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M/S FAUJI SEWA CENTRE, HANUMAN CHOWK, GU versus THE STATE OF PUNJAB & ANR

High Court of Punjab and Haryana, Chandigarh

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M/S Fauji Sewa Centre, Hanuman Chowk, Gu v. The State of Punjab & Anr - CRM-460-m-1993 [2006] RD-P&H 2286 (4 April 2006)

Crl.M.No.460-M of 1993

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Crl.M.No.460-M of 1993

Date of decision: 10.01.2006

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M/S Fauji Sewa Centre, Hanuman Chowk, Gurdaspur and others.

.... Petitioner(s)

Versus

The State of Punjab and another

.... Respondents

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CORAM: HON'BLE MRS.JUSTICE NIRMAL YADAV
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Present:- Mr. P.S.Patwalia, Sr.Advocate, with Mr. TPS Chawla, Advocate, for the petitioner.

Mrs.Ravinder Kaur Nihalsinghwala, DAG, Punjab.

JUDGMENT

Petitioners No. 1 and 2, retailers and petitioners No. 3 to 7, distributors, dealing in the sale of insecticides and pesticides filed petition under Section 482 Cr.P.C for quashing of the complaint Annexure P/1 dated 14.9.1990 filed by the Insecticides Inspector, Gurdaspur and subsequent proceedings taken thereunder, pending in the Court of Chief Judicial Crl.M.No.460-M of 1993

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Magistrate, Gurdaspur.

On 30.11.1988, Lakhbir Singh, Insecticides Inspector, checked the premises of M/s Fauji Sewa Centre, Hanuman Chowk, Gurdaspur. He allegedly took samples of Isoproturon 75% WP (Milron) Batch No. 52, manufactured by Montari Industries Limited, Nehru Place, New Delhi. The said weedicide was supplied to M/s Fauji Sewa Centre by M/s Goel Rice Mills, Gurdaspur, vide Bill No. 109 dated 22.11.1988. Notice Annexure P/2 was served on Shri Neelam K.Kalia, proprietor of the firm petitioner No.2, which was duly signed by him. Thereafter three packets of `Isoproturon' were purchased against Bill No.71 dated 30.11.1988, Annexure P/3 for Rs.

420/-. The said bill was attested by the complainant and signed by Neelam K.Kalia, proprietor of the firm. The sealed packets so purchased were put in three dry and clean polythene bags and information slip was also put in each of the polythene bags which was signed by Neelam K.Kalia and the complainant. The three polythene bags were duly secured by thread and were sealed. One portion of the same was given to proprietor of the firm.

Notice and form No. XII was also given to him, which was duly attested by the complainant. Sealing impression was put on each of this form prepared in duplicate. One portion of the sample was despatched to the Senior Analyst, Insecticides Testing Laboratory, Department of Agriculture, Punjab, Ludhiana for analysis vide letter No. 19834 dated 30.11.1988.

Crl.M.No.460-M of 1993

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Report of the Analyst Annexure P/4 of the sample of insecticide was received on 2.1.1989. Its copy along with the show-cause notice Annexure P/3 was given to the petitioners vide letter No.202 dated 6.1.1989. As per the report the weedicide was found to be misbranded and as such the petitioners are said to have committed offences punishable under Sections 17, 18, 29 and 33 of the Insecticides Act, 1968, hereinafter referred to as the Act. Show cause notice dated 9.1.1989 Annexure P/3 was sent to M/s Goel Rice Mills, Gurdaspur. Petitioner No.1 i.e. Fauji Sewa Centre, submitted reply, Annexure P/4, on 30.1.1989, stating that neither the sample was sealed in the presence of the petitioner nor one portion of sample was handed over to them. It is further submitted that even the brand name of the insecticide has been mentioned as `nocilon' in the report, whereas the sample is alleged to have been taken of `milron'. Therefore, the charges in the show-cause notice are not substantiated. Complaint was filed on 24.9.1990, six days after the expiry of the shelf life of the sample.

Petitioners No. 1, 2 and 3 were also served after the expiry of the shelf life of the sample i.e after September, 1990. Petitioners No. 5 to 7 were not served even upto the filing of the petition. The petitioners are alleged to have been denied the valuable right of having the sample re-analysed from the Central Insecticides Laboratory as directed under the provisions of Section 24(4) of the Act.

