{"id":193731,"date":"2002-08-23T00:00:00","date_gmt":"2002-08-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balsara-hygiene-products-ltd-and-vs-state-and-ors-on-23-august-2002"},"modified":"2019-01-03T11:58:57","modified_gmt":"2019-01-03T06:28:57","slug":"balsara-hygiene-products-ltd-and-vs-state-and-ors-on-23-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balsara-hygiene-products-ltd-and-vs-state-and-ors-on-23-august-2002","title":{"rendered":"Balsara Hygiene Products Ltd. And … vs State And Ors. on 23 August, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Balsara Hygiene Products Ltd. And … vs State And Ors. on 23 August, 2002<\/div>\n
Equivalent citations: 2002 (64) DRJ 411<\/div>\n
Author: S Agarwal<\/div>\n
Bench: S Agarwal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.K. Agarwal, J. <\/p>\n
1. Petitioner No. 1 is a company holding license under
\nthe Insecticide Act, 1971 for storage and sale of
\ninsecticides and petitioner No. 2 is the director of
\npetitioner No. 1 company. They filed the writ petition for
\nquashing of complaint No. 136\/97, instituted against them
\nby the Plant Protection Officer\/Licensing Officer,
\nrespondent No. 2, under Section 29(1)(a) read with
\nSub-clause (i) of Clause (k) of Section 3 of the
\nInsecticides Act (hereinafter referred to as the ‘Act’)
\nread with Rule 27 of the Rules framed under the Act, for
\nmanufacturing, selling and distributing misbranded
\nInsecticides\/Mats. The complaint was also filed against
\nthe Retailer as well as Manufacturers, respondents 3 to 6.
\nBy orders dated 9th April, 2001 passed by Division Bench,
\nthe writ petition was registered as a Crl.M.(Main).\n<\/p>\n
2. Facts in brief are: on 22.9.1995 the Notified
\nInsecticide Officer, Government of NCT of Delhi visited
\nshop and sale counter of M\/s. Singhla Agencies (respondent
\nNo. 3) and purchased three packets of allethrin 4% WW mats,
\neach packet containing 30 mats, marked batch No. 51,
\nmanufactured by M\/s. Genesis Chempest Pvt. Ltd. (respondent
\nNo. 5) on 7\/95 with expiry date of 6\/97, and marketed by
\npetitioner No. 1. The purchase was effected through cash
\nmemo for the purpose of analysis. The purchased mats were
\nconverted into three containers and were duly sealed as
\nper rules. one packet was handed over to the retailer,
\nanother packet was retained in the office and the third
\npacket was sent to the Government Analyst for analysis.
\nThe report of the analyst revealed that the
\nsample\/insecticide was misbranded. On receipt of the test
\nreport dated 23.11.95 the retailer was called upon to
\nexplain for selling misbranded insecticides. The retailer
\nfirm, M\/s. Singla Agencies, in their reply dated 25.1.1996,
\ninformed that the said mats were purchased by them from
\npetitioners vide invoice dated 11.9.1995. On 27.5.96
\npetitioners were called upon to explain and their reply
\ndated 22.7.1996 was found to be not satisfactory.\n<\/p>\n
3. On the above allegations complaint under Section 29(1)(a)
\nread with Sub-clause (i) of Clause (k) of Section
\n3 of the Act and Rule 27 of the Rules framed under the
\nAct, was filed on 23.9.1997 against petitioners, retailers
\nas well as manufacturers. The learned trial court took
\ncognizance and summoned the accused persons. Petitioners
\nremained unserved for quite some time. Accused No. 1
\nM\/s. Singhla Agencies and accused No. 2, Khushi Ram, Partner
\nof accused No. 1, moved an application pleading guilty,
\nstating that samples were taken from their shop, that the
\nother accused persons in the complaint were not being
\nserved and trial was being delayed. Taking into
\nconsideration the fact that applicants were neither
\nmanufacturers nor were their agents, a lenient view was
\ntaken and both the accused were sentenced to pay fine of
\nRs. 1,000\/- each. Petitioners who are arrayed as accused 3
\n& 4 in the complaint have now come up for quashing of the
\ncomplaint and the proceedings thereon. I have heard
\nlearned counsel for the parties and have been taken
\nthrough the record.\n<\/p>\n
4. Learned counsel for the petitioners argued that one
\nportion of the samples drawn by the Insecticide Inspector
\nwas sent for analysis to the Central Insecticide
\nLaboratory (for short ‘CIL’), Faridabad, in contravention
\nof Section 26(6) of the Act; and that it was incumbent on
\nthe Insecticide Inspector to send one portion of the
\nsamples to the Insecticide Analyst for test analysis. The
\nsample having been analysed by the CIL in the first
