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Case Number

Criminal Misc. Nos. 8903-M of 1988 and 4300 and 3924 of 1969

Attorney(S)

Sidharath Sarup
Mr A.C. Jain

Judges

S.S Grewal, J.

Acts

Section 16(1)(a)(ii) read with S. 9 of the Prevention of Food Adulteration Act, 1954.6.
SECTION 29 INSECTICIDES ACT 1968
Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred
Rule 27 (5) of the Insecticides Rules, 1971.
Sub-section (4) of Section 24,
Act under Section 20(1)
sub-section 2 of S. 24

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Smart Summary

Judgment Summary — S.S. Grewal, J.

Factual and Procedural Background

This petition under Section 482 of the Code of Criminal Procedure, 1973 seeks quashment of a complaint (Annexure P/1) filed under Section 29 of the Insecticides Act, 1968 and consequent proceedings, including a summoning order dated 27 September 1988 passed by the Chief Judicial Magistrate, Karnal.

The complaint was filed against M/s Surindera Pesticides (the licensed dealer, represented by its partner Varinder Kumar) and M/s Jai Chemicals, Faridabad and its partners A.L. Batra and D.V. Batra (the manufacturers). Relevant facts as set out in the complaint: on 22 August 1987 an Insecticide Inspector (Shri Ram Pal Singh) took a sample of Benzene Hexachloride (B.H.C.) 10% dust (registered concentration 1.3% Gamma isomer) from the licensed dealer's premises in the presence of the dealer's representative. The sample was divided into three sealed portions; one portion was sent to the Senior Analyst, Quality Control (Insecticides) Laboratory, Karnal. By letter No. 779 dated 30 September 1987 the Senior Analyst reported the sample as "misbranded" and stated there was a variation in the Gamma isomer of 0.2% from I.C.I. specification of 1.3%. The analytical report and a show cause notice were sent to the licensed dealer, and after obtaining consent the complaint was filed against both manufacturer and dealer.

Legal Issues Presented

Whether the Assistant Plant Protection Officer (the complainant) was legally empowered to file the complaint or to launch prosecution under Section 31 of the Insecticides Act on the basis of the Director of Agriculture, Haryana's consent and in light of the delegation framework relied upon by the petitioner.
Whether the manufacturer (petitioner) was deprived of a valuable right under the Act by not being supplied with (a) a copy of the Analyst's report and/or (b) a sample or opportunity to have the sample analysed at the Central Insecticides Laboratory under the provisions of Section 24 (and related provisions), and whether such procedural defects materially prejudiced the manufacturer's defence.

Arguments of the Parties

Petitioner's (Manufacturer's) Arguments

The Assistant Plant Protection Officer was not legally empowered to file the complaint or to launch prosecution under Section 31 of the Act because the State Government had delegated power to the Director of Agriculture (vide notification dated 24 April 1977), and the Director was not empowered to further delegate those powers to the present complainant.
The manufacturer was not provided with a sample of the insecticide taken from the licensed dealer nor supplied with a copy of the Senior Analyst's report, and no show cause notice was issued to the manufacturer prior to filing the complaint; this deprived the manufacturer of a valuable right under Section 24(3) to get the sample analysed by the Central Insecticides Laboratory, which could supersede the Analyst's report.
Reliance was placed on A.K. Roy v. State of Punjab and related authorities to support the submission that delegation of prosecutorial power was unlawful in comparable circumstances.

