JUDGMENT
Kiran Anand Lall, J.
1. Petitioner No.3 is a company incorporated under the Companies Act. It is engaged in the manufacturing of Insecticides and Pesticides including Butachlor 50% EC. Petitioner NO.1 is its marketing incharge whereas petitoner No. 2 is its director. It is alleged that on 17.6.1999, the Insecticide Inspector took a sample of Butachlor 50% EC bearing batch No. 418, from the premises of M/s Goyal Beej Bhandar, Palwal. The date of manufacturing of this insecticide was May, 1998 and that of its expiry was April, 2000. The sample taken by the Inspector was sent to the Sent Analyst, Quality Control Laboratory (Insecticides), Karnal. After analysis, the sample was found misbranded as its active ingredient content was found to be 41.94% vide report Annexure P-1.
2. Copy of the test report along with show cause notice was sent to the petitioners vide letter No. 4204-05 dated 20.8-1999 which was received by them on 30.8.1999. In reply to the show cause notice, they gave a detailed reply (Annexure P-2) vide letter No. HPN/99/157 dated 20.9.1999 contesting the correctness of the report of the analyst. They also made a specific request for sending the second part of the sample for re-analysis to the Central insecticides Laboratory as per the provisions contained in Section 24(3) and Section 24(4) of the Act. It was also mentioned in the reply that another sample of the same batch of Butachlor had been re-tested by the Central Insecticides Laboratory, Faridabad, and it was found to be conforming to the ISI specifications, as per report dated 16.3.1999 (Annexure P3). In spite of this, the Insecticide Inspector did not sen the sample in question for re-analysis to the Central Insecticides Laboratory, and instead, filed a complaint (Annexure P-4) against the petitioners in the court of Chief Judicial Magistrate, Faridabad, on 25.1.2000. By the time, the petitioners were ordered to be summoned by the court, shelf life of the sample had already expired and there was no time left with them to apply to the court for sending the second sample for re-analysis. They were thus deprived of their valuable right of getting the second part of the sample re-analysed from the Central Insecticides Laboratory under Section 24 of the Act without any fault on their part, and, thereby, they were prejudiced in their defence. Besides, it was also pleaded that their had been non-compliance of Section 33 of the Act as there was no allegation even that petitioners No. 1 and 2 are the incharge and are responsible for the conduct of business of the company.
3. On the basis of above averments, it was prayed that complaint, Annexure P-4, as well as the consequent proceedings arising out of it be quashed.
4. In the written reply filed on behalf of the respondent-State, it was pleaded that the petitioners were duly informed that they should apply for re-test of the sample to the court of Chief Judicial Magistrate, Faridabad. Besides, summons issued by the Chief Judicial Magistrate, Faridabad, was sent to the petitioners through registered post letter No. 665 dated 28.2.2000, and as such, they had very well become aware of the filing of complaint by the respondent in the court of Chief Judicial Magistrate, Faridabad. Still, they neither appeared before the court nor made any request to it for re-test of the sample. It could not, therefore, be said that they were deprived of the right provided under Section 24(4) of the Act. Besides, it was pleaded that petitioners No.1 and 2 are responsible for the conduct of business of the company, and as such, complaint was rightly filed against them.
5. Shri Ravinder Chopru, learned counsel for the petitioners, contended that the complaint was liable to be quashed on the sole ground that though the petitioners had made a specific request to the Insecticide Inspector for re-testing of the sample by the Central Insecticides Laboratory, Faridabad, the Insecticide Inspector (complainant) did not get the needful done, and by the time they were ordered to be summoned by the court, shelf-life of the sample had already expired and there was no time left with them to apply to the court for sending the second part of the sample for re-analysis.
6. On the other hand, Shri Vijay Dahiya, learned Assistant Advocate General, contended that petitioners were well aware of the fact that the shelf-life of the product was to expire in April, 2000. Besides, they had been duly informed also that they should appear in the court of Chief Judicial Magistrate for getting the second part of the sample re-tested but they intentionally did not appear in court for getting the needful done and as such, they cannot be said to have been deprived of their right of getting the second part of the sample tested from the Central Insecticides Laboratory.
7. It would be useful to reproduce the relevant portion of letter dated 20.9.1999 (Annexure P-2) addressed by the petitioners to the Deputy Director of Agriculture, Department of Agriculture, Faridabad (Haryana), in reply to latter’s letter No. 4204-05 dated 20.8.1999 vide which copy of the test report of the Senior Analyst. Quality Control Laboratory (Insecticides), State Agriculture Department, Haryana was sent to them:-
1. x x x x x
2. The alleged report of Senior Analyst, Quality Control Laboratory (Insecticides), Karnal, Haryana is not acceptable to us. On perusal of the test report, it is found that no test has been carried out. Thus the report submitted by you along with the above referred letter is null and void and of no consequences.
