ORDER
M.P. Chinnappa, J.
1. The brief facts leading to this petition are that the Inspector of Insecticides and Assistant Director of Agriculture, Gulbarga District, filed a complaint before the Munsiff and JMFC, III Court, Gulbarga, alleging that Deshmukh Enterprises is the dealer in the insecticide Anucros (Monocrotophos) and the accused Nos. 2 & 3 are its partners. The said insecticide was manufactured by the 4th accused viz. M/s. S.N. Chemical Industries. On 8.10.91, the complainant collected 3 samples for analysis. He had handed over one sealedsample to the accused No. 1. He sent another sample to Insecticide Analyst/Deputy Director of Agriculture Insecticide Control/Laboratory, Bellary, for analysis & one more sample was retained in the office as referred sample. He received the report from the Analysis on 29.10.91, according to which the said insecticide Anucros (Monocrotophos) B. No. 080 AP46 found 'misbranded'. Again he visited the shop and handed over the copy of the Analysis report along with the show-cause notice to accused No. 1. At that time he found that the entire stock was disposed of. He also issued show cause notice with a copy of the analysis report to accused No. 4. He received the reply from both A-1 & A-4, but he was not convinced. It is further alleged that A-1, A-2 and A-3 had the stock exhibited and sold the 'misbranded' insecticide. As such accused Nos. 1 to 3 have committed offence by contravening Sub-clause (i) & VIII of Cause (K) of Section 3 of Insecticide Act, 1968, punishable under Section 29(1)(a) of the Insecticide Act, 1968, (for short 'the Act'). Similarly, accused No. 4 also committed the offence under Section 29(1)(a) by contravening Sub clause 1 & VIII of Clause (K) of Section 3 of the Act, Therefore, after obtaining necessary sanction, he lodged a complaint before the Judicial Magistrate 1st Class at Gulbarga, seeking appropriate orders by conducting summary trial. On receipt of the complaint, the learned Magistrate has taken cognizance and directed to issue process to the accused persons which is questioned by these petitioners in this petition under Section 482 Cr.P.C.
2. Heard the learned Counsel for the petitioners and the learned SP.P. for the respondent.
3. The learned Counsel submitted that the respondent has not taken the sample in the presence of any of the petitioners. The plastic bottle used, though said to be H.D.P. did not conform to Indian standard sampling prescribed. He also submitted that the Inspector of Insecticides failed to send separately specimen impression of the seal on the packet. The respondent also has not collected the sample from top, bottom and middle portion of the container. He also failed to furnish the sample for retesting to the Central Insecticide Laboratory inspite of the demand as provided under Sub-sections 3 & 4 of Section 24 of the Act. The sanction granted for prosecution by the Director is vitiated and the investigation is not honest. The report of the analysis is liable to be rejected as sufficient quantity ofsample was not sent. Therefore, he contended that no offence was made out as against these petitioners.
4. However, the learned S.P.P. submitted that the petitioner cannot raise all these contentions in this Court under Section 482 Cr.P.C. The question of collecting the materials in accordance with law and the report of the analysis will have to be considered by the trial Court. He further submitted that despite notice being served, the petitioners have not taken any action for re-testing of the materials. Therefore, it cannot be said that the respondent has not complied with the requirement of sub-sections 3 & 4 of Section 24 of the Act. He also submitted that at this stage, this Court cannot go into the pros and cons of the petitioners' case. Therefore, the petition is liable to be dismissed.
5. The contention of the learned Counsel for petition is that the respondent has not taken the sample in the presence of any of the petitioners; the plastic bottle used though said to be H.D.P. did not conform to Indian standard sampling prescribed, etc. are questions of procedures which were followed by the Inspector. Whether he has followed the procedure in accordance with the Act and Rules is a question of fact to be established by the complainant at the stage of trial. Only on the basis of the allegations contained in the complaint and the averments made in this petition, this Court cannot decide in regard to procedure followed by the Inspector. If he had not complied with the requirement of the various provision of law under the Act, the petitioners are at liberty to take advantage of it, at the time of trial.
