Northern Minerals Ltd. and anr. Vs. State of Haryana - Court Judgment

M.L. Singhal, J.

1. On 26.6.1991 Quality Control Inspector drew a sample of Phorate 10-G, Batch No. 2524, manufactured by M/s Northern Minerals Ltd. (petitioner No. 1) from M/s Om Seed Store, Purani Sabzi Mandi, Yamuna Nagar (petitioner No. 2). The date of manufacture of Phorate 10-G Batch No. 2524 was March, 1991 and the date of expiry of the shelf life was February, 1992. The sample was sent for analysis to Insecticides Testing Laboratory, Karnal. The Senior Analyst, State Quality Control Laboratory, Karnal vide report dated 10.6.1991 (Annexure P-2) found the sample misbranded. On 24.9.1991 two separate show cause notices were issued to the petitioners. A copy of one of the show cause notices were received on or about 29.7.1991 by them. Vide show cause notices, petitioners were called upon to explain as to why the sample of insecticide seized on 26.6.1991 from the business premises of M/s Om Seed Store, Purani Sabzi Mandi, Yamuna Nagar-petitioner No. 2 by the Quality Control Inspector was misbranded and why action be not taken against them under the Insecticides Act, 1968? Petitioner No. 1 gave reply Annexure P-4 to the show cause notice, requesting the Licensing Officer-cum-Deputy Director of Agriculture, Ambala that they were not satisfied with the analysis of the sample carried out by the Senior Analyst, Quality Control laboratory, Karnal and that the other sample be sent to the Central Insecticides Laboratory for analysis under the provisions of section 24 (3) and (4) of the Insecticides Act, 1968 and the rules framed thereunder and that they would be bearing expense for the re-analysis of the sample. Similar is the reply (Annexure P-4/A) to the show cause notice sent by M/s Om Seed Store (petitioner No. 2). The Licensing Officer-cum-Deputy Director of Agriculture, Ambala informed M/s Om Seed Store through letter-Annexure P-5 that the sample could be sent for re-analysis to the Central Insecticides Laboratory only by the Court. Through letter Annexure P-6 addressed by petitioner No. 1 to the Licencing Officer-cum-Deputy Director, Ambala, petitioner No. 1 reiterated that Phorate 10-G Batch No. 2524 manufactured by them is well known for its quality and efficacy in the State of Haryana and as, to date, there was no complaint regarding its quality and that permission be obtained from the Court so that the sample could be sent for re-analysis in accordance with the provisions of section 24 (3) and (4) of the Insecticides Act, 1968 and the rules made thereunder. Petitioner No. 2 made an application Annexure P-7 dated 26.9.1991 to the Ilaqa magistrate, Jagadhri praying that the sample be sent for re-analysis to the Central Insecticides Laboratory. The State of Haryana put in reply Annexure P-8 to this application and opposed the reanalysis of the sample by the Central Insecticides laboratory, saying that the sample had already been tested by the Quality Control Laboratory, Karnal which is well equipped and manned by qualified technical staff and is duly notified by the State Government under the Insecticides Act, 1968 and that the request for re-analysis of the sample from the Central Insecticides laboratory, is not maintainable. On these allegations, the petitioners have prayed for the quashing of complaint (Annexure P-10,) instituted on 24.12.1991 in the Court of Judicial magistrate, Jagadhri under section 29 of the Insecticides Act, 1968 and the rules made thereunder for the violation of Section 3(k)(i) of the Insecticides Act, 1968, urging that they have been deprived of their valuable right granted to them under Section 24(3) of the Insecticides Act for no fault on their part and therefore the complaint is not maintainable. The complaint was instituted in the Court on 24.12.1991. The shelf life of the insecticide expired on February, 1992. Petitioner No. 2 was served on or about 15.7.1992 while petitioner No. 1 was served on or about 15.6.1996. No useful purpose would have been served if the request had been made to the Court after their service that sample be got re-analysed from the Central Insecticides Laboratory because shelf-life of the insecticide had expired much earlier in February, 1992.

2. Respondent-State of Haryana has opposed the prayer for quashing of the complaint, urging that these pleas can well be taken before the Court at the time of frame of charge. The sample was analysed in the State Testing Laboratory, Karnal which is fully equipped for the proper testing of the sample.

3. I have heard learned counsel for the petitioners, learned counsel for the State of Haryana and have gone through the record.

