Garg, J.
1. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioners, who are manufactures with the prayer that the proceedings of criminal Case No. 77A/91 State v. Merta Krishak Kraya Vikrya Sahakari Samiti, Merta City and ors. for the offence under Section 29 of the Insecticides act, 1968 (herein-after referred to as 'the Act of 1968') pending in the Court of Judicial Magistrate First Class, Merta City be quashed.
2. It arises on the following circumstances:-
On 5.7.1991, a complaint was filed by Harnath Singh, Assistant Director Agriculture (Quality Control) and Insecticide Inspector, Jaipur in the Court of Judicial Magistrate, Merta City against the present petitioners, who are Manufacturers and apart form them against M/s Merta Krishak Kraya Vikrya Sahakari Samiti, Merta City District Nagaur and its Manager Nathus Ram, who are dealers of the insecticide in question. It was stated in the complaint that on 25.7.1990, Assistant Director Agriculture (Quality Control) and Insecticide Inspector, Jaipur took sample of the insecticide BHC 10% D.P. (Gamma Isomer 1.3%) from M/s Merta Krishak Kraya Vikrya Sahakari Samiti, merta City, who was dealer and prepared the fard and in that fard, it was also stated that batch number of the insecticide was RB-05 and date of manufacturing was July 1990 and date of expiry was June, 1992 and he divided the sample into three parts as required by law. One of the samples was sent for analysis to the Insecticide Analyst, State Pesticide Testing Laboratory, Govt. of Rajasthan, Durgapura, Jaipur and the Insecticide Analyst, Stale Peslicide Testing Laboratory, Government of Rajasthan, Jaipur gave his report on 13.8.1990, in which it was reported that the sample did not conform to the relevant IS specification No. 561-1978 in active ingredient and hence, it was misbranded.
3. When the sample was not found in accordance with the prescribed standard, a notice dated 30.8.1990 was given by the Assistant Director Agriculture (Quality Control) and Insecticide Inspector, Jaipur to M/s. Merta Krishak Kraya Vikrya Sahakari Samiti, Merta City from whom, sample was taken. After obtaining sanction for prosecuting M/s. Merta Krishak Kraya Vikraya Sahakari Samiti, Merta City and its Manager Nathu Ram and present accused petitioners, the present complaint was filed oh 5.7.1991 in the Court of Judicial Magistrate, Merta City.
On this complaint, the learned Judicial Magistrate, Merta City vide order dated 13.8.1991 took cognizance against the present petitioner and others mentioned in the complaint for the offence under Section 29 of the Act of 1968.
From the record of the lower court, it appears that after taking cognizance against the present petitioners and others on 13.8.1991, summons were issued against the present accused petitioners and others for appearance, but the case was adjourned form time to time and despite order to issue summons, summons were not issued and for the first time, summons were issued on 20.10.1992 and from the order sheet dated 5.1.1993, it appears that on that day Nathu Ram, Manager of M/s. Merta Krishak Kraya Vikraya Sahakari Samiti, Merta City appeared, but the present accused petitioners were served for the first time on 19.8.1999.
4. In this petition-under Section 482 Cr.P.C. the following submissions have been made by the learned counsel appearing for the petitioners:-.
(1) That since no notice alongwith the report of the Insecticide Analyst was given to the present accused petitioners by the Insecticide inspector, therefore, they have lost the valuable right give to them under Section 24 of the Act of 1968 to get the sample to be retested by the central Insecticide Laboratory and thus, on this ground alone, the complaint should be quashed.
(2) That date of manufacturing of the sample was July 1990 and date of expiry was June 1992 and till then the accused petitioner's were not served either with the court notice or notice on behalf of the Insecticide Inspector and therefore, the shelf life of the insecticide in question expired and in such circumstances, the petitioners have been deprived of their valuable right to get the sample re-tested from the Central Insecticide Laboratory and thus, prejudiced their defence and hence, on this ground also, proceedings should be quashed.
5. On the other hand, the learned Public Prosecutor has submitted that since the complaint has been filed before the expiry period of sample in question and in law, it is not required that a notice be given to the manufacturers and, therefore, this petition under Section 482 Cr.P.C. be dismissed.
6. I have heard the learned counsel for the accused petitioners and the learned Public Prosecutor and perused the material available on record.
7. Before proceeding further, it would be worthwhile to quote here Section 24 of the Act of 1968.
'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 an insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty eight 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.
