Thakar Chemicals vs State of Haryana

R.L. Anand, J.

M/s Thakar Chemicals through its partner Shri Sant Lal have filed the present petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing of the complaint under Section 29 of the Insecticides Act and for the quashment of the subsequent proceedings and the case set up by the petitioners is that M/s Thakar Chemicals is a partnership concern and Shri Sant Lal, petitioner No. 2 is one of its partners. For the purpose of manufacturing different types of the insecticides this firm has obtained manufacturing licence from the Central Insecticide Board, Government of India, Ministry of Agriculture, New Delhi. It is stated that on 25.6.1994 Quality Control Inspector visited the premises of the petitioners and drew two samples of Methyl Parathion 50% EC and Malathion 50% EC. All the two samples drawn from the premises of the petitioners were sent to the Senior Analyst, Quality Control Laboratory, Karnal. As per analysis report, one sample of Methyl Parathion 50% EC, batch No. 52, manufacturing date April, 1994 and expiry date March, 1995 was declared misbranded as the active ingredients were found to the extent of 45.16% instead of 50% . The other sample of Malathion 50% was found within the specifications. The copy of the analysis report was sent to the petitioners by the Deputy Director, Agriculture, Rohtak vide letter No. 4943 dated 27.7.1994. The petitioners vide letter dated 17.8.1994 replied to the department that they are maintaining the quality and they are not satisfied with the report of the analyst and made a specific request to send the second sample to some other laboratory for re testing and the result of the Karnal laboratory shall not be treated as conclusive. The grouse of the petitioner is that without sending the second sample for reanalysis to the Central Insecticide Laboratory, the present complaint has been filed against the petitioners by the department in the court of Sub Divisional Judicial Magistrate, Bahadurgarh on 10.4.1995. As per allegations of the complaint, the manufacturing date of insecticide was April, 1994 and its expiry date was March, 1995. The complaint was filed on 10.4.1995. By the time the complaint was filed in the Court, the shelf life of the sample had already expired and there was hardly any time with the petitioners to make a request to the Court for sending the second sample for reanalysis to the Central Insecticide Laboratory. Thus the valuable right conferred under the Insecticides Act for getting the sample reanalysed from the Central Insecticide Laboratory has been denied to the petitioners without any fault on their part and launching of prosecution is clearly an abuse of the process of the court and is liable to be set aside. The petitioners were denied the opportunity of (controverting) the correctness of the report of the Senior Analyst by forwarding the counterpart of the sample to the Central Insecticide Laboratory. The right of the petitioners under the Act has been violated by inaction and omission on the part of the department and as such is fatal to the prosecution. The valuable right granted to the petitioners has been taken away by the department and this act on the part of the department has prejudiced the rights of the petitioners. In para No. 6 of the petition it has been pleaded that the complaint is also liable to be quashed as there was noncompliance of the provisions of Section 33 of the Insecticides Act. The complaint has been filed against M/s. Thakar Chemicals through Shri Sant Lal and every person, who at the time of the commission of the alleged offence was responsible, ought to have been impleaded as a party and therefore, the complaint was not maintainable against the petitioners. With the above averments the petitioners have prayed for the quashment of the complaint and the consequential proceedings including the summoning order.

Notice of the petition was given to the respondent. The State has filed the reply and denied the allegations. So far as the taking of the sample is concerned, this part of the case is admitted. The petition has been contested mainly on the ground by the State that the petitioners by their own act and conduct waived the opportunity and did not approach the competent court of law and therefore, they have no cause of action to invoke the jurisdiction of this Court under Section 482 Cr.P.C. On merits the defence of the State is that vide letter dated 25.8.1994 it was duly intimated to the petitioners to approach the competent court of jurisdiction under Section 24(4) of the Insecticides Act to get the permission of the Court for retesting of the sample. However, the petitioners have not availed this right and therefore, they came to the High Court for the quashment of the complaint and the subsequent proceedings.

This petition I am disposing of with the assistance rendered by Shri Ravinder Chopra, Advocate on behalf of the petitioners and Shri S.S. Pattar, AAG, Haryana and with their assistance, I have gone through the record of this case.

First of all, I would like to deal with the second ground of attack which has been taken up by the petitioners for the quashment of the complaint and the resultant proceedings, which was to the effect that each partner of the partnership firm is supposed to be impleaded as party to the complaint. In the view of this Court this ground made out by the petitioners in the petition is prima facie untenable because every partner is an agent of the partnership firm. No doubt the partnership firm is not a legal entity like a company, yet petitioner No. 2 Shri Sant Lal being the partner of petitioner No. 1 can be prosecuted.

The principal ground of attack for the quashment of the proceedings is that the valuable right of the petitioner has been violated under Section 24 of the Insecticides Act itself in order to appreciate the controversy :

"24. Report of Insecticides Analyst (1) The Insecticides Analyst to whom a sample of any insecticide has been submitted for test or analysis under subsection (6) of Sec. 22, shall, within a period of sixty days, deliver to the Insecticides Inspector submitting it, a signed report in duplicate in the prescribed form.

