CRM-M-6097 of 2012 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRM-M-6097 of 2012 (O&M) Date of Decision :
30. 07.2013 M/s Hindustan Pulverizing Mills ......Petitioner Versus State of Haryana ...Respondent CORAM: HON'BLE Mr.JUSTICE R.P.NAGRATH 1
Whether Reporters of local papers may be allowed to see the judgment?.”
2. To be referred to the Reporters or not?.”
3. Whether the judgment should be reported in the Digest?.
Present: Mr.Anurag Chopra, Advocate for the petitioner.
Mr.Manish Deswal, DAG, Haryana.
R.P.Nagrath.
J This petition under Section 482 Cr.P.C.has been filed for quashing complaint No.669/2 dated 09.08.2008 (Annexure P-7) under Sections 3(k)(i) 17, 18, 29 and 33 of the Insecticide Act, 1968 read with Rule 27(5) of Insecticide Rules, 1971 (to be referred in short as 'the Act') alongwith summoning order dated 09.08.2008 (Annexure P-8).I have heard learned petitioner's counsel and State Counsel and perused the record.
The premises of authorized dealer for sale of pesticide manufactured by petitioner was raided by Insecticide Inspector on 27.11.2007.
Sample of Carbendazim 12% + Mencozeb 63% WP insecticide manufactured on 13.08.2006 with date of expiry Jitender Kumar 2013.08.03 15:29 I attest to the accuracy and integrity of this document Chandigarh CRM-M-6097 of 2012 (O&M) -2- 12.08.2008, was taken.
One part of the sample was also handed over to the dealer.
On receipt of the report of Insecticide Quality Control Laboratory, the sample was found misbranded as it contained Carbendazim 11.9% + Mancozeb 57.6% WP against the prescribed standard.
Copy of the test report was sent to the petitioner and other accused vide letter dated 21.01.2008 (Annexure P-2).The complaint was filed before the Chief Judicial Magistrate on 09.08.2008 for various offences falling under the Insecticide Act, 1968 and order (Annexure P-8) summoning the petitioner and others as accused, for 29.10.2008.
Learned counsel for the petitioner vehemently contended that petitioner moved an application dated 15.02.2008 (Annexure P-3) under Section 24(4) of the Act before Chief Judicial Magistrate within the prescribed time for sending the second sample to the Central Insecticide Laboratory (CIL).The Chief Judicial Magistrate dismissed the application on 16.04.2008 holding that the application was not filed by an authorized person of the company.
The petitioner through the same area Manager filed petition CRM-M-13407 of 2008, challenging the order of Chief Judicial Magistrate and this Court allowed the petition by an order dated 07.08.2008 (Annexure P-6) that the expiry date of the product was 12.08.2008 and the prayer for sending the sample could not be declined on mere technicality.
The order passed by Chief Judicial Magistrate was, thus, set aside.
It was directed that the application filed by the petitioner be entertained and sample be sent for retesting under Section 24 (4) of Insecticide Act.
The above order of this Court should have put the Jitender Kumar 2013.08.03 15:29 I attest to the accuracy and integrity of this document Chandigarh CRM-M-6097 of 2012 (O&M) -3- complainant/department on alert to ensure that sample reaches CIL on time but the order of Chief Judicial Magistrate dated 13.08.2008 (Annexure P-10) would show that direction was issued to send the sample to CIL for re-analysis as per rules, matter was fixed for 24.09.2008 for awaiting the report.
However, Director, Central Insecticide Laboratory vide Annexure P-11 states that sample was received on 20.08.2008 and the laboratory does not analyze the date expired pesticides as no conclusive decision could be taken about the quality of the date expired pesticide due to presence of unknown degraded products generated in this type of pesticide sample.
It is, thus, quite clear that the petitioner on its part was not at all responsible for the events, as it had applied for re-testing on 15.02.2008 itself, exercising the right available to it for sending second sample.
In view of the above undisputed facts this petition deserves to be allowed.
The law laid down by Hon'ble Supreme Court in Northern Mineral Ltd.v.Union of India and another, 2010 (7) SCC 72.is squarely applicable to the facts of instant case.
That was the petition filed by the manufacturer of the insecticide.