\ninstance prejudiced the right of the petitioners to have a
\nsecond test analysis by CIL in terms of Section 24(4) of
\nthe Act. In support of his submission, reliance was
\nplaced on the decisions in  Gupta Chemicals Pvt. Limited and
\nOrs. v. State of Rajasthan and Ors. 2000 IAC 222 (Raj)
\n[decided on 17th November, 1995];  Jot Ram Dharmchand
\nThapa v. State of Punjab through Insecticides Inspector,
\nBarnala 2000 IAC 135 (P&H) [decided on 9th February,
\n1993]; and  S.N. Chemicals v. State of Rajasthan
\n[decided on 8th December, 1999] Learned counsel for
\nrespondents argued to the contrary and filed affidavit of
\nMr. D.K. Thakur, Project Officer on behalf of State
\nsubmitting therein, that the samples were sent to the CIL
\nFaridabad, as this laboratory is meant for the whole of
\nIndia, including NCT of Delhi. He placed on record copies
\nof notifications in support of the same. It is also
\nstated that the testing facility for Allethrin 4% was
\navailable only at the CIL and not at the Regional
\nPesticide Testing Laboratory (for short ‘RPTL’) either at
\nChandigarh or Kanpur, therefore, sample for analysis could
\nnot have been sent to RPTL in the first instance.\n<\/p>\n
5. In order to appreciate rival contentions, it would
\nbe appropriate to quote Section 22(6) and Section 24(4) of
\nthe Act, which read as under:\n<\/p>\n
“22. Procedure to be followed by Insecticide
\nInspector.-\n<\/p>\n
(1) to (5) xxxxx<\/p>\n
(6) The Insecticide Inspector shall restore
\none portion of a sample so divided or one
\ncontainer, as the case may be, to the person
\nfrom whom he takes it and shall retain the
\nremainder and dispose of the same as follows:-\n<\/p>\n
(i) one portion of container, he shall
\nforthwith send to the Insecticide
\nAnalyst for test or analysis; and<\/p>\n
(ii) the second, he shall produce to the
\ncourt before which proceedings, if
\nany, are instituted in respect of the
\ninsecticide.”\n<\/p>\n
“24. Report of Insecticide Analyst.-(1) to (3) xxxxx<\/p>\n
(4) Unless the sample has already been tested
\nor analysed in the Central Insecticides
\nLaboratory, where a person has under
\nSub-section (3) notified his intention of
\nadducing evidence in controversion of the
\nInsecticide Analyst’s report, the Court may,
\nof its own motion or in its discretion at the
\nrequest either of the complainant or of the
\naccused, cause the sample of the insecticide
\nproduced before the magistrate under
\nSub-section (6) of Section 22 to be sent for
\ntest or analysis to the said laboratory, which
\nshall make the test or analysis and report in
\nwriting signed by, or under the authority of,
\nthe Director of the Central Insecticides
\nLaboratory the result thereof, and such report
\nshall be conclusive evidence of the facts
\nstated therein.\n<\/p>\n
(5) xxx xxx xxx”\n<\/p>\n
6. Under Clause (i) of Sub-section (6) of Section 22,
\nthe Insecticide Inspector is required to send one portion
\nof the sample to the ‘Insecticide Analyst’ and the second
\nsample under Clause 2 is to be produced before the court
\nin which the proceedings are instituted. “Insecticide
\nAnalyst” is defined under Section 3(f) to mean an
\n‘Insecticide Analyst appointed under Section 19 of the
\nAct; and Section 19 of the Act provides that ‘the Central
\nGovernment or the State Government may, by notification in
\nthe Official Gazette, appoint any person, in such numbers
\nas it thinks fit, possessing such technical and other
\nqualifications, as may be prescribed to be Insecticide
\nAnalyst for such areas and in respect of such insecticides
\nor class of insecticides, as may be specified in the
\nnotification, provided that no person who has any
\nfinancial interest in the manufacture, import or sale or
\nany insecticide, shall be so appointed.’ Thus Insecticide
\nAnalyst referred to in Clause (1) of Sub-section 6 of
\nSection 22 would include the Insecticide Analyst appointed
\neither by the Central Government or the State Government,
\nas the case may. This view stands clarified from
\nSub-section (4) of Section 24, which begin with the words,
\n“Unless the sample has already been tested or analysed by
\nthe Central Insecticide Laboratory…” The opening word
\n“Unless” in the Section provides an exception to the right
\nconferred by this rule. The Section envisages sending of
\nthe sample to the CIL only if it has not already been
\ntested there. In case the sample, at the first instance
\nitself is tested at the CIL, the question of the accused
\nlosing the right of getting a second testing at the CIL
