ORDER
Sunil Kumar Garg, J.
1. This criminal misc. petition under Section 482, Cr. P.C. has been filed by the petitioners, who are distributors as well as manufacturers with the prayer that the proceedings of criminal case No. 160/83 State v. Kishan Beej Bhandar for the offence under Section 17(1)(a) punishable under Section 29(1)(a) of the Insecticides Act, 1968 (hereinafter referred to as 'the Act of 1968') pending in the Court of Addl. Chief Judicial Magistrate, Sangaria be quashed.
2-3. It arises in the following circumstances :--
On 14-6-1983, a complaint was filed by Insecticide Inspector, Hanumangarh in the Court of Judicial Magistrate, Ist Class, Sangaria against the present petitioners, who are Distributors as well as manufacturers and apart from them, against M/s. Kishan Beej Bhandar, Sangaria and Kewal Krishan c/o M/s. Kishan Beej Bhandar, Sangaria, who are dealers of the insecticides in question. It was stated in the complaint that on 9-8-1992, Insecticide Inspector, Hanumangarh took sample of the insecticide Endosulfan 35% BHC 10% from M/s. Kishan Beej Bhandar, Sangaria, who was dealer and prepared the fard and in that fard of search, it was also stated that batch number of the insecticide was 130 and date of manufacturing was July 1982 and date of expiry was July 1984 and he divided the sample into three parts as required by law. One of the samples was sent for analysis to the Rajasthan State Quality Control (Pesticide) Laboratory, Durgapura, Jaipur and the Insecticide Analyst, Rajasthan State Quality Control (Pesticide) Laboratory, Jaipur gave his report on 5-10-1982, in which it was reported that the sample did not confirm to I.S. specification No. 4323-1967 in Active Ingredient and hence, it was misbranded.
When the sample was not found in accordance with the prescribed standard, a notice dated 19-10-1982 was given by the Assistant Plant Protection Officer, Hanumangarh to M/s. Kishan Beej Bhandar, Sangaria, from whom, sample was taken. After obtaining sanction for prosecuting Shri Kewal Krishan C/o M/s. Kishan Beej Bhandar, Sangaria and present accused petitioners, the present complaint was filed on 14-6-1983.
On this complaint, the learned Judicial Magistrate 1st Class, Sangaria vide order dated 13-9-1983 took cognizance against the present petitioners and others mentioned in the complaint for the offence under Section 17(1)(a) punishable under Section 29(1)(a) 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 13-9-1983, summons were issued against the present petitioners and others for appearance, but the case was adjourned from time to time and despite order to issue summons, summons were not issued and for the first time, summons were issued on 22-7-1985.
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 along with the report of the Insecticide Analyst was given to the present accused petitioners by the Insecticide Inspector, therefore, they have lost the valuable right given 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 1982 and date of expiry was July 1984 and till then the accused petitioners were not served either with the Court notice or notice on behalf of the Insecticide Inspector and therefore, the 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, 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 forwarded 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 Insecticide Inspector, Hanumangarh on 9-8-1982 from M/s. Kishan Beej Bhandar, Sangaria, who was dealer and this accused is not party in this petition.
(2) That manufacturing date of the sample, which was taken from M/s. Kishan Beej Bhandar, Sangaria on 9-8-1982, was July, 1982 and its expiry date was July, 1984.
(3) That the said sample was sent to the Rajasthan State Quality Control (Pesticide) Laboratory, Durgapura, Jaipur for analysis and the Insecticide Analyst gave his report on 5-10-1982 and found that the sample was misbranded.
(4) That thereafter, a notice along with the report was given by Assistant Plant Protection Officer, Hanumangarh to M/s. Kishan Beej Bhandar, Sangaria on 19-10-1982.
(5) That on 14-6-1983, a complaint was filed in the Court of Judicial Magistrate 1st Class, Sangaria against the present petitioners and others mentioned in the complaint.
(6) That on this complaint, cognizance was taken by the learned Judicial Magistrate Ist Class, Sangaria on 13-9-1983 against the accused petitioners and others and up to July, 1984, the date of expiry of sample, the present petitioners were not served with the summons of the Court.
10. The Hon'ble Supreme Court in Amery Pharmaceuticals v. State of Rajasthan (2001) 4 SCC 382 : 2001 Cri LJ 1686 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 misbranding sample.
11. Thus, under law, Insecticide Inspector is bound to give notice along with copy of the report of the Insecticide Analyst to the dealer and distributors as required by Section 24(2) of the Act of 1968.
12. The Hon'ble Supreme Court in the case of Amery Pharmaceuticals (2001 Cri LJ 1686) (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 32-A of the Drugs and Cosmetics Act, 1940, as it would amount to violation of right under Article 21 of the Constitution of India.
13. 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 Pharmaceuticals'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.
14. In the present case, no notice was given to present accused petitioners by the Insecticide Inspector, Hanumangarh and he filed the complaint in the Court of Judicial Magistrate, Ist Class, Sangaria and by that time the accused petitioners were summoned by the Court to stand trial, self-life of the insecticide in question had expired and since the period of self-life of the insecticide in question expired, therefore, no question arises to send the sample for re-testing to the Central Insecticide Laboratory.
15. It may be 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.
16. 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 5-10-1982 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 : 2000 Cri LJ 2962 may be referred to.
17. This Court in Bayer India Ltd. v. State of Rajasthan 1997 WLC UC 630 (Raj) 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.
18. 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.
19. 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.
20. The Hon'ble Supreme Court in the case of State of Haryana v. Unique Farmaid (P) Ltd. (2000 Cri LJ 2962) (supra) has held that in such circumstances, continuation of proceedings would amount to abuse of the process of the Court and thus, the Hon'ble Supreme Court upheld the order of the High Court of Punjab quashing the complaint.
21. The Hon'ble Supreme Court in State of Punjab v. National Organic Chemical Industries Ltd. 1997 Cr LR (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.
22. In Arti Minerals v. State of Rajasthan 1992 Cr LR 59 (Raj), 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 of the accused to get the sample re-tested is denied and in these circumstances, the proceedings were quashed.
23. In Babulal Agarwal v. Associate Director, 1999 Cri LJ 3794 (Raj) where notice regarding report of analyst served on petitioners manufacturers after date of expiry of self-life of insecticides and in these circumstances, this Court held that petitioners were deprived of their valuable right of retesting of insecticide by Central Insecticide Laboratory and proceedings in that case were quashed.
24. This Court in Cyanamid Agro India Ltd. v. State of Raj. (2000) 2 Raj Cri C 1463 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.
25. This Court in another decision in Mohanlal v. State of Rajasthan 2000 Cri LJ 2623 (Raj) had held that if the accused 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.
26. 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 but 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. 160/83 State v. Kishan Beej Bhandar for the offence under Section 17(1)(a) punishable under Section 29(1))(a) of the Insecticides Act, 1968 pending in the Court of Addl. Chief Judicial Magistrate, Sangaria, so far as. they relate to the present accused petitioners, are quashed.