Joshi, J.
1. The instant petition under Section 482 Cr.P.C. has been filed by the manufacturing company M/s. United Phospherus Limited and its Directors against the order of the learned Judicial Magistrate, First Class, Gharsana in criminal original No. 478/94 dated 19th October, 94 taking cognizance against the petitioners under Section 29 of the Insecticides Act, 1968 (in short, 'the Act') hereinafter) and the present petitioners alongwith other accused were summoned.
2. Heard Mr. M.K. Garg, learned counsel for the petitioner and Mr. D.D. Kalla, learned Public Prosecutor for the State.
3. As per averments and the complaint filed before the trial Court, Shri Mahesh Roop Rai, Insecticide Inspector on 28.8.93, took a sample of Fenvelrate 20% E.C. from the shop of M/s. Shiv Fertilisers, Gharsana District Sri Ganganagar. It was sent to Insecticide Analyst, Durgapura, Jaipur, who in his report dated 21st October, 93 reported that the sample was mis-branded. The complaint was filed against M/s. Shiv Fertilisers and against sellers, distributors and manufacturers.
4. Accused Girdhari Lal gave his appearance on 12th September, 95 and Om Prakash and Gayatri Devi on 8th January, 96.
5. On 29th November, 97, the accused persons Om Prakash, Girdhari Lal and Gayatri Devi moved an application under Section 258 Cr.P.C. to stop the proceedings against them for non-compliance of Section 33 of the Act. Relying on a decision of this Court in R.P. Gupta v. State (1), the learned trial Court accepting the application stopped the proceedings against the accused persons who appeared before him on the ground that the accused were deprived of their right for re-analysis of the sample as the life of the sample had already expired before the service of process of the accused-persons.
6. The sample in the case was taken on 20th August, 93. It was manufactured in the month of January, 1993 and its date of expiry was December, 1994. The complaint was filed in the Court on 19.10.1994 i.e. after the expiry of the shelf-life of the sample and the present petitioners were summoned.
7. The arguments of the learned counsel for the petitioner is two fold: Firstly, that the accused-persons were deprived of their right for re-analysis of the sample. Secondly, there is no allegation in the complaint about complicity of the petitioners in commission of the offence. Therefore, the proceeding against the accused-persons are liable to be dismissed and it would be a futile exercise and the wastage of the public money and the time of the court to pursue such frivolous litigation. If the proceedings before the trial Court are being allowed to be continued, and it would amount to abuse of the process of the Court.
8. The learned Public Prosecutor has supported the order of the learned trial Court and argued that the accused-persons cannot be discharged or acquitted on the sole ground and they are free to raise all these objections before the learned trial Court after their appearance.
9. The learned counsel for the petitioner placed reliance on the following judgments in support of his contention:-
(1) State of Punjab v. National Organic Chemical Industries (2);
(2) State of Haryana v. Unique Farmaid (P) Ltd. (3);
(3) Nagpal Agro System v. State of Rajasthan (4);
(4) Bharat Insecticides Ltd. v. State of Rajasthan (5)
(5) Gupta Chemical v. State of Rajasthan (6);
(6) Synamid Agro India Ltd. v. State of Rajasthan (7);
(7) S.N. Chemicals v. State of Rajasthan (8);
(8) Babu Lal Agrawal v. Associate Director (9);
(9) Gupta Chemical Pvt. Ltd. v. State of Rajasthan (10);
(10) Bharat Insecticides v. State of Rajasthan (11);
(11) Hindustan Ciba Geigy Ltd. v. State of Rajasthan (12);
(12) Chaudhary Krishi Udhyog v. State of Rajasthan (13)
(13) Pesticides India Ltd. v. State (14)
(14) Bayer India Ltd. v. State (15);
(15) Hari Singh & Anr. v. State of Rajasthan (16)
(16) Hargovind Rajkumar v. State (17)
10. Besides the above ruling and judgments, the following judgments were also perused by the Court:-
(A) Municipal Corporation v. Gheesa Ram (18);
(B) Y.S. Rao v. Deputy Director (19)
(C) S.K. Ahuja v. State of Rajasthan (20)
(D) U.S. Madan v. State (21)
(E) Arti Minerals v. State (22)
(F) Agrawal Khad Bhandar v. State of Rajasthan (23)
(G) K.K. Bagla v. Superintendent, excise (24)
(H) Pesticides v. State (25)
(I) R.P. Gupta v. State (26)
(J) Tarachand v. State (27)
(K) Jayshree Agro v. State (28)
(L) Rallies v. Stale (29)
(M) Rallies v. State (30)
(N) Ameri Pharmaceuticals v. State of Rajasthan (31)
(O) Gupta Chemicals v. State (32)
11. To appreciate the rival contentions made at the bar, the relevant provisions of the Act are as under:-
Section 16 of the Act lays down that the Central Government may, by notification in the official gazette, establish a Central Insecticides Laboratory under the control of a Director to be appointed by the Central Government to carry out the functions entrusted to it by or under the Act.
