the Drugs and Cosmetics Act providing for supplying of copy of the report to the manufacturer was also stressed in this regard. The validity of consent for prosecution under Section 31(1) was also assailed on the ground of non application of the mind as well as on the ground that it was accused after the expiry of shelf life of the product. The decision of the apex Court in A.K Roy v. State of Punjab (1986) 4 SCC 326 : AIR 1986 Supreme Court 2160, in the matter of sanction was also referred in this regard.

2. I have heard the learned counsel for the parties besides perusine the record.

3. In Criminal Misc. No. 10836-M of 1990 the sample of Fenvelrate 20% W.W was taken on 23.1.1987 The insecticide was manufactured in December, 1985 and its expiry was in November, 1987 while the complaint was filed on 10.7.1989, i.e much after the expiry of the shelf of the insecticide.

4. In Criminal Misc. No. 10833-M of 1990, the sample of Fenvelrate was taken on 19-1-88. The label on the container revealed that it was manufactured in August, 1987 and the date of expiry was July 1989 whereas the complaint was filed on 11-7-89 and the service of the summons on the petitioners was effected on or about 31-5-1990 requiring them to attend the Court on 14-6-1990. Thus it can be well said that the petitioners were made aware of their prosecution of the offences under the Act much after the expiry of the period of the life of the insecticide as in this case also the sample was got tested at the outset from the Central Insecticides Laboratory, Faridabad.

5. Thus, the crucial controversy involved in these petitioners is:—

(i) Whether the filing of complaint after the expiry of the shelf life of the insecticide debars the accused petitioner of his valuable right to get the sample retested from the Central Insecticide Laboratory under sub-section (4) of Section 24 of the Insecticides; and

(ii) Whether getting the sample tested from the Central Insecticides Laboratory and not getting it tested from the State Laboratory would also amount to debarring the accused petitioner of his valuable right under sub section (4) of Section 24 of the Act.

6. The provisions of Section 24 read as under:—

24. Report of Insecticide Analyst:—

(1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-section (6) of section 22, shall, within a period of sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form.

(2) The insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample.

(3) 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 sample are pending that he intends to adduce evidence Page: 97in contraversion 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 controversion of the Insecticide Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complaint or of the accused, cause the sample of the insecticide 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.

(5) The cost of a test or analysis made by the Central Insecticides Laboratory under sub-section(4) shall be paid by the complainant or the accused, as the Court shall direct.

7. The provisions of Sub-section(4) of Section 24 leaves no doubt, that if the sample is got tested or analysed in the Central Insecticides Laboratory, the person from whom some sample has been taken is not entitled to claim re-analysis of the sample through the Court but if it is tested by Insecticide Analyst a discretion has been given to the Court to get the sample of insecticides re-tested suo moto or on the request of either of the accused or complainant from the Central Insecticides Laboratory and such report shall be conclusive evidence of the facts stated therein. In Sub-section(3), it is provided that the report of the Insecticide Analyst shall be evidence of the facts stated therein, and such evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample has been taken has within 28 days of the receipt of the copy of the report notified in writing to the Insecticide Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. Thus a combined reading of the provisions of both the sub-sections leave no doubt that the person from whom the sample of insecticides has been taken can claim its retesting from the Central Insecticides Laboratory, if the proceedings in respect of the sample tested by Insecticide Analyst are pending in any Court. Consequently, if the complaint has been filed in a Court after the expiry of the shelf life of insecticides then it will be taken that the accused has been debarred of his valuable right to get the sample retested, because due to the expiry of the life of the insecticides, its ingredients are bound to deteriorate or become less active. In the cases the complaints were filed much after the expiry of the shelf life of the insecticides. There is no provision under the Insecticides Act that the vendor can get the sample retested before the launching of the prosecution against him except in sub-section(3) he can challenge the report of Insecticide Analyst. The mere factum that on receipt of the report regarding the misbranding of the insecticide, a show cause notice was served upon the dealer and that the dealer in his reply did not demand any re analysis is of ro consequence, especially when he can apply to the Court under sub-section (3) and (4) of Section 24 of the Act to get the sample retested on the written requisition of the dealer. On the other hand, the provisions of this Section simply provide that in case such written requisition by the dealer, the report shall not be conclusive evidence of the facts contained therein. Thus service of notice regarding the sample being misbranded before the date of expiry of the life of the Insecticide is of no consequence. The observations of the apex Court in Municipal Corporation Of Delhi v. Ghisa Ram, AIR 1967 Supreme Court 970 that due to inordinate delay in Page: 98instituting the prosecution, a valuable right conferred by Section 13(2) of the Prevention of Food Adulteration Act, 1954, on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, is taken away, are aptly applicable to such like contingency. In that case, the sample of curd of Cow's milk was found adulterated by the Analyst but due to delay in filing the complaint, the sample of the curd supplied to the vendor and sent to the Director, Central Food Laboratory on the written request of the latter was found unfit for analysis being highly decomposed. Under these circumstances, the Apex Court observed in para 7 of the judgment as under:—

“It appears to us that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that the right will not be denied to him. The right is a valuable one because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence he should be able to have the sample kept in his charge-analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to upheld his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.”

8. Following the above dictum of apex Court, the learned Single Judges of this Court in H. Lange v. The State of Punjab 1986 (1) CLR 383, in S.K Ahooja v. State of Haryana 1989 (1) RCR 596, in Bhai Manjit Singh Managing Director, Montari Industries Ltd. v. The State of Punjab 1992 (1) RCR 244, observed that due to the filing of the complaint after the expiry date of different insecticide in those cases had resulted in debarring the accused of exercising his valuable right under Section 24(4) of the Act of getting the samples of insecticides re-tested from the Central Insecticides Laboratory, quashed the proceedings.