Respondent's Arguments

The opinion states that the learned counsel for the parties were heard, but it does not set out a detailed account of the respondent's specific legal arguments in opposition to the petition.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A.K. Roy v. State of Punjab, 1986 (2) RCR 569 (1986 (2) Chandigarh Law Report ...)	Held that a notification purporting to delegate power to institute prosecutions under the Prevention of Food Adulteration Act to a Food Inspector was ultra vires; Food Inspector was not competent to lodge complaint in that case.	The court treated this authority as distinguishable on the facts and not applicable to the present case; it was relied on by the petitioner but rejected as controlling here.
Shakti Chand v. The State of Punjab, 1988 (1) PFA Cases 131	Followed A.K. Roy: prosecution based on a complaint by a Food Inspector authorised by the Director was held to have been filed by an incompetent person who had no authority.	The court found this Single Bench authority distinguishable and not applicable to the facts before it.
Y.R.S. Rao v. Deputy Director of Agriculture, 1980 Cr. LJ 1934	Explained that persons from whom the sample is not taken cannot insist on being given a sample and cannot complain of discrimination vis-à-vis the person from whom the sample is drawn; also that the Central Insecticides Laboratory report under s.24(4) displaces the Analyst's report under s.24(3), and all persons sought to be prosecuted have an opportunity to rebut the Analyst's report by requiring the sample deposited with the Magistrate to be sent to the Central Laboratory.	The court relied on this authority to describe the right to rebut an Analyst's report and to explain the procedures available to persons (including manufacturers) not from whom the sample was taken; it also used the authority to assess whether the manufacturer's defence was materially prejudiced by procedural omissions in the present case.
H. Lange v. The State of Punjab, 1986 (1) RCR 176 : 1986 (1) Chandigarh Law Reporter 383	Observed that under sub-section 2 of s.24 there is no obligation on the Insecticide Inspector to supply a copy of the Analyst's report to the manufacturer, but if the manufacturer is sought to be prosecuted there is no reason why a copy of the report should not be supplied to him.	The court cited this authority to support the proposition that, in the interests of justice, a person sought to be prosecuted should be supplied a copy of the Analyst's report; the absence of such supply in the present matter weighed in favour of finding prejudice to the manufacturer.
Tarlok Singh v. State of Punjab, 1991 (1) RCR 194 : 1991 (1) Chandigarh Law Reporter 376	Expressed a view consistent with the above: in proceedings under the Insecticides Act, the ends of justice may require that a person to be prosecuted be supplied with the Analyst's report so as to enable rebuttal.	The court cited this Single Bench authority as further support for the position that the manufacturer should have been supplied a copy of the report when being prosecuted, reinforcing the conclusion of prejudice caused by the failure to provide such material.

Court's Reasoning and Analysis

The court addressed the matters in two principal strands: (A) competence to file the complaint, and (B) the procedural entitlement of the manufacturer to the Analyst's report and opportunity to seek Central Laboratory testing.

(A) Competence to File the Complaint

The petitioner relied on the contention that the Assistant Plant Protection Officer was not authorised to file prosecution since the State had delegated the power to the Director of Agriculture (notification dated 24 April 1977) and the Director could not further delegate. Authorities were cited (A.K. Roy and Shakti Chand) to show invalid delegation in analogous contexts.
The court examined the statutory framework and the facts and observed that the Director of Agriculture had given consent for launching prosecution in the instant case to the Assistant Plant Protection Officer, Karnal.
Critically, the court noted that the Assistant Plant Protection Officer had been authorised with the powers of an Insecticides Inspector in 1986 and, further, that Rule 27(5) of the Insecticides Rules, 1971 conferred powers to institute such proceedings. On that basis the court concluded that the complaint was not filed by an incompetent person and rejected the petitioner's delegation objection.

(B) Procedural Entitlement and Prejudice to the Manufacturer

The court considered the petitioner's submission that the manufacturer was neither supplied with the sample taken from the dealer nor furnished with a copy of the Analyst's report, and therefore was denied the right under Section 24(3) to have the sample analysed by the Central Insecticides Laboratory (whose report would supersede the Analyst's report under s.24(4)).
The court analysed authorities (notably Y.R.S. Rao) explaining that while persons from whom the sample is not taken cannot insist on being given a physical sample, all persons sought to be prosecuted on the basis of an Analyst's report are afforded an opportunity to rebut that report — either by having the sample in their possession analysed (if the sample was taken from them) or by requiring the Court to send the sample deposited with it for analysis by the Central Laboratory.
The court relied on H. Lange and Tarlok Singh to underline that, even if subsection 2 of Section 24 imposes no formal obligation on the Inspector to supply a copy of the Analyst's report to a manufacturer, where the manufacturer is sought to be prosecuted there are compelling reasons in the interests of justice to supply such a copy so that the manufacturer can mount an effective defence.
Applying these principles to the facts, the court observed that the complaint was filed nearly a year after taking of the sample, and that there was no specific allegation in the complaint that a copy of the Analyst's report had been sent to the manufacturer. The court concluded this omission materially affected the manufacturer's ability to exercise the statutory right to seek Central Laboratory analysis and to rebut the Analyst's report, thereby prejudicing the manufacturer's defence.

Holding and Implications

Core Ruling: The impugned complaint (Annexure P/1) and consequent proceedings, including the summoning order, are quashed insofar as they relate to the manufacturer.

Consequences and implications:

The quashment relieves the manufacturer (M/s Jai Chemicals and its partners) of the prosecution and related proceedings instituted on the basis of the Analyst's report as they stood before this Court.
The proceedings and trial against the licensed dealer (M/s Surindera Pesticides and its representative) were not quashed; the trial court is directed to proceed against the licensed dealer expeditiously according to law.
The opinion grounds the quashment on procedural prejudice to the manufacturer arising from the failure to provide the material (a copy of the Analyst's report and the practical opportunity to obtain Central Laboratory analysis) necessary to exercise the statutory right to rebut; the decision is focussed on those facts and procedures and does not purport to lay down a broader novel principle of law beyond the application of the cited authorities.