(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 Sub-section (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, 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.'
8. Section 21 of the Act of 1968 empowers the Insecticide Inspector to take samples of any insecticide and send such samples for analysis to the Insecticide Analyst for test in the prescribed manner and as per Sub-section (5) of Section 22-of the Act of 1968, he shall divide the sample into three portions and effectively seal and as per Sub-section (6) of Section 22, one of the samples shall be forwards by him to the Insecticide Analyst for test or analysis. As per Section 24(1) of the Act of 1968, 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 and according to Sub-section (2) of Section 24, the Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and the report of the Insecticide Analyst shall be conclusive evidence unless the person from whom sample was taken, has within twenty eight 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 intents to adduce evidence in controversion of the report. Sub-section (4) of Section 24 casts a duty on the Insecticide inspector to make compliance of the provisions for re-testing etc.
9. From perusing the record of the present case, it appears:-
(1) That the sample was taken by the Assistant Director Agriculture (Quality Control) and Insecticide Inspector, Jaipur on 25.7.1990 from M/s. Merta Krishak Kraya Vikraya Sahakari Samiti, Merta City, who was dealer.
Note :- It may be stated here that M/s Merta Krishak Kraya Vikraya Sahakari Samiti Merta City and its Manager Nathu Ram are not.party in this petition.
(2) That manufacturing date of the sample, which was taken from M/s. Merta Krishak Kraya Vikraya Sahakari Samiti, Merta City on 25.7.1990, was July, 1990 and its expiry date was June, 1992.
(3) That the said sample was sent to the Insecticide Analyst, State Pesticide Testing Laboratory, Government of Rajasthan, Durgapura, Jaipur for analysis and the Insecticide Analyst gave his report on 13.8.1990 and found that the sample was misbranded.,
(4) That thereafter, a notice alongwith the report was given by Assistant Director Agriculture (Quality Control) and Insecticide Inspector,Jaipur to M/s, Merta krishak Kraya Vikraya Sahakari Samiti, Merta Cityon 30.8.1990.
(5) That no notice alongwith the report of the Insecticide Analyst was given to the present accused petitioners, who are manufacturers.
(6) That on 5.7.1991, a complaint was filed in the Court of Judicial Magistrate, Merta City against the present petitioners and others mentioned in the complaint.
(7) That on this compliant, cognizance was taken by the learnedJudicial Magistrate Merta City on 13.8.1991 against the accused petitioners and others and upto June, 1992, the date of expiry of sample,the present petitioners were not served with the summons of theCourt.
10. Now the question that arises for consideration is whether in the above facts and circumstances, the present complaint so far as it relates to the present accused petitioners should be quashed or not.
11. The Hon'ble Supreme Court in Amery Pharmaceuticals and Anr. v. State of Rajasthan. 2001(4) SCC 382, has clearly held that so far as the giving of notice to the dealer and distributor is concerned, the Inspector is obliged under the law to give notices to them about the mis-branding sample.
12. Thus, under law, Insecticide Inspector is bound to give notice alongwith copy of the report of the Insecticide Analyst to the dealer and distributors as required by Section 24(2) of the Act of 1968.
13. The Hon'ble Supreme Court in the case of Amery Pharmaceuticals (supra) has further held that the manufacturer's position is somewhat different from the, distributor or retailer and the Inspector is not obliged to give notice to manufacturer. But, the manufacturer cannot be denied the remedy of challenging the Government Analyst's report before the court, when they are made accused in the case under Section 32A of the Drugs and Cosmetics Act, 1940, as, it would amount to violation of right under Article 21 of the Constitution of India.
14. It may be stated here that some of the High Courts earlier to the decision of the Hon'ble Supreme Court in the case of Amery Pharmaceuticals (supra) were of the opinion that even the Inspector was under bounden duty to give notice to manufacturer and now the position has been made clear by the Hon'ble Supreme Court in Amery Pharmaceutical's case (supra) that Inspector is not under an obligation to give notice to manufacturer, but if notice had already been given before filing of the complaint and within prescribed limit, then certainly he has a similar right as the distributor has.
15. In the present case, no notice was given to present accused petitioners by the Assistant Director Agriculture (Quality Control) and Insecticide Inspector Jaipur and he filed the complaint in the Court of Judicial Magistrate, Merta City and by that time the accused petitioners were summoned by the Court to stand trial, shelf-life of the insecticide in question had expired and since the period of shelf-life of the insecticide in question expired, therefore, no question arises to send the sample for retesting to the Central Insecticide Laboratory.