The Hon'ble Supreme Court held as under:- “xx xx xx xx xx 11.
From a plain reading of Section 24(3) of the Act, it is evident that an accused within 28 days of the receipt of the copy of the report of the Insecticide Analyst to avoid its evidentiary value is required to notify in writing to the Insecticide Inspector or the Court before which the proceeding is pending that it Jitender Kumar 2013.08.03 15:29 I attest to the accuracy and integrity of this document Chandigarh CRM-M-6097 of 2012 (O&M) -4- intends to adduce evidence in controversion of the report.
Section 24(4) of the Act provides that when an accused had notified its intention of adducing evidence in controversion of the Insecticide Analyst report under Section 24(3) of the Act, the court may of its own motion or in its discretion at the request either of the complainant or the accused cause the sample to be sent for analysis to the Central Insecticides Laboratory.
Under the scheme of the Act when the accused had notified its intention to adduce evidence in controversion of the report of the Insecticide Analyst, the legal fiction that the report of the Insecticide Analyst shall be conclusive evidence of the facts stated in its report looses its conclusive character.
The Legislature has used similar expression i.e.the "intention to adduce evidence in controversion of the report" in both Sub-section (3) and Sub-section (4) of Section 24 of the Act, hence both the expression has to be given one and the same meaning.
Notification of an intention to adduce evidence in controversion of the report takes out the report of the Insecticide Analyst from the class of "conclusive evidence" contemplated under Sub- section (3) of Section 24 of the Act.
Further intention of adducing evidence in controversion of the Insecticide Analyst report clothes the Magistrate the power to send the sample for analysis to the Central Insecticides Laboratory either on its own motion or at the request of the complainant or the accused.
In face of the language employed in Section 24(4) of the Act, the act of the accused notifying in writing its intention to adduce evidence in controversion of the report in our opinion shall give right to the accused Jitender Kumar 2013.08.03 15:29 I attest to the accuracy and integrity of this document Chandigarh CRM-M-6097 of 2012 (O&M) -5- and would be sufficient to clothe the Magistrate the jurisdiction to send the sample to Central Insecticide Laboratory for analysis and it is not required to state that it intends to get sample analysed from the Central Insecticides Laboratory.
True it is that report of the Insecticides Analyst can be challenged on various grounds but accused can not be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion.
The moment it is done conclusive evidentiary value of the report gets denuded and the statutory right to get the sample tested and analysed by the Central Insecticides Laboratory gets fructified.
xx xx xx xx xx 14.
We are distressed to note the casual manner in which the whole exercise has been done.
Insecticide Inspector had collected the sample on 10th September, 1993 and sent it to the Insecticide Analyst for analysis and report.
Insecticide Analyst submitted its report dated 13th October, 1993.
Notice of the report was sent to the appellant on Ist November, 1993, in reply whereof by letter dated 17th November, 1993 it intimated its intention to adduce evidence in controversion of the report.
The shelf-life of the pesticide had not expired by that time but expired in February 1994.
However, permission to file complaint was given on 23rd February, 1994 and the complaint was actually filed on 16th March, 1994.
Had the authority competent to grant consent, given consent and complaint lodged immediately after the receipt of intimation of the accused, sample Jitender Kumar 2013.08.03 15:29 I attest to the accuracy and integrity of this document Chandigarh CRM-M-6097 of 2012 (O&M) -6- could have very well sent for analysis and report, before the expiry of shelf-life.
It is interesting to note that Section 24(3) and (4) of the Act obliges the Insecticide Analyst and Central Insecticides Laboratory to make the test and analysis and report within thirty days.
When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory.
All who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to the time-schedule, so that innocent persons are not prosecuted and real culprits not left out.”
Keeping in view the above principle, it is held that petitioner's right to get the second sample analyzed, has been defeated for which he made strenuous efforts.
The petition is allowed and the complaint (Annexure P-7) and the summoning order (Annexure P-8) are quashed qua the petitioner only.
July 30, 2013 ( R.P.NAGRATH ) jk JUDGE Jitender Kumar 2013.08.03 15:29 I attest to the accuracy and integrity of this document Chandigarh