\ncannot be said to have been violated. The Supreme Court
\nin  Ram Shankar Mishra v. State of U.P., ,
\nwhile rejecting a similar contention, based on Sections
\n23(4) and 25(1) & (4) of the Drugs and Cosmetics Act,
\n1940, held that the words, “unless sample has been tested
\nor analysed in the Central Drugs Laboratory” clearly
\nindicates that the provision under Section 25(4) for
\nsending the sample through the Court is one method of
\nsending it to the Director of Central Drugs Laboratory,
\nthe other one being sending it directly. It was held:-\n<\/p>\n
“3. According to the learned counsel for the
\nappellant, the sample ought to have been given
\nto the Analyst at Lucknow under Section 25(1)
\nof the Act and should not have been sent
\ndirect to the Director of Central Drugs
\nLaboratory, Calcutta. The submission is that
\nby sending the sample straight to the
\nDirector, Central Drugs Laboratory, Calcutta,
\nthe appellant was deprived of his right under
\nSection 25(4) of requesting the Court to send
\nthe sample for analysis by the Central Drugs
\nLaboratory. We do not see any substance in
\nthis contention. Section 25(1) deals with the
\nreports of Government Analyst. Section 25(1)
\nprovides that the Government Analyst to whom a
\nsample of any drug or cosmetic has been
\nsubmitted for test or analysis, shall deliver
\nto the Inspector submitting it a signed report
\nin triplicate in the prescribed form. The
\nsub-section contemplates two modes of sending
\nsamples, one by sending the drug for test
\nunder Sub-section (4) of Section 23. There is
\nno restriction as to how a sample of the drug
\nor cosmetic has to be submitted b the Drugs
\nInspector. Section 25(4) contemplates sending
\nof the sample through court. It provides that
\nunless the sample has already been tested or
\nanalysed in the Central Drugs Laboratory,
\nwhere a person has under Sub-section (3)
\nnotified his intention of adducing evidence in
\ncontroversion of Government Analyst’s report
\nat the request either of the complainant or
\nthe accused cause the sample of the drug or
\ncosmetic produced before the Magistrate under
\nSub-section (4) of Section 23 to be sent for
\ntest or analysis to the laboratory.\n<\/p>\n
4. The mode prescribed under Section 25(4) is
\none method of sending it to the Director of
\nthe Central Drugs Laboratory. The other
\nmethod is by the Drugs Inspector sending it
\ndirect as contemplated under the first part of
\nSection 25(1). It is significant that
\nSub-section (4) starts with the words “unless
\nsample has been tested or analysed in the
\nCentral Drugs Laboratory”. These words
\nclearly indicate that apart from the mode
\nprescribed in Section 25(4), the sample can be
\nsent for analysis to the Central Drugs
\nLaboratory.\n<\/p>\n
5. The words ‘Government Analyst’ is defined
\nunder Section 3(c)(2) as meaning analyst of
\ndrugs or cosmetics appointed by the Central
\nGovernment or State Government under Section\n<\/p>\n
20. Section 20 empowers the State Government
\nand the Central Government by notification in
\nappropriate cases to appoint persons having
\nthe prescribed qualifications to be government
\nAnalyst. A the definition as well as Section 20
\nmakes it clear that the Government Analyst
\nwould include all analysts appointed by the
\nState Government as well as the Central
\nGovernment. It is not in dispute that the
\nDirector of Central Laboratory is also a
\nGovernment Analyst.”\n<\/p>\n
7. The law laid down by the Supreme Court is fully
\napplicable to the facts of this case. In view of the
\nauthoritative pronouncement of the Supreme Court, I am
\nunable to agree with the decisions relied upon by learned
\ncounsel for the petitioners. The contention raised by
\nlearned counsel for the petitioners, that in the first
\ninstance the sample could only be sent to the analyst
\nappointed by the State Government, is without any merit
\nand is rejected. I would like to note that the cases
\ncited by the petitioners were decided in the year 1993 or
\n1995 but were shown to be reported in IAC 2000 to give an
\nimpression that these are recent decisions. Such practice
\nand publications ought to be discouraged.\n<\/p>\n
8. Learned counsel for the petitioners next argued that
\nif the procedure adopted for testing of samples is
\ncontravened to the prejudice of the accused, they have a
\nright to seek dismissal of the complaint. Reliance was
\nplaced on the Supreme Court decision in  State of Haryana
\nv. Unique Farmaid P. Ltd. and Ors.<\/a> 2000 Crl.L.J. 2962.