9. Consequently, there is no escape but to hold that in cases where the sample of insecticides was first got tested from the insecticides analyst, the filing of the complaint after the expiry of the life of the insecticide would result in debarring the accused of his valuable of getting the sample re-tested from the Central Insecticides Laboratory as provided under sub-section (4) of Section 24.

10. The question then arises whether in those cases where the sample of insecticide was got tested or analysed at the outset from the Central Insecticides Laboratory, the filing of complaint after the expiry of the life of the insecticide would result in debarring the accused of such valuable right. In this regard the provisions of sub-section (4) of Section 24 reproduced above clearly show that on the request of the complaint or the accused or the Court on its own motion may get the sample retested from the Central Insecticides Laboratory unless the sample has already been tested by or analysed in the Central Insecticides Laboratory. The above referred dictate of the legislature is logical because if the sample had already been tested by the Central Insecticides Laboratory, there is no sense in getting it re-tested from the same laboratory. In the case in hand, the Page: 99sample was got directly tested from the Central Insecticides Laboratory, Faridabad because the State Insecticides Laboratory, Ludhiana could not test this insecticide due to lack of facilities. Consequently, in this case, the filing of the case much after the period of expiry of the life of the insecticide is of no consequence.

11. It is note worthy that in Municipal Corporation Delhi v. Ghisa Ram (supra) before the Supreme Court, the sample of curd was got tested from the Public Analyst and thereafter on the application of the accused, ??? other sample was sent for testing to the Director, Central Food Laboratory, under the provisions of Section 13(2) of the Prevention of Food A Iteration Act, 1954, but it was found unfit for analysis. Thus that ??? is not the relevant authority on the point where at the outset the sample was got tested from the Central Insecticides Laboratory.

12. In H. Lange's case (supra) although the sample of insecticide was got tested at the outset from the Central Insecticides Laboratory, Hyderabad. Yet the import of the provision of sub-section 4) of Section 24 providing retesting of the sample from the Central Insecticides Laboratory only in those cases where the sample was earlier tested by the State Testing Laboratory was not pertinently brought to the notice of the learned Single Judge or discussed. Similarly, in S.K Ahooja's case (supra), the sample of insecticide was got tested from the Central Insecticides Laboratory, Faridabad at the outset, but this aspect of the provisions of sub-section (4) of Section 24 of the Act was not brought to the notice of the learned Single Judge or discussed.

13. This controversy arose in United Pesticides v. State of Punjab 1992 (1) RCR 678 before the learned Single Bench of this Court and in para 7 of the judgment it was observed as under:—

“It was submitted before me that in the present case respondent No. 1 by sending the sample for analysis to the Central Insecticides Laboratory deprived the petitioners of their valuable right to out the report of the Laboratory and as such the complaint was liable to be quashed. This contention of the learned counsel is quite valid. Under the provisions of the Act the sample taken by the Insecticides Inspector is to be a sent for analysis to the Insecticide Analyst and not to the Central Insecticides Laboratory. Section 16 of the Act relates to the establishment of Central Insecticides Laboratory by the Central Government under the control of a Director to be appointed by the Central Government to carry out the functions entrusted to it by or under the Act. Section 19 of the Act provides:—

“The Central Government or a State Government may, by notification in the official gazette, appoint persons in such number as it thinks fit and possessing such technical and other qualifications as may be prescribed to be Insecticide Analyst for such areas and in respect of such insecticides or class of insecticides as may be specified in the notification.”

14. While sitting in Single Bench in Criminal Misc. No. 9274-M of S.K Khurana v. State of Punjab decided on 27-3-1992, I have taken the view contrary to the above view in United Pesticides' case (supra) that no valuable right of the accused is taken away by getting the sample tested at the outset from the Central Insecticides Laboratory. The above referred view is supported from the fact that the report of the Director, Central Insecticides Laboratory has an over-riding effect of the report of Insecticide Analyst as per provisions of sub-section (4) of Section 24 Page: 100and thus if the sample is directly got tested from the Central Insecticides Laboratory, will not result in any prejudice of the accused or debarring him from exercise his valuable right, especially when the State Laboratory has not the requisite facility for testing the contents of Penvel brand Fenvelerate insecticide.

15. This controversy is likely to crop up in number of cases in view of the contradictory opinions by the two Single Benches and is of vital importance. Consequently, it is considered fit case where the decision of the larger bench is called for on the following questions:—

Q. 1) Whether getting a sample of insecticide at the outset tested from the Central Insecticides Laboratory without getting it tested from the State Insecticide Analyst in cases where no such facilities exist in the State Insecticide Laboratory had debarred the accused from his valuable right provided under sub-section (4) of Section 24 of the Act in getting the sample retested from the Central Insecticides Laboratory?

Q. 2) Whether getting the sample tested from the Central Insecticides Laboratory without getting it first tested from the State Insecticide Analyst where the facilities of the testing of particular insecticide are available would result in debarring the accused of the valuable right of getting the sample retested provided under sub-section (4) of Section 24 of the Act.

16. The papers be laid before the Hon'ble Chief Justice for constituting an appropriate bench.

Mewa Singh v. Prithipal Singh Insecticides .

Summary of the Opinion by J.S. Sekhon, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Manufacturer / Petitioner (summary of arguments, as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mewa Singh v. Prithipal Singh Insecticides .

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