No additional conclusions, findings or implications have been added beyond those expressly stated in the provided opinion.

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A.L Batra v. State Of Haryana .

S.S Grewal, J.:— This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code) relates to quashment of complaint, Annexure P/s filed under Section 29 of the Insecticides Act, 1968 (hereinafter referred to as the Act) against M/s. Surindera Pesticides, who holds licence for stock and sale of insecticides through its partner Varinder Kumar (hereinafter referred to as the licenced dealer) as well against M/s. Jai Chemicals, Fridabad and its partners A.L Batra and D.V Batra, (hereinafter referred to as the manufacturers) and consequent proceedings taken thereunder, including, summoning order dated 27th of September, 1988 passed by Chief Judicial Magistrate, Karnal.

2. In brief facts relevant for the disposal of this petition as emerge from complaint Annexure P/1 are that on 22-8-1987. Shri Ram Pal Singh, Inspecticides Inspector took sample of Benzene Hexa Chloride (B.H.C) 10 per cent dust (having concentration of 1.3 per cent Gamma Isomer from, the premises of the licenced dealer in the presence of its representative Bhim Singh, Technical Operator. The aforesaid pesticides were manufactured by the manufacturer. The sample so taken was divided into three portions, each portion was separately sealed. One such sample was sent for analysis to Senior Analyst Quality Control (Insecticides,) Laboratory, Karnal. After Page: 107analysis the said sample was found misbranded, as per report of the Senior Analyst conveyed to the complainant through letter No. 779 dated 30th of September, 1987. The report revealed that there was variation of the technical contents (Gama isomer) by 0.2 per cent from I.C.I specification of 1.3 per cent. Copy of the analysis report and show cause notice was sent to the licenced dealer, and after obtaining consent the impugned complaint has been filed both against the manufacturer as well as the licenced dealer.

3. The learned counsel for the parties were heard.

4. The first point raised by the learned counsel for the petitioner is that the Assistant Plant Protection Officer is not legally impowered to file the complaint, or launch prosecution under Section 31 of the Act on the basis of the consent given by Director of Agriculture Haryana. This argument is based mainly on the ground that the State Government had delegated powers for filing the complaint to the Director Agriculture Haryana, vide Government notification dated 24th April, 1977 and the Director Agriculture was not empowered to further delegate those powers to the present complainant.

5. Reliance in this respect was placed on authority of the Apex Court in case A.K Roy v. State of Punjab, 1986 (2) Recent Criminal Reports 569 : 1986 (2) Chandigarh Law Report ???97 wherein it was held that the impugned notification dated September 7, 1972 issued by the food (Health) Authority must be declared as ultra vires the Food (Health) Authority, in so far as he purported to delegate his powers to institute prosecutions for an offence under the Act under Section 20(1) to the Food Inspector, Faridkot. It must accordingly follow that the Food Inspector, Faridkot was not competent to lodge the complaint against the appellants for having committed an offence punishable under Section 16(1)(a)(ii) read with S. 9 of the Prevention of Food Adulteration Act, 1954.

6. The authority in A.K Roy's (supra) was followed in Single Bench authority of this Court in Shakti Chand v. The State of Punjab, 1988 (1) Prevention of Food Adulteration Cases 131 and it was held that the prosecution of the petitioner was based on a complaint filed by the Food Inspector, who was authorised by the Director to file the same. The impugned complaint has, therefore, been filed by an incompetent person who had no authority to do so.

7. Both these authorities which deal with the scope of powers of the Food Inspector to launch prosecution are not applicable to the facts and circumstances of the case in hand and are clearly distinguishable.

8. It is true that under Section 31 of the Act no prosecution for an offence under the said Act could be instituted except by, or with the written consent of the State Govt., or a person authorised in this behalf by the State Government. However, the fact remains that the Director of Agriculture Haryana, who was competent to give consent for launching prosecution vide notification No. 2700-Agri-1(2)-77/7150 dated 21-4-77 gave his consent for launching prosecution in the instant case to the Assistant Plant Protection Officer, Karnal. Besides, the present complaint has been filed much after authorisation of Assistant Plant Protection Officer, Karnal, with the powers of insecticides Inspector in the year 1986 whereas the latter himself had powers to institute such proceedings under Rule 27 (5) of the Insecticides Rules, 1971. Thus it cannot be held in the instant case that the impugned complaint has been filed to by incompetent person. The argument advanced by the counsel for the petitioner is hardly tenable in the circumstances of the case.

