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Judgment
V.M. Deshpande, J—Rule. Rule is made returnable forthwith. Heard finally by consent of the parties.
By the present Writ Petition, the Petitioners are praying :-
(i) to quash and set aside the Criminal Case bearing Regular Criminal Case No. 90 Of 2013 pending on the file of the learned Judicial Magistrate, First Class, Chhalisgaon, District -Jalgaon for the offences punishable under Section 7(b) of the Seeds Act, 1966 and under Section 13(1)(c) of the Seed Control Order, 1983 punishable with Section 19(a)(i) of the Seeds Act, 1966 and under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955, and also praying,
(ii) to set aside the order dated 22nd December, 2014 passed by the learned trial court below application Exhibit - 10 whereby, the Bailable Warrant is issued against the Petitioners.
[For the sake of brevity and convenience, The Seeds Act, 1966, The Seed Control Order, 1983 and The Essential Commodities Act, 1955 are referred to as "the Act", "the Order" and "the E.C. Act.", respectively.]
Facts giving rise to the present Writ Petition can be stated herein under : -
Maruti Sabaji Bhalerao, Seed Inspector and Agricultural Officer, Panchayat Samiti, Chhalisgaon, Taluka -Chhalisgaon, District - Jalgaon visited M/s. Pankaj Agency, Dhule road, Chhalisgaon, District - Jalgaon. The said Agency carrying on the business of selling and distribution of the seeds.
Petitioner No. 1 is joined as Accused No. 3, is the Seed Producer; where-as Petitioner No. 2 who is joined as Accused No. 4 is responsible person for the conduct of business of Petitioner No. 1, is the statement of assertion made in the complaint, by the Seed Inspector.
The Seeds Inspector at the time of visit to M/s. Pankaj Agency, taken the sample of hybrid maize MRM -3845 S HY-PRC (Gas Dried) bearing Lot No.ARA100010T, from the barren stock of 18 bags. The sample was randomly selected for germination and physical purity test. The sample was taken on 19th November, 2012. One sealed packet of said was given to Accused No. 1; where-as second sealed packet was wrapped in the paper and was sent to Seed Testing Laboratory, Pune for ascertaining the germination and physical purity test purpose. Third sealed sample was retained in the office of the Seed Inspector as counter sample.
Analysis Report No.STL/A/255/2012 from the Seed Testing Laboratory, Pune was received to the Seed Inspector, on 20th December, 2012. According to the Analysis Report, said sample was found to be "Non Standard" i.e. not according to the prescribed as per Seeds Act, 1966 as it has germination below the minimum standard of germination.
Thereafter, the Seeds Inspector filed complaint in the court of the learned Judicial Magistrate, First Class, Chhalisgaon, District - Jalgaon. Said was registered as R.C.C. No.19/2013.
The Petitioners state that, on 19th November, 2012, Respondent had issued notice to Pankaj Agencies, Chhalisgaon (for short "the Distributor") informing about its visit on the said date to draw the samples of the seeds in question. Accordingly, Respondent had visited the Distributor on 19th November, 2012 and during the course of inspection had randomly drawn the sample from the purchased seeds stock allegedly by following prescribed procedure of law. Besides, Respondent has reduced the details of the collected samples in tabular form which inter alia indicate the Lot Number of the seeds in question as ARA -100010. pertinently, Respondent has himself recorded the date of validity of the seeds in qu3estion as 17th December, 2012 in the said form and has also drawn the panchnama to that effect.
Heard Mr. Shirish Gupte, the learned Senior Counsel alongwith Mr. N.K. Chaudhari, the learned counsel for the Petitioners and Mr. V.H. Dighe, the learned Additional Public Prosecutor for the State of Maharashtra, in extenso.
According to the learned Senior Counsel, the valuable right of the Petitioners as envisaged under sub Section (2) of Section 16 of the Act is infringed. According to him, it is the indefeasible right of the Petitioners. According to him, the valuable right u/s 16 (2) of the Act is completely denied.
The learned Senior Counsel strenuously urged before me that the sample which was taken from the lot was having the validity only till 17/12/2012 and though the report of the Seed Analyst was available on 20/12/2012, the Complaint is lodged on 28/03/2013. Thus, according to him, the order of issuance of process is passed after the shelf-life of the sample in question was over. In that view of the matter, he submitted that the indefeasible right flowing in favour of the Petitioners in view of sub Section (2) of Section 16 of the Act is completely defeated and, therefore, the continuance of the Complaint is nothing but an abuse of process of law and hence he submitted that the petition needs to be allowed.
In order to buttress his submission, he placed reliance on various Judgments including the Judgment delivered by this court in Writ Petition No. 1188/2014 dated 3rd March, 2015.
Per contra, Mr. V.H. Dighe, the learned Additional Public Prosecutor opposed the prayer made by the learned Senior Counsel and submits that the right of the petitioner was not defeated.
From the rival submissions as advanced before this Court, it is clear that it rallies around Section 16 of the Act. In that view of the matter, it will be useful to reproduce the same.
" 16. Report of Seed Analyst -
(1) The Seed Analyst shall, as soon as may be after the receipt of the sample under sub-Section (2) of Section 15, analyze the sample at the State Seed Laboratory and deliver, in such form as may be prescribed, one copy of the report of the result of the analysis to the Seed Inspector and another copy thereof to the person from whom the sample has been taken.
