JUDGMENT
S.K. Agarwal, J.
1. Petitioner No. 1 is a company holding license under
the Insecticide Act, 1971 for storage and sale of
insecticides and petitioner No. 2 is the director of
petitioner No. 1 company. They filed the writ petition for
quashing of complaint No. 136/97, instituted against them
by the Plant Protection Officer/Licensing Officer,
respondent No. 2, under Section 29(1)(a) read with
Sub-clause (i) of Clause (k) of Section 3 of the
Insecticides Act (hereinafter referred to as the ‘Act’)
read with Rule 27 of the Rules framed under the Act, for
manufacturing, selling and distributing misbranded
Insecticides/Mats. The complaint was also filed against
the Retailer as well as Manufacturers, respondents 3 to 6.
By orders dated 9th April, 2001 passed by Division Bench,
the writ petition was registered as a Crl.M.(Main).
2. Facts in brief are: on 22.9.1995 the Notified
Insecticide Officer, Government of NCT of Delhi visited
shop and sale counter of M/s. Singhla Agencies (respondent
No. 3) and purchased three packets of allethrin 4% WW mats,
each packet containing 30 mats, marked batch No. 51,
manufactured by M/s. Genesis Chempest Pvt. Ltd. (respondent
No. 5) on 7/95 with expiry date of 6/97, and marketed by
petitioner No. 1. The purchase was effected through cash
memo for the purpose of analysis. The purchased mats were
converted into three containers and were duly sealed as
per rules. one packet was handed over to the retailer,
another packet was retained in the office and the third
packet was sent to the Government Analyst for analysis.
The report of the analyst revealed that the
sample/insecticide was misbranded. On receipt of the test
report dated 23.11.95 the retailer was called upon to
explain for selling misbranded insecticides. The retailer
firm, M/s. Singla Agencies, in their reply dated 25.1.1996,
informed that the said mats were purchased by them from
petitioners vide invoice dated 11.9.1995. On 27.5.96
petitioners were called upon to explain and their reply
dated 22.7.1996 was found to be not satisfactory.
3. On the above allegations complaint under Section 29(1)(a)
read with Sub-clause (i) of Clause (k) of Section
3 of the Act and Rule 27 of the Rules framed under the
Act, was filed on 23.9.1997 against petitioners, retailers
as well as manufacturers. The learned trial court took
cognizance and summoned the accused persons. Petitioners
remained unserved for quite some time. Accused No. 1
M/s. Singhla Agencies and accused No. 2, Khushi Ram, Partner
of accused No. 1, moved an application pleading guilty,
stating that samples were taken from their shop, that the
other accused persons in the complaint were not being
served and trial was being delayed. Taking into
consideration the fact that applicants were neither
manufacturers nor were their agents, a lenient view was
taken and both the accused were sentenced to pay fine of
Rs. 1,000/- each. Petitioners who are arrayed as accused 3
& 4 in the complaint have now come up for quashing of the
complaint and the proceedings thereon. I have heard
learned counsel for the parties and have been taken
through the record.
4. Learned counsel for the petitioners argued that one
portion of the samples drawn by the Insecticide Inspector
was sent for analysis to the Central Insecticide
Laboratory (for short ‘CIL’), Faridabad, in contravention
of Section 26(6) of the Act; and that it was incumbent on
the Insecticide Inspector to send one portion of the
samples to the Insecticide Analyst for test analysis. The
sample having been analysed by the CIL in the first
instance prejudiced the right of the petitioners to have a
second test analysis by CIL in terms of Section 24(4) of
the Act. In support of his submission, reliance was
placed on the decisions in Gupta Chemicals Pvt. Limited and
Ors. v. State of Rajasthan and Ors. 2000 IAC 222 (Raj)
[decided on 17th November, 1995]; Jot Ram Dharmchand
Thapa v. State of Punjab through Insecticides Inspector,
Barnala 2000 IAC 135 (P&H) [decided on 9th February,
1993]; and S.N. Chemicals v. State of Rajasthan
[decided on 8th December, 1999] Learned counsel for
respondents argued to the contrary and filed affidavit of
Mr. D.K. Thakur, Project Officer on behalf of State
submitting therein, that the samples were sent to the CIL
Faridabad, as this laboratory is meant for the whole of
India, including NCT of Delhi. He placed on record copies
of notifications in support of the same. It is also
stated that the testing facility for Allethrin 4% was
available only at the CIL and not at the Regional
Pesticide Testing Laboratory (for short ‘RPTL’) either at
Chandigarh or Kanpur, therefore, sample for analysis could
not have been sent to RPTL in the first instance.