9. It was further submitted that the petitioner who is a manufacturer was neither provided with the sample of Insecticides taken from the licensed Page: 108dealer in the instant case, nor the copy of the report of the Insecticides Analyst was supplied to the manufacturer. No show cause notice was issued to the manufacturer before filing the impugned complaint in the Court of Chief Judicial Magistrate on 27-9-88 against the petitioner, who too had a valuable right under Section 24(3) of the Act to get the sample analysed from the Central Insecticides Laboratory, which would supersede the report of Analyst.

10. Persons from whom the sample, is not taken cannot insist upon being given a sample and cannot complain of any discrimination vis-a-vis the person from whom the sample is drawn in view of the Division Bench authority of Andhra Pradesh High Court in Y.R.S Rao v. Deputy Director of Agriculture, 1980 Criminal Law Journal 1934. Thus mere fact that no sample of Insecticides taken in the instant case from the dealer was supplied to the manufacturer, would not per se be sufficient to hold that the manufacturer had been deprived of valuable right to get such sample analysed from the Central Insecticides Laboratory. However, the fact remains that there is no specific allegation in the impugned complaint that the copy of the report of Insecticides Analyst was sent to the manufacturer against whom the pro-section has been launched on the basis of the said report. In the impugned complaint, Annexure P/1 it is merely mentioned that Analyst report and show cause notice was sent to M/s. Surindera Pesticides-licenced dealer from whom the sample was taken for analysis. The manufacturer in the instant case would thus be materially prejudiced in his defence because of following defective procedure.

11. I find support on this point from the authority in Y.R.S Rao's case (supra) which reveals that the report of the test of analysis of the Central Insecticides Laboratory made under Sub-section (4) of Section 24, displaces the report of the Analyst referred to in sub-section (3) of Section 24. This opportunity to rebut the report is provided under the Act to all persons (including the manufacturer) who are sought to be prosecuted on the basis of the Insecticides Analyst's report with regard to the sample of insecticides taken by the Insecticide Inspector under Section 21 of the Act. While the report may be conclusive of the facts stated therein, both against the person from whom the sample is drawn, as well as the persons who are sought to be prosecuted on the basis of that report both have an opportunity to rebut the report of the Insecticides Analyst in the case of the former by sending the sample in the possession of the person, from whom the sample is drawn and in other cases by sending the sample deposited with the Magistrate, for analysis by and report of the Central Insecticides Laboratory. Thus defence is open to all those that are likely to be prosecuted on the strength of an Analyst's report in respect of a sample not taken from them, to question its correctness by requiring the Court to send the sample deposited with it for analysis by the Central Laboratory. There is no discrimination between the person from whom the sample is drawn, and other persons who are sought to be proceeded against on the basis of the same report, as both are given an opportunity of rebutting the correctness of the Analyst's Report. The inference against the person from whom the sample is drawn may be stronger, and, the defences open to him may be different or fewer than the defences that may be open to person other than those from whom the samples are drawn but are sought to be made liable. That apart these pesons fall into two differrent categories. Other persons front whom the sample is not taken cannot insist upon being given a sample and cannot complain of any discrimination vis-a-vis the person from whom the sample is drawn.

12. Similar is the view expressed in Single Bench authority of this Court in H. Lange v. The State of Punjab, 1986 (1) Recent Criminal Reports 176 : Page: 1091986 (1) Chandigarh Law Reporter 383 wherein it was observed that under sub-section 2 of S. 24 there is no obligation on the Insecticide Inspector to supply a copy of the report of the Analyst to the manufacturer of the Insecticide, but if the manufacturer of insecticides is sought to be prosecuted, there is no reason why a copy of the report should not be supplied to him.

13. The object of making the provision for delivery of the copy of the report is to give an opportunity to the person concerned to controvert the report in case he is prosecuted. Therefore, irrespective of the provision contained in sub-section (2) the ends of justice demand that the person who is sought to be prosecuted must be supplied with a copy of the report.

14. To the same effect is another Single Bench authority of this Court in Tarlok Singh v. State of Punjab, 1991 (1) Recent Criminal Reports 194 : 1991 (1) Chandigarh Law Report 376.

15. In the present case the impugned complaint was filed almost after about a year of the taking of the sample whereby valuable right of the manufacturer to rebut the correctness of the report of the Insecticide Analyst by getting the sample of insecticides produced before the Magistrate, under Sub Section (f) of section 22 of the Act to be sent to the Central Insecticide Laboratory under sub-section (4) of Section 24 of the Act has been materially effected.

16. For the forgoing reasons, the impugned complaint Annexure P/1 and consequent proceedings including summoning order as far as manufacturer is concerned cannot be legally sustained and the same are hereby quashed qua manufacturer only. However, the trial Court would proceed against the licenced dealer expeditiously according to law.

A.L Batra v. State Of Haryana .

Judgment Summary — S.S. Grewal, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's (Manufacturer's) Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

A.L Batra v. State Of Haryana .

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