\nThere cannot be any dispute about the observations made by
\nthe Supreme Court, but the facts of the said case were
\nentirely different. No action was taken by the
\nInsecticide Inspector to have the sample tested from CIL,
\nas requested by the accused manufacturer and sales officer
\nof the firm and the shelf life of the insecticide had
\nexpired by the time the accused were asked to appear in
\nCourt to stand trial. It is not the case here. Section
\n24(4) of the Act does not apply to the present case, as
\nthe samples were duly tested at the CIL.\n<\/p>\n
9. Learned counsel for the petitioners next argued that
\nthere is delay in filing of the complaint, which deprived
\nthe petitioners of their valuable right as the complaint
\nwas filed and\/or service of summons was effected on them
\nafter the expiry of shelf life of the insecticide and even
\nsanction under Section 31(1) of the Act was obtained after
\nthe expiry of the shelf life of the active ingredient. It
\nwas argued that valuable right of the petitioner to get
\nthe sample re-analysed was violated. The submission,
\nagain, is without any merit. As noticed above, the
\nsamples were seized on 25.9.1995 and CIL report was
\nobtained on 23.11.95. On receipt of letter from the
\nretailer M\/s. Singla Agencies on 25.1.1996, petitioners
\nwere asked to explain and on receipt of their explanation,
\ncomplaint was filed on 23.9.1997. Shelf life of the
\nactive ingredient had yet not expired and, in any case, as
\nnoticed above, the question of getting the samples
\nre-analysed in this case did not arise as the samples were
\ngot analysed at the CIL in the first instance itself since
\nthe testing facility at the regionals centres for such
\nanalysis was not available.\n<\/p>\n
10. Learned counsel for the petitioners lastly argued
\nthat there is no allegation in the complaint that
\npetitioner No. 2 was responsible for the conduct of the
\nbusiness of petitioner No. 1 company and he has been
\narrayed as an accused only because he was the director.
\nHe further argued that petitioner No. 2 is located at
\nMumbai and was not responsible for the conduct of business
\nof petitioner No. 1. In support of this submission,
\nreliance was placed on the Supreme Court decision in
\n Municipal Corporation of Delhi v. Ram Kishan Rastogi,<\/a> . It was a case under the Prevention of Food
\nAdulteration Act. In that case the Manager (accused No. 2)
\nand all the directors (accused Nos. 4 to 7) were charged.
\nThe complaint against the Manager was upheld looking into
\nthe nature of his duties and the complaint against the
\ndirectors was quashed observing that if during the trial
\nsome evidence comes on record, cognizance could be taken
\nagainst the directors as well under Section 319 Cr.P.C.
\nEach case depends upon its own facts. Here, in reply to
\nthe notice served upon them by the Insecticide Inspector
\nbefore filing of the complaint, petitioners did not take
\nany stand as to who was responsible for the conduct of
\nbusiness of the company (petitioner No. 1). This fact is
\nespecially within their knowledge and the onus to prove
\nthe same would lie upon them after the initial burden is
\ndischarged by the prosecution that the sale was effected
\nby the company as provided by Section 106 of the Indian
\nEvidence Act. Even in the petition before this Court it
\nis not stated as to who was responsible for the conduct of
\nbusiness of petitioner No. 1. Petitioner No. 2 has not yet
\nappeared before the trial court. In view of the same, I
\ndo not find any merit in this contention and reject the
\nsame.\n<\/p>\n
11. For the foregoing reasons, I not find any merit
\nin the petition and the same is dismissed. Trial court is
\ndirected to expedite the trial. Trial court record be
\nsent back.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Balsara Hygiene Products Ltd. And … vs State And Ors. on 23 August, 2002 Equivalent citations: 2002 (64) DRJ 411 Author: S Agarwal Bench: S Agarwal 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-193731","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nBalsara Hygiene Products Ltd. 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