Criminal Misc. No.M-20814 of 2007 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Misc. No.M-20814 of 2007 (O&M)
Date of decision: 20.5.2009
Syngenta India Ltd. and another
......Petitioner
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Hemant Bassi, Advocate,
for the petitioners.
Ms.Maloo Chahal, DAG, Haryana.
****
SABINA, J.
The petitioners have filed this petition under Section 482
of the Code of Criminal Procedure (“Cr.P.C. for short) for quashing of
complaint dated 13.3.2006 (Annexure P-1), summoning order dated
13.3.2006 (Annexure P-7) passed by the Chief Judicial Magistrate,
Karnal as well as all subsequent and consequential proceedings
arising therefrom.
The case of the complainant as stated in the complaint
(Annexure P-1), in brief, is that on 16.12.2004, the Quality Control
Inspector, Karnal inspected the premises of M/s Guru Trading
Criminal Misc. No.M-20814 of 2007 (O&M) 2
Company, Shop No.9, Near BDO Office, Nilokheri (Karnal), who was
having a valid licence, and drew a sample of Insecticide Metalaxyl
8+ Mancozeb- % WP bearing batch No.SSP4HO44 manufacturing
date August, 2004 and expiry date July, 2006. The insecticide was
manufactured by M/s Syngenta India Limited, 14-J Tata Road,
Mumbai. The sample was drawn in the presence of Sh. Bharat
Bhusan responsible person of the firm. The purpose of taking of
sample for analysis was informed to the dealer. The fair price of the
sample was paid to the dealer. Three samples of 100 gram each
were prepared. One portion of the sample was given to the firm from
whom the sample was taken and the remaining two samples were
deposited as under:-
(i) One portion of the sample was sent to the RPTL, NH-
IV-Faridabad, through Deputy Director of Agriculture
Karnal vide letter No.8694 dated 28.12.2004 for the test
or analysis as per rule 34 of the Insecticide rule 1971.
(ii) Another portion of sample has been kept for producing
before the Hon’ble Court as and when asked for as per
Section 22 (6) (ii) of the Insecticide Act, 1968.”
After analysis, it was reported as per the analysis report
that the sample was misbranded. In the sample Metalyaxyl +
Mancozeb having 8%+58% WP instead of 8%_ 64% WP with a
variation of 5.20%. A copy of the report was sent along with show
cause notice vide letter No.8451 QC dated 15.12.2005 to the firm
Criminal Misc. No.M-20814 of 2007 (O&M) 3
and the manufacturing company. The reply of the firm was received
on 30.12.2005 and reply of the manufacturing company dated
21.12.2005 was also received on 30.12.2005. The Director of
Agriculture, Haryana gave his written consent/permission for
instituting prosecution vide letter dated 27.1.2006, which was sought
vide letter dated 15.12.2005. On the basis of the said complaint,
petitioners along with other accused were ordered to be summoned
by Chief Judicial Magistrate, Karnal vide order dated 13.3.2006
(Annexure P-7). Hence, the present petition.
Learned counsel for the petitioners has submitted that the
complaint as well as the summoning order are liable to be quashed
as the mandatory provisions of the Act had been violated. The
Public Analyst had failed to submit his report within 30 days of the
receipt of sample in terms of Section 24(1) of the Insecticides Act,
1968 (‘ the Act’ for short). The petitioners had reserved their right to
seek re-analysis of the sample in question but the service was
effected on the petitioners after the shelf life of the insecticides had
already expired.
Learned State counsel has opposed this petition.
There is no dispute with regard to the facts of the present
case. Sample in the present case was drawn on 16.12.2004 and
was sent for chemical analysis on 28.12.2004 and the same was
received by the Inspector on 8.12.2005. Consent was sought by the
department from the Director Agriculture, Haryana, Panchula to file a
Criminal Misc. No.M-20814 of 2007 (O&M) 4
case in the Court against the dealer and manufacturer vide letter
dated 15.12.2005 (Annexure P-9). The same was granted vide letter
dated 27.1.2006 (Anexure P-6). Thereafter, the complaint was filed
on 13.3.2006 after the receipt of consent. Show cause notice was
issued to the petitioners on 15.12.2005. The reply submitted by the
petitioners to the show cause notice is Annexure P-5 (colly) wherein
they reserved their statutory right to adduce evidence in controversion
of the analytical report of the Insecticides analyst. The dealer vide its reply
dated 30.12.2005 (Annexure P7-A) submitted that the sample be got re-
analyzed from some Central Insecticides Laboratory as per Section 24 of
the Act and they were willing to pay the expenses incurred for the same.
Learned counsel for the petitioners has submitted that the
service on the petitioners was effected in the complaint after the
expiry of shelf life of the insecticides. As per Section 24 (4) of the
Act, petitioners could make a request to the Court seeking re-
analysis of the sample of insecticides. However, shelf life of the
insecticides has already expired by the time the petitioners were
served in the complaint and appeared before the Magistrate. Their
valuable right to seek re-analysis of the sample was lost. The
authority did not get the sample re-analysed although a request was
made by the dealer in this regard. The petitioners had also reserved
their right to controvert the report submitted by the analyst whereby
the sample was opined to be misbranded.