5. In order to appreciate rival contentions, it would
be appropriate to quote Section 22(6) and Section 24(4) of
the Act, which read as under:
“22. Procedure to be followed by Insecticide
Inspector.-
(1) to (5) xxxxx
(6) The Insecticide Inspector 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 shall retain the
remainder and dispose of the same as follows:-
(i) one portion of container, he shall
forthwith send to the Insecticide
Analyst for test or analysis; and
(ii) the second, he shall produce to the
court before which proceedings, if
any, are instituted in respect of the
insecticide.”
“24. Report of Insecticide Analyst.-(1) to (3) xxxxx
(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 the Central Insecticides
Laboratory the result thereof, and such report
shall be conclusive evidence of the facts
stated therein.
(5) xxx xxx xxx”
6. Under Clause (i) of Sub-section (6) of Section 22,
the Insecticide Inspector is required to send one portion
of the sample to the ‘Insecticide Analyst’ and the second
sample under Clause 2 is to be produced before the court
in which the proceedings are instituted. “Insecticide
Analyst” is defined under Section 3(f) to mean an
‘Insecticide Analyst appointed under Section 19 of the
Act; and Section 19 of the Act provides that ‘the Central
Government or the State Government may, by notification in
the Official Gazette, appoint any person, in such numbers
as it thinks fit, 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, provided that no person who has any
financial interest in the manufacture, import or sale or
any insecticide, shall be so appointed.’ Thus Insecticide
Analyst referred to in Clause (1) of Sub-section 6 of
Section 22 would include the Insecticide Analyst appointed
either by the Central Government or the State Government,
as the case may. This view stands clarified from
Sub-section (4) of Section 24, which begin with the words,
“Unless the sample has already been tested or analysed by
the Central Insecticide Laboratory…” The opening word
“Unless” in the Section provides an exception to the right
conferred by this rule. The Section envisages sending of
the sample to the CIL only if it has not already been
tested there. In case the sample, at the first instance
itself is tested at the CIL, the question of the accused
losing the right of getting a second testing at the CIL
cannot be said to have been violated. The Supreme Court
in Ram Shankar Mishra v. State of U.P., ,
while rejecting a similar contention, based on Sections
23(4) and 25(1) & (4) of the Drugs and Cosmetics Act,
1940, held that the words, “unless sample has been tested
or analysed in the Central Drugs Laboratory” clearly
indicates that the provision under Section 25(4) for
sending the sample through the Court is one method of
sending it to the Director of Central Drugs Laboratory,
the other one being sending it directly. It was held:-
“3. According to the learned counsel for the
appellant, the sample ought to have been given
to the Analyst at Lucknow under Section 25(1)
of the Act and should not have been sent
direct to the Director of Central Drugs
Laboratory, Calcutta. The submission is that
by sending the sample straight to the
Director, Central Drugs Laboratory, Calcutta,
the appellant was deprived of his right under
Section 25(4) of requesting the Court to send
the sample for analysis by the Central Drugs
Laboratory. We do not see any substance in
this contention. Section 25(1) deals with the
reports of Government Analyst. Section 25(1)
provides that the Government Analyst to whom a
sample of any drug or cosmetic has been
submitted for test or analysis, shall deliver
to the Inspector submitting it a signed report
in triplicate in the prescribed form. The
sub-section contemplates two modes of sending
samples, one by sending the drug for test
under Sub-section (4) of Section 23. There is
no restriction as to how a sample of the drug
or cosmetic has to be submitted b the Drugs
Inspector. Section 25(4) contemplates sending
of the sample through court. It provides that
unless the sample has already been tested or
analysed in the Central Drugs Laboratory,
where a person has under Sub-section (3)
notified his intention of adducing evidence in
controversion of Government Analyst’s report
at the request either of the complainant or
the accused cause the sample of the drug or
cosmetic produced before the Magistrate under
Sub-section (4) of Section 23 to be sent for
test or analysis to the laboratory.
4. The mode prescribed under Section 25(4) is
one method of sending it to the Director of
the Central Drugs Laboratory. The other
method is by the Drugs Inspector sending it
direct as contemplated under the first part of
Section 25(1). It is significant that
Sub-section (4) starts with the words “unless
sample has been tested or analysed in the
Central Drugs Laboratory”. These words
clearly indicate that apart from the mode
prescribed in Section 25(4), the sample can be
sent for analysis to the Central Drugs
Laboratory.