Provided that the Central Government so directs by a notification in the official gazette, the functions of the Central Insecticide Laboratory shall, to such extent as may be specified in the notification, be carried out at any such institution as may be specified therein and thereupon the functions of the director of the Central Insecticides Laboratory shall to the extent so specified be exercised by the head of that institution.
12. Section 17 of the Act deals with the import and manufacture of certain insecticides, which reads as under:-
'17. Prohibition of import and manufacture of certain insecticides.-
(1) No person shall, himself or by any person on his behalf, import or
(a) any mis-branded insecticides;
(b) any insecticide the sale, distribution or use of which is for the time being prohibited under Section 27;
(c) any insecticide except in accordance with the conditions on which it was registered;
(d) any insecticide in contravention of any other provision of this Act or of any rule made thereunder:
Provided that any person who has applied for registration of an insecticides under any of the provisos to Sub-section (1) of Section 9 may continue to import or manufacture any such insecticide and such insecticide shall not be deemed to be a mis- branded insecticide within the meaning of Sub-clause (vi) or Sub-clause '(vii) or Sub-clause (viii) of Clause (k) of Section 3, until he has been informed by the Registration Committee of its decision to refuse to register the said insecticide. (2) No person shall himself or by any person on his behalf, manufacture any insecticide except under, and in accordance with the conditions of a licence issued for such purpose under this Act.
13. Section 18 of the Act deals with the prohibition of sale etc. of certain insecticides, which reads as under:
'18. Prohibition of sale, etc. of certain insecticides.--(1) No person shall, himself or by any person on his behalf, sell, stock or exhibit for sale, distribute, transport, use, or cause to be used by any
(a) any insecticide which is not registered under this Act.
(b) any insecticide, the sale, distribution or use of which is for the time being prohibited under Section 27;
(c) any insecticide, in contravention of any other provision of this Act or of any rule made thereunder.
(2) No person shall himself or by any person on his behalf, sell, stock or exhibit for sale or distribute or use for commercial pest control operations any insecticide except under, and in accordance with the conditions of, a licence issued for such purpose under this Act.'
14. Section 19 deals with the Insecticide, Analyst. It lays down that the Central Government or a State Government may, by notification in the official Gazette, appoint persons as may be prescribed to be Insecticide Analyst for such areas and in respect of such insecticides or class or insecticides as may be specified in this notification.
15. Section 20 deals with the appointment of Insecticide inspectors. It describes that the Central Government or a State Government may by notification in the Official Gazette, appoint person in such number as it thinks fit and possessing such technical and other qualifications as may be prescribed to be Insecticide Inspectors for such areas as may be specified in the notification:
Provided that any person who does not possess the required qualifications may be so appointed only for the purpose of Clause (a) and Clause (d) of Sub-section (1) of Section 21: Provided further that no person who has any financial interest in the manufacture, import or sale of any insecticide shall be so appointed.
16. It also provides that every Insecticide Inspector shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, and shall be officially subordinate to such authority as the Government appointing him may specify in this behalf.
17. The Rajasthan State Government by its notification No. F4(24) Agri./Gr.II/A/75 dated 2nd February, 1981, S.O. No. 149, which was published in Rajasthan Gazette, Extraordinary, Part IV-C(ii) dated 2.2.81, at page 223, in exercise of powers conferred upon it under Section 19 of the Act and the Rules, declared the Assistant Insecticides samples in the Quality control Insecticides Laboratory, Jaipur and authorised him to send result and report for that purpose. Thus, in the State of Rajasthan, the Quality Control Insecticide Laboratory, Durgapura, Jaipur has been established and the Analyst thereof has been empowered for the analysis of insecticide samples.