Crl.M.No.460-M of 1993

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After issuance of the notice of the petition, the Insecticides Inspector submitted his reply. In the reply it is stated that the petitioners in their reply to the show cause notice have admitted having received form No.

XII, wherein the name of the insecticide is clearly mentioned as `milron'. It is further stated that the sample was taken from the premises of M/s Fauji Sewa Centre, after following due procedure as per the provisions of the Act.

One portion of the sample along with form No. XII was given to Neelam K.Kalia in the presence of the witness Tarsem Lal. It is further stated that the petitioner had the opportunity to get the sample re-analysed as per Section 24(3) of the Act as he had been given one portion of the sample by the Insecticides Inspector well in time. None of the accused persons notified in writing in reply to the show cause notice to the Insecticides Inspector or to the Court concerned within 28 days from the receipt of copy of the report of the Government Analyst that they intend to adduce evidence in controversion of the report.

I have heard learned counsel for the parties and have gone through the records.

At the outset, it would be necessary to refer to the provisions of Section 24 of the Insecticides Act, 1968, as under:- " 24. Report of Insecticide Analyst :-

(1)xx xx xx xx

Crl.M.No.460-M of 1993

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(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 Insecticide Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of the Insecticide Analyst 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 laboratory, which shall make the test or analysis and report in Crl.M.No.460-M of 1993

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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.

(4) xx xx xx"

Learned counsel for the petitioners argued that the complaint has been filed after expiry of the shelf life of the insecticide. The insecticide was manufactured in the month of October, 1988 and its expiry was in the month of September, 1990. Complaint was filed by the Insecticides Inspector on 24.9.1990. Petitioner No.2 was served on 7.9.1991. Petitioner No.4 was served in April, 1992 and other petitioners were not even served till the filing of this petition. He, therefore, argued that the summoning order was issued after the expiry date of the insecticide. As per sub-clause (4) of Section 24 of the Act, the petitioners could make a request to the Magistrate for sending the sample for test or analysis to the Central Drugs Laboratory only after the petitioners were served. The petitioners were, therefore, deprived of their valuable right of getting the sample re-analysed from the Central Drugs Laboratory. In support, the learned counsel placed reliance on the cases of Mr.H.Lange, a German National, Managing Director, M/s Byer (India) Ltd. Versus The State of Punjab and another, 1986(1) RCR 176; The State of Punjab Versus National Organic Chemical Crl.M.No.460-M of 1993

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Industries Ltd., JT 1996(10) S.C.480; Amrit Lal Versus State of Punjab, 2001(1) RCR (Criminal) 599 and Delta Insecticides Limited Versus State of Punjab, 2001(1) RCR (Criminal) 614.

On the other hand, learned State counsel argued that right to get the sample examined by the Central Drugs Laboratory through the Court arises only after the person concerned notifies in writing to the Inspector or the Court concerned within 28 days from the receipt of copy of the report of the Government's Analyst that he intends to adduce evidence in controversion of the report. According to her, report was sent alongwith show-cause notice to petitioners No. 1 and 2 vide letter No. 202 dated 6.1.1989 Annexure P/2 and similarly it was sent to M/s Goel Rice Mills vide letter No. 231 dated 9.1.1989. In response to the show cause notice, no reply was received from M/s Goel Rice Mills. However, petitioner No.1 submitted reply Annexure P/4. In the said letter, the petitioner did not opt to exercise its right to get the sample re-analysed. It is only stated that different name of the insecticide is mentioned in the report than the complaint and, therefore, no charge is made out against the petitioners. The petitioners failed to notify to the Inspector that they intended to adduce evidence in controversion of the report by getting the sample tested from the Central Drugs Laboratory. In these circumstances, the report of the Government Analyst became conclusive evidence as per Section 24(3) of Crl.M.No.460-M of 1993

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the Act. As such, the delay in filing the complaint till the expiry of the shelf life of the drug could not be a ground for quashing the complaint or the proceedings in pursuance thereto. The learned counsel referred to a judgment of the Apex Court in State of Haryana Versus Brij Lal Mittal and others, AIR 1998 Supreme Court 2327, wherein it has been held as under:- "At the risk of repetition, we wish to emphasise that the right to get the sample examined by the Central Drugs Laboratory through the Court before which the prosecution is launched arises only after the person concerned notifies in writing the Inspector or the Court concerned (here the latter clause did not apply for the prosecution was yet to be initiated) within twenty eight days from the receipt of the copy of the report of the Government Analyst that he intends to adduce evidence in controversion of the report.