4. So far as factual position is concerned, that is not in dispute. The sample was taken on 26.6.1991. It was found misbranded by the Senior Analyst, State Quality Control Laboratory (Insecticides), Karnal vide report Annexure P-2. A show cause notice Annexure P-3 was given to petitioner No. 2 on 24.7.1991 calling upon them to show cause why action be not initiated against them under the Insecticides Act, 1968 when the sample of insecticide seized from them on 26.6.1991 had been found misbranded. Similar show cause notice was given to petitioner No. 1. Petitioner No. 1 in reply to the show cause notice requested the Licensing Officer-cum-Deputy Director of Agriculture, Ambala for re-analysis of the sample. Similar request was made by M/s Om Seed Store, (petitioner No. 2). The sample was not sent to the Central Insecticides Laboratory by the Licensing Officer-cum-Deputy Director of Agriculture, Ambala despite the request by petitioner No. 1 and petitioner No. 2 respectively. The licensing Officer cum-Deputy Director of Agriculture, Ambala informed the petitioners that the sample could be sent for re-analysis to the Central Insecticides Laboratory only by the Court. On 26.9.1991 a request was made by petitioner No. 2 to the Court of Ilaqa Magistrate that sample be sent for re-analysis to the Central Insecticides Laboratory in the interest of justice. This request was opposed by respondent (Quality control Inspector) through reply Annexure P-8. It is thus clear that every effort was made by petitioners to have the sample reanalysed from the Central Insecticides Laboratory.

5. Section 24 of the Insecticide Act, 1968 reads as follows:

'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 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.'

6. It is clear from the bare reading of the provisions of Section 24 of the Insecticides Act, 1968 that right given for re-analysis of the sample is a valuable right which cannot be taken away by the prosecution. If this guarantee to the accused, is taken by the prosecution for no fault of the accused, there is denial of the protection granted to the accused by Article 21 of the Constitution of India. Immediately, on receipt of show cause notices alongwith report, petitioners had intimated the respondent that report of Senior Analyst was not acceptable to them, as the same was not correct and the counter sample be got analysed from another laboratory. In this case the accused made request to the Court also before the institution of the complaint that the sample be got analysed from the Central Insecticides Laboratory, as they were not satisfied with the result of analysis recorded by the Senior Analyst, Quality Control Laboratory, Karnal. This request was opposed by the respondent-State of Haryana. By making an application to the Court before the institution of the complaint that the sample be got analysed from the Central Insecticides Laboratory, the accused have established their bonafides.

7. The complaint was instituted on 24.12.1991 when the following order was passed by the Court:

'Complaint presented today. It be checked and registered. Notice to accused be issued for 7.4.1992.'

On 7.4.1992 the following order was passed :

'Notice to accused not issued. Be issued for 6.8.1992'

Petitioner No. 1 was served on or about 15.7.1992

Petitioner No. 2 was served in June, 1996.

In other words the petitioner was served after February, 1992. The shelf life of the insecticide had expired in February, 1992. It was held in S.K. Ahooja v. State of Haryana, 1989(1) Recent Criminal Reports, 596 that where the accused was summoned by the Court after the expiry of shelf life of the insecticide, this deprived the accused of his right to get the second sample anaylsed by the Central Insecticides Laboratory under Section 24(4) of the Act.

8. It was held in Municipal Corporation of Delhi v. Ghisa Ram, (1967)69 P.L.R. 300 (S.C.) that when the accused is denied the right to have the sample re-analysed on account of deliberate conduct of the prosecution, the case cannot be decided against him, as he is so seriously prejudiced and that it would not be proper to uphold his conviction on the basis of the report of Public Analyst. This principle is applied to the cases where the conduct of the prosecution has resulted in the denial to the accused of an opportunity to exercise this right.

9. In Jhajhan Lal Gupta v. State of Haryana, 1996(3) Recent Criminal Reports, 42, it was held that where a sample of insecticide was found misbranded by the Analyst and the accused was informed of the report of Analyst and the accused challenged the report of the Analyst and requested the Department to sent the counter sample for analysis to the Central Insecticides Laboratory and it was not done and in the challan accused was summoned when shelf life of the insecticide had expired, this deprived the accused of his valuable right to defend which is fatal to his prosecution.

10. In this case, thus, the petitioners stood deprived of their valuable right granted to them by Section 24(4) of the Insecticides Act, to have the second sample analysed from the Central Insecticides Laboratory and therefore, the report of Insecticides Analyst labelling the sample misbranded cannot be acted upon.

11. For the reasons recorded above, this criminal miscellaneous petition is accepted and the complaint Annexure P-10 is quashed.