Randeep Paper Board Mills vs State Haryana

Adarsh Kumar Goel, J.

This petition seeks quashing of complaint under the provisions of Essential Commodities Act. In the complaint, it is alleged that on 16.12.1999, the Fertilizer Inspector checked the premises of Malhotra Traders and drew a sample of fertilizer manufactured by the petitioner company. On analysis, the sample was found to be nonstandard. The petitioner made an application for reanalysis of the sample but the same has been rejected by the trial Court on the ground that there was no provision in the concerned fertilizer order entitling an accused to reanalysis and the question whether the sample had been properly analysed shall be seen at appropriate stage. Hence this petition.

It is contended that though there is no provision for retesting, the petitioners were entitled to seek retesting and rejection of application of the petitioners for retesting was not justified. Reliance is placed on M/s Janta Agro Fertilizers v. State of Uttar Pradesh, AIR 1994 Allahabad 164 and an unreported Division Bench judgment of the Allahabad High Court in M/s Agarwal Pesticides and Chemical Industries v. State of Uttar Pradesh, decided on 29.1.1979.

Before considering the question raised, it may be noted that validity of clause 19 of the Fertilizer Control JUDGMENT (hereinafter called the JUDGMENT) was challenged in this Court. Vide judgment dated 16.9.1996, a Single Judge of this Court struck down the Control JUDGMENT on the ground that in absence of opportunity to the accused to get the sample reanalysed, the control order was violative of Article 21 of the Constitution of India. A Division Bench of this Court vide judgment dated 29.7.1997, in The Director, Agriculture, Punjab Chandigarh v. M/s Gurmukh Mal Shibba Mal, 1997(4) RCR(Criminal) 780 reversed the view taken by the Single Judge. The Division Bench observed as under :

"An accused person of course has a right to set up defence in terms of section 293 Cr.P.C. What would be the nature of defence can again be a matter of sheer guess. In any case one could visualise that petitioner would adduce all such evidence so as to prove his innocence. May be he examines another expert to crossexamine the official witness or makes reference to some celebrated authority on law relevant to the point in controversy to establish that the conclusion arrived at by the analyst is indeed impermissible and as a last resort can make out a case for the Court to send the third sample for its analysis by another laboratory. With these safeguards at his command it can be stated that procedure prescribed is neither arbitrary or unreasonable nor unfair."

The view of the Division Bench was upheld by Full Benches of this Court in The Director, Agriculture, Punjab and others v. Narinder Pathak and other, 2000(4) RCR(Criminal) 526 (Punjab and Haryana) (FB) decided on 13.10.1999 and then by the Apex Court in A.S. Parmar v. State of Punjab and others, Civil Appeal No. 1465 of 2001 decided on 27.8.2002.

Coming to the present case, the view taken by the trial Court that since there was no provision for reanalysis the prayer for reanalysis could not considered, is not fully consistent with the view of the Division Bench of this Court in M/s Gurmukh Mal Shibba Mal''s case (supra) which has been upheld the Full Bench of this Court and by the Apex Court. No doubt right of re testing as available in other statutes may not be available to a party, but in an appropriate case, the court has discretion to have reanalysis conducted if it is considered to be necessary in the interest of justice.

In AIR 2001 Supreme Court 1303 : 2001(2) RCR(Criminal) 265 (SC), Amery Pharmaceuticals and another v. State of Rajasthan, which deals with a case under the Drugs Act, it was held that the court has a discretion to have sample retested under the provisions of Drugs and Cosmetics Act, 1940.

In Ram Dayal v. Municipal Corporation of Delhi and another, AIR 1970 Supreme Court 366 under the Prevention of Food Adulteration Act, 1954, it was observed that the accused could call the Public Analyst to be examined and crossexamined.

Decision relied upon by the leaned counsel for the petitioner that the accused had a right to seek reanalysis in every case, cannot be followed in view of Division Bench of this Court that reanalysis can be done only if a case is made out for the court to send for third analysis. In the said judgment, reference was also made to an earlier judgment in Joginder Kaur v. The State of Punjab, 198(80) PLR 617, wherein prayer of the accused to call the expert for crossexamination was declined and it was observed that accused had no right to get the sample examined again. However, in view of judgment of the Apex Court in A.S. Parmar''s case (supra) it has to be held that the court can in the interest of justice order for reanalysis though it is not a right of an accused to get reanalysis conducted in every case in absence of statutory provision to that effect.

For the above reasons while payer for retesting cannot be accepted by this Court but the trial Court is directed to reconsider the matter in accordance with law in the light of observations made hereinabove.

Parties will appear before the trial Court on 23.12.2002.

JUDGMENT accordingly.