3.x x x x x
4. ….. and request you to send the second sample to the Central Insecticides Laboratory for re-testing as per the provisions laid down under Section 24(3) and 24(4) of the Insecticides Act, 1968 and rules made thereunder.
xxxxx
8. IT is clear from the above reproduced contents that on receipt of copy of the test report declaring the sample as mis-branded, a specific request was made by the petitioners for re-analysis of the sample, as envisaged under Section 24(3) of the Act. But, admittedly, this request was not acceded to. The Deputy Director of Agriculture, Faridabad, instead sent reply, Annexure R-1, to the petitioners, intimating that “this office is not ready to send your Butachlore 50% sample for re-testing. So you are advised to appear in CJM Court for re-testing”. It cannot be disputed that by sending such type of reply, the Deputy Director of Agriculture had clearly dis-abled the petitioners from exercising their right under Section 24(3) of the Act. The provisions contained in Section 24(3) and (4) of the Act are as under:-
24(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 in controversion 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 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 Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein”.
9. A perusal of the above provisions reveals that it is the report of the Central Insecticides Laboratory (and not of Quality Control Laboratory) which is conclusive evidence of the facts stated therein. But, because of refusal on the part of the Deputy Director of Agriculture to send the sample for re-analysis, the petitioners in the case in handwere deprived of obtaining this conclusive evidence in the form of report of the Central Insecticide Laboratory, with regard to the sample.
10. It was contended by the learned Assistant Advocate General that the complaint was filed in the court of Chief Judicial Magistrate on 25.1.2000. and by that time, the shelf-life of the product had yet not expired. To this, the reply of learned counsel for the petitioners was that this fact would not make any difference because the petitioners did not become aware of the filing of complaint before the expiry of shelf-life of the sample viz April, 2000. He referred to different orders passed by the trial court for issue of summons to the petitioners, as re-produced at pages 4 and 5 of the petition (and 5 and 6 of the paper book). For the sake of convenience, the last order (out of said orders) which is dated 3.3.2000 is reproduced as under:-
“Summons not received back. Now fresh summons be issued under Section 29(3) of the Insecticides Act, 1968 for 26.5.2000 on filing the process fee.
3.3.2000 Sd.. CJM, Faridabad." 11. Thus, it is clearfrom the above order that the petitioners had not received any intimation about the filing of complaint before the expiry of shelf-life of the sample.
12. Faced with the above situation, learned Assistant Advocate General contended that the summons issued by the court on 25.1.2000 for 3.3.2000 were sent by the Deputy Director, Agriculture, Faridabad, to the petitioners on 28.2.2000, and as such, the latter cannot now be heard to say that they did not become aware of the filing of the complaint in court, before the expiry of shelf-life of the product. I am afraid, the respondent cannot be allowed to place reliance on Annexure R-2, in order to fasten the petitioners with the knowledge of complaint having been filed in court against them before the expiry of shelf-life. Reason being that there is no document on record to indicate that the original of Annexure R-2 was, infact, sent by the Deputy Director Agriculture, Faridabad, and if at all it was so sent, the same was received by the petitioners. In any case, the petitioners had already doubted the correctness of the report of the Quality Control Laboratory and had also made a specific request to the Insecticide Inspector for the re-analysis of the sample. Therefore, it had become the bounden duty of the complainant to get the sample re-tested from the Central insecticides Laboratory. But, as is the admitted case, he did not do so.
13. Sub-section (3) of Section 24 of the Act clearly provides that petitioner can ask for re-analysis of the sample by making a request to the Insecticide Inspector or the court. In other words, he has the option to make such a request either to the Inspector or the court. The petitioners, in the case in hand, had made a specific request to the Insecticide Inspector for sending the sample for re testing to the Central Insecticides Laboratory. But, no action in the matter was taken either by the Insecticide Inspector or by any other concerned authority. The petitioners were, thus, clearly deprived of their valuable right of getting the sample re-tested from the Central Insecticides Laboratory, and instead, complaint was filed against them in court.
14. In the light of what has been discussed above, it is held that as the ultimate fate of the case is a foregone conclusion on account of the petitioners having been clearly prejudiced in their defence because they were deprived of their valuable right of getting the sample re-tested from Central Insecticides Laboratory no useful purpose is likely to be served if further proceedings in the complaint are allowed to be continued. Resultantly, the complaint dated 25.1.2000, Annexure P4, is quashed, and so are the further proceedings taken in respect thereof.