It has been held by the Apex Court in State of Haryana
Criminal Misc. No.M-20814 of 2007 (O&M) 5
v. Unique Farmaid P. Ltd. 1994 (4) RCR (Criminal) 540 that in
order to safeguard the right of the accused to have the sample tested
from the Central Insecticides Laboratory, it is incumbent on the
prosecution to file the complaint expeditiously so that the right of the
accused is not lost. By the time the respondents were asked to
appear before the Court the expiry date of the insecticides was
already over and sending of the sample to the Central Insecticides
Laboratory at that late stage would be of no consequence.
Para Nos.11 and 12 of the case of Unique Farmaid
(supra) are reproduced herein below:-
“11. Sub Section (1) of Section 30 which appears to be
relevant only prescribes in effect that ignorance would be
of no defence but that does not mean that if there are
contravention of other mandatory provisions of the Act,
the accused have no remedy. Procedure for testing the
sample is prescribed and if it is contravened to the
prejudice of the accused, he certainly has right to seek
dismissal of the complaint. There cannot be two opinions
about that. Then in order to safeguard the right of the
accused to have the sample tested from Central
Insecticides Laboratory, it is incumbent on the
prosecution to file the complaint expeditously so that the
right of the accused is not lost. In the present case, by
the time the respondents were asked to appear before
Criminal Misc. No.M-20814 of 2007 (O&M) 6the Court, expiry date of the insecticide was already over
and sending of sample to the Central Insecticides
Laboratory at that late stage would be of no
consequence. This issue is no longer res integra. In the
State of Punjab v. National Organic Chemical
Industries Ltd., JT 1996 (10) SC 480 this Court in
somewhat similar circumstances said that the procedure
laid down under Section 24 of the Act deprived the
accused to have sample tested by the Central Laboratory
and adduce evidence of the report so given in his
defence. This Court stressed the need to lodge the
complaint with utmost dispatch so that the accused may
opt to avail the statutory defence. The Court held that the
accused had been deprived of a valuable right statutorily
available to him. On this view of the matter, the court did
not allow the criminal complaint to proceed against the
accused. We have cases under the Drugs and
Cosmetics Act, 1940 and the Prevention of Food
Adulteration Act, 1954 involving the same question. In
this connection reference be made to deisions of this
Court in State of Haryana v. Brij Lal Mittal and others,
1998 (2) RCR (Crl.) 608: 1998 (5) SCC 343 under the
Drugs and Cosmetics Act, 1940; Municipal Corporation
of Delhi v. Ghisa Ram, AIR 1967 SC 970; Chetumal v.
Criminal Misc. No.M-20814 of 2007 (O&M) 7
State of Madhya Pradesh & another, 1981 (3) SCC 72
and Calcutta Municipal Corporation vs. Pawan Kumar
Saraf & another, 1999 (1) RCR (Crl.) 699: 1999 (2) SCC
400 all under the Prevention of Food Adulteration Act,
1954.
12. It cannot be gainsaid, therefore, that the respondents
in these appeals have been deprived of their valuable
right to have the sample tested from the Central
Insecticides Laboratory under Sub Section 4 of Section
24 of the Act. Under Sub Section (3) of Section 24 report
signed by the Insecticide analyst shall be evidence of the
facts stated therein and shall be conclusive evidence
against the accused only if the accused do not, within 28
days of the receipt of the report, notify in writing to the
Insecticides Inspector or the Court before which
proceedings are pending that they intend to adduce
evidence to controvert the report. In the present cases
Insecticide Inspector was notified that the accused
intended to adduce evidence to controvert the report. By
the time the matter reached the Court, shelf life of the
sample had already expired and no purpose would have
been served informing the court of such an intention. The
report of the Insecticide Analyst was, therefore, not
conclusive. A valuable right had been conferred on the
Criminal Misc. No.M-20814 of 2007 (O&M) 8accused to have the sample tested from the Central
Insecticides Laboratory and in the circumstances of the
case accused have been deprived of that right, thus,
prejudicing them in their defence.”
In the present case also the petitioners have been denied
of their valuable right to adduce evidence to controvert the report
submitted by the Analyst. By the time the petitioners were served in
the complaint, shelf life of the insecticides had already expired. The
petitioners had already notified in writing that they intended to
adduce evidence to controvert the report in the reply to the show
cause notice.
In these circumstances, the continuation of criminal
proceedings is nothing but abuse of process of Court.
Accordingly, criminal complaint dated 13.3.2006
(Annexure P-1), summoning order dated 13.3.2006 (Annexure P-7)
passed by the Chief Judicial Magistrate, Karnal as well as all
subsequent and consequential proceedings arising therefrom are
quashed.
(SABINA)
JUDGE
May 20, 2009
anita