5. The words ‘Government Analyst’ is defined
under Section 3(c)(2) as meaning analyst of
drugs or cosmetics appointed by the Central
Government or State Government under Section
20. Section 20 empowers the State Government
and the Central Government by notification in
appropriate cases to appoint persons having
the prescribed qualifications to be government
Analyst. A the definition as well as Section 20
makes it clear that the Government Analyst
would include all analysts appointed by the
State Government as well as the Central
Government. It is not in dispute that the
Director of Central Laboratory is also a
Government Analyst.”
7. The law laid down by the Supreme Court is fully
applicable to the facts of this case. In view of the
authoritative pronouncement of the Supreme Court, I am
unable to agree with the decisions relied upon by learned
counsel for the petitioners. The contention raised by
learned counsel for the petitioners, that in the first
instance the sample could only be sent to the analyst
appointed by the State Government, is without any merit
and is rejected. I would like to note that the cases
cited by the petitioners were decided in the year 1993 or
1995 but were shown to be reported in IAC 2000 to give an
impression that these are recent decisions. Such practice
and publications ought to be discouraged.
8. Learned counsel for the petitioners next argued that
if the procedure adopted for testing of samples is
contravened to the prejudice of the accused, they have a
right to seek dismissal of the complaint. Reliance was
placed on the Supreme Court decision in State of Haryana
v. Unique Farmaid P. Ltd. and Ors. 2000 Crl.L.J. 2962.
There cannot be any dispute about the observations made by
the Supreme Court, but the facts of the said case were
entirely different. No action was taken by the
Insecticide Inspector to have the sample tested from CIL,
as requested by the accused manufacturer and sales officer
of the firm and the shelf life of the insecticide had
expired by the time the accused were asked to appear in
Court to stand trial. It is not the case here. Section
24(4) of the Act does not apply to the present case, as
the samples were duly tested at the CIL.
9. Learned counsel for the petitioners next argued that
there is delay in filing of the complaint, which deprived
the petitioners of their valuable right as the complaint
was filed and/or service of summons was effected on them
after the expiry of shelf life of the insecticide and even
sanction under Section 31(1) of the Act was obtained after
the expiry of the shelf life of the active ingredient. It
was argued that valuable right of the petitioner to get
the sample re-analysed was violated. The submission,
again, is without any merit. As noticed above, the
samples were seized on 25.9.1995 and CIL report was
obtained on 23.11.95. On receipt of letter from the
retailer M/s. Singla Agencies on 25.1.1996, petitioners
were asked to explain and on receipt of their explanation,
complaint was filed on 23.9.1997. Shelf life of the
active ingredient had yet not expired and, in any case, as
noticed above, the question of getting the samples
re-analysed in this case did not arise as the samples were
got analysed at the CIL in the first instance itself since
the testing facility at the regionals centres for such
analysis was not available.
10. Learned counsel for the petitioners lastly argued
that there is no allegation in the complaint that
petitioner No. 2 was responsible for the conduct of the
business of petitioner No. 1 company and he has been
arrayed as an accused only because he was the director.
He further argued that petitioner No. 2 is located at
Mumbai and was not responsible for the conduct of business
of petitioner No. 1. In support of this submission,
reliance was placed on the Supreme Court decision in
Municipal Corporation of Delhi v. Ram Kishan Rastogi, . It was a case under the Prevention of Food
Adulteration Act. In that case the Manager (accused No. 2)
and all the directors (accused Nos. 4 to 7) were charged.
The complaint against the Manager was upheld looking into
the nature of his duties and the complaint against the
directors was quashed observing that if during the trial
some evidence comes on record, cognizance could be taken
against the directors as well under Section 319 Cr.P.C.
Each case depends upon its own facts. Here, in reply to
the notice served upon them by the Insecticide Inspector
before filing of the complaint, petitioners did not take
any stand as to who was responsible for the conduct of
business of the company (petitioner No. 1). This fact is
especially within their knowledge and the onus to prove
the same would lie upon them after the initial burden is
discharged by the prosecution that the sale was effected
by the company as provided by Section 106 of the Indian
Evidence Act. Even in the petition before this Court it
is not stated as to who was responsible for the conduct of
business of petitioner No. 1. Petitioner No. 2 has not yet
appeared before the trial court. In view of the same, I
do not find any merit in this contention and reject the
same.
11. For the foregoing reasons, I not find any merit
in the petition and the same is dismissed. Trial court is
directed to expedite the trial. Trial court record be
sent back.