ORDER
Nanak Chand Khichi, J.
1. The prayer of the petitioner in this petition under Section 482 of the Code of Criminal Procedure, read with Article 227 of the Constitution of India, is for quashing the complaint dated 7-8-1992 (Ann. P. 2), under Sections 3(K) 17, 18, 29 and 33 of the Insecticides Act, 1968 (for short, the 'Act') read with Rule 27(5) of the Insecticides Rule 1971, pending in the Court of Sub Divisional Judicial Magistrate, Moga, and also for quashing all consequential proceedings arising thereof.
2. M/s. Gujarat Narmada Valley Fertilizer Company Ltd., Chandigarh, (petitioner) is a licenced manufacturer of different insecticides/ pesticides including Butachlore 50% E. C, and Shri D. A. Vaishnav is its Marketing Manager. As per the allegations made in the complaint, on 12-6-1990, Shri Kirpal Singh, Insecticides Inspector, Moga-2, alongwith Sukhdev Singh, Agricultural Inspector, visited the premises of M/s. Cass Ghal Kalan, District Faridkot, the dealer, and drew 3 samples of Butachlore 50% E. C, manufactured by the petitioner Company. One sealed sample was handed over to Shri Balkaran Singh, Secretary CASs Ltd., ghal Kalan while other two samples were sent to Major Singh, Enforcement Officer, on 14-6-1990, who further sent the same to Ludhiana Laboratory on 18-6-1990. On 17-7-1990, the sample was analysed by the Analyst, who vide report (Ann. P. 1) found the same as misbranded as it did not conform to ISI specifications. Consequently, complaint (Ann. P. 2), as stated above, was filed against the dealer, distributor and the petitioner-manufacturing Company. It is alleged that the date of manufacturing was 3-3-1990 and its expiry date was 2-3-1992, whereas the complaint was file on 7-8-1992, and as such, the petitioner has been deprived of its valuable right under Section 24(3) of the Act due to the negligence on the part of the complainant-respondent. It is further alleged that no legal and valid sanction under Section 31 of the Act, has been granted.
3. On notice of motion having been issued, the respondent filed reply in the form of affidavit of Kirpal Singh, Insecticides Inspector Moga-2, wherein the factual position with regard to the taking of sample on 12-6-1990, has not been disputed. It has further been pleaded that the delay was due to the fault on the part of the petitioner-' firm as no responsible person was present in the firm when the answering-respondent approached them..
4. After Hearing the learned counsel for the parties and on going through the record, I am of the view that this petition is liable to be accepted for the reasons to be recorded hereinafter :-
Admittedly, the date of manufacturing of the insecticide was 3-3-1990 and its expiry date was 2-3-1992. The present complaint (Ann. P. 2), was filed on 7-8-1992. i.e. much after the expiry of the shelf life of the insecticide. There was hardly any time for the petitioner to show his willingness to get the second sample re-analysed and to controvert the report of the Analyst. Thus there is clear violation of the provisions of Section 24(3) of the Act and the valuable right of the petitioner has been taken away by the in-action and sheer negligence on the part of the complainant-respondent. In Criminal Misc. No. 9158-M of 1995 (Jhajhan Lal Gupta v. State of Haryana), decided on 5-2-1996 reported in 1997 Cri LJ 190, it was held as under :-
There is no provision under the Act that the manufacturer can get the sample re-tested before launching prosecution against him except in Sub-section (3) whereby he can challenge the report of the Insecticide Analyst only. Section 24 of the Act confers two rights i.e. the right to challenge the correctness of the report of the analysis on the receipt of the show cause notice, and secondly to challenge the same and to make a request before the Court for re-analysis of the counter sample after the complaint is filed. The provisions of this section simply provide that in case a written request is made by the manufacturer expressing its intention to controvert the report of the Analyst, the report shall not be conclusive evidence of the facts contained therein. Therefore, the service of the notice regarding the sample being misbranded or intimating the manufacturer that the re-analysis can be ordered by a Court before the date of expiry of shelf life of the insecticide, is of no consequence. The material requirement of the Act is that the complaint should be filed and the accused should be served well in time before the expiry of the shelf life of the insecticide in question so as to enable the, accused persons to challenge the correctness of the report of the analyst by forwarding the counter part of the sample to the Central Laboratory. If this right of an accused under the Act is violated by inaction or omission on the part of the, department, the same is fatal to the prosecution. Same was the view taken in the judgments delivered in Cri. Misc. No. 15276-M of 1995 (Cashew Agrichemicals Pvt. Ltd. v. State of Punjab), decided on 14-10-1996, Crl. Misc. No. 5095-M of 1995 (Unique Paramid Pvt. Ltd. v. State of Punjab), decided on 7-9-1995; Crl. Misc. No. 21572-M of 1995 (Jaishree Pvt. Ltd. v. State of Haryana) and Crl. Misc. No. 5596-M of 1996 (Balwant Singh v. State of Punjab), decided on 10-4-1996. In The State of Punjab v. National Organic Chemical Industries Ltd. (1996) 10 JT (SC) 480, the apex Court held as under :-Unfortunately, in the case, the appellant did not adopt the course as was required under, the Act, of course, the respondent, without availing of-the remedy of report by Director of CIL, may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail the statutory defence. The appellant had not given third sample to the respondent. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him. Under these circumstances, we think that further proceedings in the Court of the Chief Judicial Magistrate would be rendered fruitless. Consequently, though for different reasons the complaint quashed by the Court may be justified warranting no interference.
5. Though the learned counsel for the petitioner has assailed the prosecution case on other grounds but 1 do not wish to deal with the same in view of the well-settled proposition of law that once the accused is deprived of this right of getting the sample analysed in accordance with the provisions of the Act, such default shall prove fatal to the case of the complainant.
In view of what has been stated above, this petition is allowed and complaint dated 7-8-1992 (Ann. P. 2) and all consequential proceedings arising thereof qua the petitioner, pending in the Court of Sub-Divisional Judl. Magistrate, Moga, are hereby quashed.