16. It maybe stated here that the procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the right to seek dismissal of the complaint. Then, in order to safeguard the right of the accused to have the sample tested from the Central Insecticide Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost.
17. In the present case, though the complaint was filed within time, but the accused petitioners were not served with the summons within expiry date of insecticide in question and thus, by the time the accused petitioners were asked to appear before the Court, the expiry date of the insecticide in question was already over and sending of the sample to the Central Insecticide Laboratory at that late stage would be of no consequence. Therefore, in view of Section 24(3) and 24(4) of the Act of 1968, the report of the insecticide Analyst dated 13.8.1990 is not conclusive. For that the decision of the Hon'ble Supreme Court in State of Haryana v. Unique Farmaid (P) Ltd., 1999 SCC (Cri.) 1404, may be referred to.
18. This Court in Bayer India Ltd. and Anr. v. State of Rajasthan and Ors., 1997 WLC (Raj.) UC 630, RLW 1997(2) Raj. 946, has held that if by the time of appearance of the accused in Court expiry date of substance had gone, in these circumstances, it was useless to have sent the second sample for re-analysis and thus, the accused was deprived of his right conferred by Section 24(4) of the Act of 1968 and in that case, complaint and proceedings were quashed.
19. Thus, it is held that the present accused petitioners have been deprived of their valuable right to get the sample re-tested in the Central Insecticide Laboratory.
20. Now the question that arises for consideration is whether in these circumstances the High Court under inherent powers under Section 482 Cr.P.C. should quash the proceedings or not.
21. The Hon'ble Supreme Court in the case of State of Haryana v. Unique Farmaid (P) Ltd. (supra) has held that in such circumstances, continuation of proceedings would amount to above of the process of the court and thus, the Hon'ble Supreme Court upheld that order of the High Court of Punjab quashing the complaint.
22. The Hon'ble Supreme Court in State of Punjab v. National Organic Chemical Industries Ltd., 1997 Cr.L.R. (SC) 246, has held that accused of that case was entitled to get one sample examined independently and in absence of this, he was deprived statutory defence and in that case also, the Hon'ble Supreme Court quashed the proceedings.
23. In M/s. Arti Minerals v. State of Rajasthan, 1992 Cr.L.R. (Raj.) 59, this Court held that if the date of expiry of the sample had already passed before the accused was summoned and sample could not be re-analysed, then the right other accused to get the sample re-tested is denied and in these circumstances, the proceedings were quashed.
24. In Babulal Agarwal and Anr. v. Associate Director and Ors., 1999 Cr.L.J. (Raj.) 3794, where notice regarding report of analyst served on petitioners manufacturers after date of expiry of shelf life of insecticides and in these circumstances, this Court held that petitioner were deprived of their valuable right of retesting of insecticide by Central Insecticide Laboratory and proceedings in that case were quashed.
25. This Court in Cyanamid Agro India Ltd. and Anr. v. State of Rajasthan and Anr., 2000 (2) RCC 1463, RLW 2000(3) Raj. 1779, has held that as the sample was not sent for retesting despite timely request of the accused petitioners, therefore, they were deprived of their right to get the sample retested under Section 24(4) of the Act of 1968 and the proceedings were quashed in exercise of powers under Section 482 Cr.P.C.
26. This Court in another decision in Mohanlal v. State of Rajasthan, 2000 Cr.L.R. (Raj.) 2623, has held that if the accus'ed was deprived of his right of retesting of the sample by the Central Insecticides Laboratory despite his request to get it examined by the said Laboratory, the proceedings against the accused are nothing but abuse of process of the Court.
27. Looking to the above authorities, since in the present case also, the present accused petitioners have been deprived of their right to get the sample of insecticide in question re-tested by Central Insecticide Laboratory, therefore, the proceedings against them are nothing put abuse of the process of court and are liable to be quashed in exercise of the powers under Section 482 Cr.P.C.
For the reasons stated above, this petition filed by the petitioners under Section 482 Cr.P.C. is allowed and the proceedings of criminal case No..77A/91 State v. merta Krishak Kraya Vikrya Sahakari Samiti, Merta City and ors. for the offence under Section 29 of the aCt of 1968 pending in the Court of Judicial Magistrate First Class, Merta City so far as they relate to the present accused petitioners, are quashed.