18. Section 21 of the Act describes powers of the Insecticide Inspector. Clause (e) of Sub-section (1) of Section 21 proclaims that the Insecticide Inspector shall have power to take samples, of any insecticide and send such sample for analysis to the Insecticide Analyst for test in the prescribed manner. Rule 2 7 of the Rules enumerates the duties of the Insecticide Inspector and empowers him to procure and send for test to the Analyst the sample of insecticide which he has reasons to suspect are being sold, stocked or accepted for sale in contravention to the provisions of the Act or Rules made thereunder. Rule 28 deals with the duties of the Inspector specially authorised to inspect manufacture of insecticides and lays down that it shall be the duty of a Inspector authorised to inspect the manufacture of insecticide, to draw samples of insecticides manufactured from the premises and send them for test or analysis in accordance with the Rules. Rule 34 requires that the samples for test or analysis under the Act shall be sent by registered post or by hand, in a sealed packet with memorandum in Form XIII, with an outer cover addressed to the Insecticide Analyst.
19. Section 22 of the Act deals with the procedure to be followed by the Insecticide Inspector and Sub-section (6) thereof requires that after taking the sample of insecticide for the purpose of test or analysis the Insecticide for the purpose of test or analysis the. Insecticide Inspector shall restore one portion of a sample so divided or one container, as the case may be, with the person from whom he has taken the sample and shall retain the remainder and dispose the same as follows:
(i) One portion or container, he shall forthwith send to the Insecticide Analyst for test or analysis; and
(ii) the second, he shall produce to the Court before which proceedings, if any, are instituted in respect of the insecticide.
20. Thus, it is clear from the above provisions that as soon as the Insecticide Inspector takes sample of insecticide for the purpose of test, he shall divide the sample in three portions and if container of the insecticide is of small volume, he shall take three such containers. Thereafter, he shall restore one portion of the sample/container to the person from whom sample has been taken; one portion of container shall be immediately sent by him to the Insecticide Analyst for test or analyst and that, in case Insecticide Analyst reports that the sample does not conform to the prescribed standards or is mis-branded and if after obtaining written consent of the State Government or the competent Authority a criminal complaint is filed, then the third portion/container of the sample shall be produced to the Court before which the proceedings are instituted in respect of such insecticide.
21. Section 24 of the Act deals with the report of the Insecticide Analyst. It will be profitable to reproduce the same:
'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 its signed report in duplicate in the prescribed form.
(2) The Insecticide Inspector on receipt thereof shall deliver one copyof the report to the person from whom the sample was taken andshall retain the other copy for use in any prosecution in respect of thesample.
(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 contravention of the report.
(4) Unless the sample has already been tested or analysed in the Central Insecticide Laboratory, where a person has under Sub-section (3) notified his intention of adducing evidence in contravention 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, 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.'
22. Section 24 of the Act, therefore, lays down that the Insecticide Analyst to whom a sample of the insecticide has been submitted for test or analysis, under Sub-section (6) of Section 22, is required to deliver his report within a period of 60 days to the Insecticide Inspector, in duplicate in the prescribed form. The Insecticide Inspector shall, thereafter 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 that sample. The report of the Insecticide Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive, unless from whom the sample was taken, has within 28 days of the receipt of the copy of the report notified in writing to the Insecticide Inspector or the court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report. The report of the Insecticide Analyst can be challenged or controverted by sending the second sample for test or analysis to the C.I.L. by the Court, either of its own motion or in its discretion at the request either of the complainant or of the accused for test or analysis to the said Laboratory there, which shall make test or analysis and report in writing signed by, or under the authority of the Director, C.I.L., the result thereof and such report shall be conclusive evidence of the facts stated therein.
23. The Insecticides Act, 1968 is a Central Act, which has been enacted to regulate the import, manufacture, sale, transport, distribution arid use of insecticides with a view to prevent risk to human beings or animals and for matters connected therewith.