6. It may be also mentioned here that Their Lordships of the Supreme Court in a decision reported in STATE OF H.P. v. PIRTHI CHAND, : 1996CriLJ1354 , have held that even non-compliance of the Mandatory provisions of law also is not a ground for the High Court to interfere with the order passed by the Magistrate in directing issue of process. Therefore, all these contentions are to be rejected reserving liberty for the petitioners to establish them at the appropriate stage before the Trial Court.
7. The main contention of the petitioners is that the complaint has failed to send the sample for retesting to the Central InsecticideLaboratory inspite of the demand as provided under sub-section 3 & 4 of Section 24 of the Act. In the complaint it is specifically made clear that samples were seized from the godown of 1st petitioner firm where petitioners 2 and 3 are the partners. He had collected 3 samples & handed over one sample to the 1st petitioner, the other sample was sent to the Chemical Analyst, Bellary and the third was retained by him. From this it is clear that the petitioners 1 to 3 had taken possession of the sample given by this Inspector/complainant. Thereafter, the petitioner had sent the sample to the Chemical Analyst for his report on 8.10.91 itself and he received the report on 11.11.91. It is also specifically stated in the complaint that immediately, he visited the shop and handed over the copy of the analysis report along with the show-cause notice to accused No. 1. It is not out of place to mention here that he also found that the entire stock of the above 'misbranded' insecticide was disposed of. Despite the report being served on the petitioner, the petitioner did not take any action to send it to the Central Insecticides Laboratory. On the other hand both petitioners 1 & 2 by their letter dated 24.11.1991 and 27.11.1991 respectively, intimated the 2nd respondent that they intend to adduce evidence as per the provisions of Sections 24(3) & (4) of the Act and Rules and requested to arrange for re-testing of the above said sample in the Central Insecticide Laboratory and also to intimate the fee and other charges, if any, so that the amount could be sent to him. Admittedly, the complainant had not made any arrangement to send these samples for re-testing as requested. On the other hand, he had obtained the sanction from the competent authority on 16.7.92 and lodged the complaint before the Court on 15.9.92. The question is whether the complainant himself should make arrangement to send it to the Central Analyst for re-testing or it should be done by the Court either suo moto or on the application of the complainant or the accused persons. At this stage, it is necessary to be reproduce Section 24 which reads:
'24. Report of Insecticide Analyst.--
(1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-section (6) of Section 22, shall, within a period of sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form.
(2) The Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by anInsecticide Analyst shall be evidence of the facts statedtherein, and such evidence shall be conclusive unless theperson from whom the sample was taken has within twentyeight days of the receipt of a copy of the report notified inwriting the Insecticide Inspector or the Court before whichany proceedings in respect of the sample are pending thathe inter ds 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 subsection (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) The cost of a test or analysis made by the Central Insecticides Laboratory under sub-section (4) shall be paid by the complainant or the accused, as the Court shall direct.'
From a reading of sub-section (3) it is clear that the report of the Analyst shall become evidence of fact stated therein and such evidence shall be conclusive if the person from whom the sample was taken has within 28 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. In this case, the Inspector had served the show-cause notice along with the copy of the report on 11.11.91 to both the petitioners 1 & 4. The 1st petitioner sent a letter on 24.11.91 i.e. within 10 days. It desired to have aretest & requested the complainant to make arrangements. Similarly, the 4th petitioner also made a request by its letter dated 24.11.91. That is also within 15 days from the date of receipt of the show cause notice expressing its desire to have a re-test. They have also undertaken to pay the expenses to be incurred for that purpose but admittedly, the complainant has not chosen to make arrangements. The question is whether that itself is sufficient for this Court to intervene under Section 482 Cr.P.C. If the request of the accused persons was not complied with, still a provision is made as per subsection (4) of Section 24 wherein if an accused has under subsection (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 laboratory. Therefore, from this it is clear that the petitioners cannot ask this Court to quash the proceedings only on the ground that the complainant has not made arrangements to have the re-test done by the Central Insecticides Laboratory for adducing evidence.