Xx xx xx

It must, therefore, be said that consequent upon their failure to notify the Inspector that they intended to adduce evidence in controversion of the report within 28 days, not only the right of the manufacturers to get the sample tested by the Central Drugs Laboratory through the Court concerned stood extinguished but the report of the Government Analyst also became conclusive Crl.M.No.460-M of 1993

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evidence under sub-section (3). The delay in filing the complaint till the expiry of the shelf life of the drugs could not, therefore, have been made a ground by the High Court to quash the prosecution. It will not be out of place to mention that the manufacturers' right under sub-section (3) expired four months before the expiry of the shelf life of the drugs. In view of the above discussion, the reasoning of the High Court for quashing the prosecution against the three respondents cannot at all be sustained."

Learned counsel for the petitioners argued that a portion of the sample was not handed over to them at the time of taking the alleged sample from the premises. This argument of the learned counsel appears to be correct. In Form No. XII, Annexure P/5, it find mentioned as under:- " I certify that the sample have been drawn and sealed according to the prescribed procedure for drawing sample of Weedicide 75% WP, I have handed over part of the sample duly sealed to the dealer, under his signatures.

Sd/- Insecticide Inspector

Gurdaspur. 30.11.88"

From the above, it cannot be inferred that a portion of the sample was handed over to the dealer or the proprietor of the firm, as the form No.XII Crl.M.No.460-M of 1993

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does not bear signatures of any one of them which could support the contention of the Insecticide Inspector that a portion of the sample was handed over to Neelam K.Kalia at the time of taking the sample. Even in the complaint it does not find mention that the signatures of Neelam K.Kalia were obtained or he had refused to put his signatures on Form No.XII for receiving a portion of the sample. Since there is no evidence to prove that a portion of the sample was handed over to the dealer or the proprietor of the firm by the Insecticide Inspector, therefore, it was not possible for the petitioners to notify to the Inspector or the Court to have the sample re- analysed from the Central Drugs Laboratory as per the provisions of Section 24(3) of the Act.

From a bare reading of the provisions sub-section (3) of Section 24 of the Act, it is manifest that the report of the Government Analyst shall be the conclusive evidence of fact unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under Section 18(1)(a) of the Act has, within 28 days of the receipt of the report notified in writing to the 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. Sub-section (4) further makes it clear that the right to get the sample tested by the Central Government Laboratory through the Court accrues to a person only if he had Crl.M.No.460-M of 1993

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earlier notified in accordance with the provisions of sub-section (3) his intention of adducing evidence to controvert the report of the Government Analyst.

In the present case neither the third portion of the sample is proved to have been given to the petitioners nor any action was taken by the Insecticide Inspector to have the sample re-tested from the Central Drugs Laboratory till the expiry of the shelf life of the insecticide and as such the petitioners were deprived of their valuable right of their defence. The Apex Court in the case of State of Haryana Versus Unique Farmaid P.Ltd. , 1999 (4) RCR (Criminal) 540, observed as under:- " Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no Crl.M.No.460-M of 1993

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consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT 1996(10)SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost despatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of his Court in State of Haryana v. Brij Lal Mittal & others, 1998 (2) RCR (Crl.) 608: 1988(5) SCC 343 under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970; Chetumal v. State of Madhya Pradesh & another, 1981(3) SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf & another, 1999(1) RCR Crl.M.No.460-M of 1993

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(Crl.) 699: 1999(2) SCC 400 all under the Prevention of Food Adulteration Act, 1954."

It would be gain saying that the petitioners have been deprived of their valuable right to have the sample re-analysed from the Central Drugs Laboratory under sub-section (4) of Section 24 of the Act. The petitioners could not notify to the Inspector or the Court within 28 days of the receipt of the report that they intended to adduce evidence to controvert report as a portion of the sample is not proved to have been delivered to them at the time of taking of the alleged sample. By the time the matter reached the Court, the shelf life of the sample had already expired. Therefore, no purpose would have been served informing the Court of intention of the petitioners for re-analysing the sample. In these circumstances, it would be an abuse of process of the Court if the prosecution is continued against the petitioners.

In view of the above discussion, this petition is allowed and consequently complaint Annexure P/1 filed against the petitioners and further proceedings in pursuance thereof are hereby quashed.

( Nirmal Yadav)

JUDGE

January 10, 2006.

Saini

Note: Whether to be referred to Reporter: Yes/No


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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