24. Section 17 of the Act prohibits of import and manufacture of certain insecticides enumerated therein and Section 18 prohibits of sale etc. of certain insecticides mentioned in the section. Section 20 make provisions for appointment of Insecticides Inspectors, possessing such technical and other qualifications as may be prescribed, for different areas as may be specified in the notification of the Central Government or the State Government.
25. Section 29 of the Act deals with the offences and punishment. Section 30 provides for some defences which may or may not be allowed in prosecution under the Act. Section 31 provides for cognizance and trial of the offences and Section 33 deals with the offences committed by the companies.
26. The combined reading of the relevant provisions of the act and the judgments is that the complaint was filed after the shelf-life of the product expired and after expiry of shelf-life, the potency of the product goes, which makes it unfit for re-analysis. Therefore, the accused were deprived of their statutory right available under Section 24(4) of the Act to have the sample re-analysed from Central Insecticides Laboratory and which amounts to violation of Section 24(4) of the Act. It is also necessary that complaint must not only be filed before expiry of shelf-life, but accused persons must also be served as well in time before expiry of shelf-life of the product so that the concerned accused may exercise their right under Section 24(4) of the Act. In support of his arguments, learned counsel has placed reliance on the following judgments:-
(1) Raj Hans Chemicals v. State of Punjab (33)
(2) Bayer India v. State (supra)
(3) Mohan Lal v. State (34)
(4) Gupta Chemicals v. state (35)
(5) B.L. Agarwal v. state (36)
27. Where complaint is filed after the expiry of shelf-life product, the proceedings are liable to be quashed as has been held in the following judgments:-
(a) Hindustan Ciba-Geigy Ltd. v. State (supra)
(b) Ravi Kant v. State of Punjab (37)
(c) Jagdish Chandra v. State of Punjab (38)
(d) State of Punjab v. National Organic Chemical (39)
(e) Bharat Insecticides v. State (supra)
(f) Searle (India) Ltd. v. L.B. Bakolia (40)
(g) State of Haryana v. Unique Farmaind (P) Ltd. (41)
(h) Cyanamid Agro India Ltd. v. State (42)
(i) Pestochem India v. State (42)
(j) Pawan & Company v. State (43)
(k) Nagpal Agro v. State (44)
(l) 2001 Chandigarh Cri. Cases p.45 (45)
(m) 2001 Chandigarh Cri. Cases p.55 (46)
28. Thus, the first argument of the learned counsel for the petitioner is liable to be accepted and is hereby accepted.
29. The second argument of the learned counsel counsel is also of vital importance. He has submitted that the complaint does not mention how the petitioners/directors were incharge of or responsible to the company for conduct of its business. Even, he does not mention how the petitioners were in overall control of day to day business of the company. It also does not mention how offence has been committed by them or is committed with their consent or with their connivance or because of their neglect. Under criminal law, principles of vicarious liability is not applicable. He has placed reliance on the following judgments in support of his arguments:-
(1) Municipal Corporation of Delhi v. Ram Kishan (47)
(2) Krishna Kumar v. B.L. Sharma (48)
(3) S.N. Chemical v. State (49)
(4) Bharat Insecticides Ltd. v. State (supra)
(5) Gupta Chemicals v. State (supra)
(6) Vyapak Puri v. State (50)
(7) Surendra Pal v. State (51)
(8) Rallis India Ltd. v. State (52)
(9) Vyasthapak Krya Vikrya S. Samiti v. State (53)
(10) Arti Minerals v. State (54)
(11) P.R. Neelkantham v. State of Rajasthan (55)
(12) Narendra Kumar v. State of Maharashtra (56)
30. Thus, no purpose will be served by continuing the prosecution, because such proceedings are meaningless and are liable to be quashed. The accused have been deprived of their statutory right available under Section 24(4) of the act and the complaint lacks in material particulars to implicate the present petitioners with the commission of the offence.
31. Accordingly, the petition is hereby allowed. The proceedings pending against the present accused petitioners before the learned Judicial Magistrate, 1st Class, Gharsana in Criminal Original Case No. 478/94 dated 19th October, 94 are nothing but abuse of process of Court and are liable to be quashed and are hereby quashed.