8. In this case, admittedly the petitioners did not make any application before the Court requesting to send the samples to the Central Insecticides Laboratory for its opinion, notwithstanding the fact that the sample was available with the 1st petitioner. Therefore, the trial Court will have to ascertain as to whether the Analyst Report can be accepted or not. If not satisfied, then only the request if made by either of the parties or suo moto can send the sample for second opinion from the Central Laboratory. The learned Counsel for the petitioners furnished a copy of the Judgment dated 15.5.90 passed by the High Court of Punjab & Haryana in Crl. Misc. No. 6039-M/89. In that case, the question was a sample of insecticide was taken in April 1987 and the expiry date mentioned therein was March 1988. The manufacturer also had a valuable right under Section 24(3) of the Act to get the sample analysed from the Central Insecticide Laboratory which would supersede the report of the Analyst. In that case, the manufacturer was neither provided with a sample of the insecticide taken from the dealer nor the copy of the Analyst was supplied to him before filing the impugned complaint, in the Court of the Chief Judicial Magistrate on 18-7-1988. Thepetitioners therein received the information with regard to the filing of such complaint on 29-7-89. Under the circumstances, their Lordships have held that the entire proceedings are liable to be quashed.
9. He also placed reliance on a decision rendered by Punjab & Haryana High Court in Crl. R.P. 3-M of 1985 dated 4.11.85. In that case also, the report of the Analyst was not furnished to the petitioner and there was inordinate delay which deprived the petitioner therein of a right to get the sample analysed under sub-section 4 Section 24 of the Act. Therefore, the petition was allowed and the entire proceedings were quashed, in order to secure the ends of justice. He further relied on a decision reported in ARTAR MINERALS AND ANR. v. STATE AND ANR. 1992 Cr.L.R. (Raj.) 59, wherein it is held that if the date of expiry of the sample had already passed before the accused was summoned and the sample could not be reanalyzed then the right of the accused to apply to get it analysed is denied and in those circumstances the proceedings against the manufacturer were quashed to prevent the abuse of the process of Court. In U.S. MADAN v. STATE 1991 Cr.L.R. (Raj) 799, it is held that the petitioner has been deprived of a right to get the samples reanalyzed and in such circumstances to allow the trial of the petitioner to set aside the order would amount to the abuse of the Court and the proceedings against those petitioners were dismissed.
10. From these decisions, it is abundantly clear that either the Analyst Report was not furnished or there was inordinate delay in launching the prosecution and further there was no opportunity for those petitioners to get the second opinion from the Central Laboratory, thereby their Lordships have held that valuable rights of the petitioners were denied as available under sub-section (4) of Section 24.
11. As rightly pointed out by the learned S.P.P. from the case on hand it is clear that the sample was given to the 1st petitioner immediately after he collected the samples. Further as soon as he received the report, from the Analyst he furnished the copy of the same to the 1st petitioner along with the show-cause notice. Admittedly, the samples were not seized from the 4th accused.Therefore, the question of giving the samples to the 4th accused does not arise - who is the manufacturer. However, he has given a show-cause notice to him also which was promptly replied. Therefore, the petitioners had ample opportunity to get the samples retested by the Central Laboratory to controvert the opinion already furnished by the Analyst. This opportunity was not availed of by the petitioners. Therefore, it is not now open to them to say that the Magistrate committed an error in taking cognizance of the case. Therefore, viewed from any angle, the impugned order does not call for interference. Notwithstanding the above observations, it is still open to the petitioners to raise all these contentions before the learned Magistrate at the relevant point of time.
12. For the foregoing reasons, I hold that this petition has no merit and it is accordingly dismissed.