(2) The Insecticides 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 facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twentyeight days of the receipt of a copy of the report, notified in writing the Insecticides Inspector or the court before which any proceeding 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 subsection (3) notified his intention of adducing evidence in controversion of the Insecticides 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 insecticides produced before the Magistrate under sub section (6) of Sec. 22 to be sent for test or analysis to the 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 subsection (4) shall be paid by the complainant or the accused as the Court shall direct."

The reading of Section 24(4) would show that this right could be exercised by the petitioners, when the complaint was pending before the Court. If the department for any reason whatsoever has not filed the report within the reasonable time causing prejudice to the accused, such accused cannot be allowed to suffer on account of the inaction committed at the level of the department itself. In the present case the petitioners showed their bona fides when they informed the department vide letter Annexure P1 dated 17.8.1994 that they expressed their nonapproval to the test report and the department was specifically requested to send the second sample to the State Central Laboratory as envisaged under Section 24(4) of the Insecticides Act. This was the statutory right which was exercised by the petitioners. The learned counsel appearing on behalf of the respondent submitted that this letter of the petitioners was duly replied by the department vide letter dated 25.8.1994 and the petitioners were specifically informed that they could approach to the Court in order to get the favourable orders for the retesting of the sample.

Now the point for determination is that what the department has done after 25.8.1994. Did they file the complaint within the reasonable time so that to enable the petitioners to exercise their rights under Section 24(4) of the Insecticides Act or not. In the present case, after writing the letter dated 25.8.1994 the department was supposed to file the complaint within such a reasonable time before the competent court of jurisdiction and the petitioners ought to have been served in such a span so that the petitioners before the expiry of the period could make a request to the court concerned for sending the sample for retest in the Central Insecticides Laboratory. In the present case the complaint was filed by the department on 10.4.1995 when the life of the sample had already expired on 31.3.1995. In these circumstances, what useful purpose was likely to be served to the petitioners if they moved an application to the Court concerned for sending the sample. There is inordinate delay on the part of the department from August, 1994 to 10.4.1995 and this delay has not been explained satisfactorily by the learned A.A.G. appearing on behalf of the State. The only submission which was raised by the learned counsel for the respondent before this Court is that once the petitioners were informed about the report of the analysis regarding the failure of the sample, it was obligatory on the part of the petitioners to make a formal request to the Court concerned for sending the sample for re analysis. The argument raised by the learned counsel for the respondent may look alluring at the first instance but on my deeper scrutiny I find that this is without any substance. If the submission raised by the learned counsel for the respondent is accepted, it would give the department a right to defeat the provisions of Section 24(4) itself. Magistrate could say conveniently that since no proceedings are pending before him, therefore, he was not inclined to accept any request on the part of the accused. The rights of the accused cannot be allowed to remain in a fluid state. No doubt, prima facie this Court finds some lacunae in the provisions of Section 24(4) of the Insecticides Act but these lacunae are not to be filled in by the court but by the legislature itself. The learned counsel for the petitioners has invited my attention to the judgment of the Hon''ble Supreme Court reported as JT 1996(10) S.C. 480, The State of Punjab v. National Organic Chemical Industries Ltd., in which the Hon''ble Supreme Court has interpreted the provisions of Section 24(4) of the Insecticides Act and in para No. 5 of the said judgment it has been held as follows :

".....At that stage, two options are open to the accused. The accused is entitled to have one copy of the sample entrusted to him to have it notified to the Court for proving to the contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the Court, he is entitled to have it tested by Central Insecticides Laboratory and adduce evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticides Analyst under subsection (3) of Section 24. The other option is, after the complaint is laid in the Court, the copy of the sample that is lodged with the Court by the Insecticides Inspector, would be requested to be sent by the Court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, consent and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court."

The above interpretation placed by the Hon''ble Supreme Court would show that the accused from whom the sample was taken could approach the court when the criminal proceedings are pending against him and any action on his part before filing of the complaint could be successfully scuttled/declined by the Magistrate. One Magistrate may accept the request before the institution of the complaint on the part of the accused for sending the sample, the other Magistrate may decline that request on the plea that as no proceedings are pending before him he is not bound to send the second sample for reanalysis. The benefit of the noninclusion of the satisfactory (statutory ?) provisions of Section 24(4) has to go to the accused and not to the prosecution. In the present case the complaint was filed on 10.4.1995, much after the expiry of the sample which was to expire on 31.3.1995 and thus a prejudice has been caused to the petitioner. This aspect of the case has not been considered by the learned Magistrate when he summoned the petitioners.

In this view of the mater, the petitioners are bound to be given benefit for the omission committed on behalf of the department when it did not send the sample for reanalysis after the receipt of the letter dated 17.8.1994. The department did not file the complaint within the reasonable time before the Court under intimation to the petitiones causing serious prejudice to the petitioners. Thus I allow this petition and quash the complaint under Section 29 of the Insecticides Act and the subsequent proceedings. Directions are given to the Magistrate not to proceed with the complaint against the petitioners.

Before I part with this order, I would like to emphasise the States of Punjab and Haryana to comply their statutory obligations under Section 24 of the Insecticides Act in such a manner so that the proceedings under Section 29 of the Insecticides Act should not become a waste paper due to the non compliance of the various provisions of the Act which enjoin some duties upon the State Government.

The copy of this order be sent to the Director Agriculture, Punjab/Haryana, for information.