(2) After the institution of a prosecution under this Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending any of the samples mentioned in clause (a) or clause (c) of sub-Section (2) of Section 15 to the Central Seed Laboratory for its report and on receipt of the application, the Court shall first ascertain that the mark and the seal or fastening as provided in clause (b) of sub-Section (1) of Section 15 are intact and may then dispatch the sample under its own seal to the Central Seed Laboratory which shall thereupon send its report to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of the analysis.
(3) The report sent by the Central Seed Laboratory under sub-Section (2) shall supersede the report given by the Seed Analyst under sub-Section (1).
(4) Where the report sent by the Central Seed Laboratory under sub-Section (2) is produced in any proceedings under Section 19, it shall not be necessary in such proceedings to produce any sample or part thereof taken for analysis ".
The scrutiny of the aforesaid provision would reveal that the Seed Analyst is under obligation to analyze the sample at the said Seed Laboratory, which he has received under sub Section (2) of Section 15 and the said report is to be delivered to the Seed Inspector and the another copy thereof is to be sent to the person from whom the sample is taken.
Sub Section (2) mandates that either the accused or the complainant on payment of prescribed fee are entitled to make an application to the Court for sending the sample to the Central Seed Laboratory and sub Section (3) of Section 16 supersedes the report given by the Seed Analyst, if the report is sent by the Central Seed Laboratory.
Admittedly, in the present case, the sample was drawn on 19/11/2012 and it was sent to the Incharge, Seed Testing Laboratory, Pune by the complainant/Seed Inspector. Undisputedly, the Incharge, Seed Testing Laboratory, Pune gave his report dated 20/12/2012.
A closure look and scrutiny to sub Section (2) of Section 16 is absolutely essential to decide the controversy. The provisions of the said sub Section shows that even the right is given to the complainant for re-test of the sample from Central Seed Laboratory.
From the plain reading of sub Section (2) of Section 16 of the Act, there can not be a doubt in the mind that either accused/vendor or complainant are entitled to make an application to the Court after the institution of the prosecution under the Act for sending the sample to the Central Seed Laboratory.
Upon such receipt of the application either from the accused or from the complainant, the Court to whom such application is moved, is duty bound first to ascertain the remark and seal or fastening as provided under clause (b) of sub Section (1) of Section 15 are intact and then dispatch the sample under its own seal to the Central Seed Laboratory, which shall thereupon send its report to the Court in the prescribed form within one month from the date of collection of sample specifying the result of the Seed Analyst.
Thus, it is crystal clear that before sending the sample for re-test to the Central Seed Laboratory, the Court has to ensure about the seal and then the Court is to send the said sample under its own seal to the Central Seed Laboratory.
Obviously, such exercise by the Court can be done only after the institution of the case/proceedings before the said Court. In that view of the matter, neither the accused nor the complainant, as the case may be, is having right to send the sample for re-testing with the Central Seed Laboratory. Since that exercise has to be done only by the Court, wherein the proceedings are initiated or filed under its own seal.
The complaint is filed on 28/03/2013. The complainant was aware that the shelf-life of the sample is to expire on 17/12/2012. Since the complaint itself is filed after the shelf-life was over, the Petitioners naturally will get the knowledge about filing of the complaint after the shelf-life of the sample was over. Therefore, it would have been a futility on the part of the Petitioners to exercise the right under sub Section (2) of Section 16 of the Act, because no one could be sure that sample will not undergo the change after its shelf-life and the Central Seed Laboratory would not have been in a position to express the opinion about the sample on the date of its seizure, since the report will be on the date of the examination at the belated stage.
Identical provision is found u/s 13 (2) of the Food Adulteration Act, 1954. While considering the right as envisaged under the prevention of Food Adulteration Act and after considering the decision of the Hon''ble Apex Court in the case of Ram Gopal and Another Vs. Alladia and Others, AIR 1970 SC 970 : (1971) 3 SCC 46 , this Court has taken a view in the case of Charandas Vallabhdas Mariwala and others Vs. The State of Maharashtra [Criminal Application No. 1842 of 1996] delivered on 19/07/2014 that when the delay is solely attributable to the prosecution, then in that event, the accused person will lost their indefeasible right.
In order to afford the indefeasible right available in view of sub Section (2) of Section 16 of the Act, the complainant was under obligation to take necessary steps in the complaint as early as possible and in any case before the expiry of the shelf-life of the product. Denial of such right results into denial of fair trial.
Upshot of the aforesaid discussion leads me to pass the following order :-
ORDER
(1) Criminal Case bearing Regular Criminal Case No. 90 Of 2013 pending on the file of the learned Judicial Magistrate, First Class, Chhalisgaon, District -Jalgaon for the offences punishable under Section 7(b) of the Seeds Act, 1966 and under Section 13(1)(c) of the Seed Control Order, 1983 punishable with Section 19(a)(i) of the Seeds Act, 1966 and under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 is hereby dismissed against the present Petitioners.
Consequently, Order dated 22nd December, 2014 passed by the learned learned Judicial Magistrate, First Class, Chhalisgaon, District -Jalgaon below application Exhibit -10 whereby, the Bailable Warrant is issued against the Petitioners is also quashed and set aside.
[2] Rule is made absolute in the above terms.