United Pesticides and anr. vs State of Punjab and ors.

Harmohinder Kaur Sandhu, J.

The present petition under Section 482 of the Code of Criminal Procedure has been filed by M/s. United Pesticides, Hari Palace Road, Ambala City and its proprietor Trilok Singh with a prayer for quashing of the complaint filed by respondent No. 1 against them under Section 3(k), 17, 18, 29 & 33 of the Insecticide Act, 1968 (Act for short) read with Rules 27(5) of Insecticide Rule, 1972 and the consequent proceedings taken on that complaint by Chief Judicial Magistrate, Ferozepur.

The facts as narrated in the petition may be briefly recapitulated. The petitioner Trilok Singh is proprietor of M/s United Pesticides, Ambala City and this firm manufactured pesticides including the one known as endosulfan. The product is sold through its distributors and dealers. On 941987, respondent No. 1 had drawn a sample of endosulfan 35% from the shop of M/s Kheti Sewa Centre, opposite Amar Talkie, Ferozepur Cantt. The same was sent to Central Insecticide Laboratory, Faridabad for analysis and it was found to contain 30.13% active ingredient instead of 35%. So it was alleged that the insecticide was misbranded. The petitioners were impleaded in the complaint as manufacturers of the product.

The petitioners impugned the complaint and the subsequent proceedings on the grounds that they were deprived of a valuable right to controvert the correctness of the report of Insecticide Analyst as instead of sending the sample for analysis to Insecticide Analyst: the respondents had sent the same to Central insecticides Laboratory. This denial of a valuable right was on account of deliberate conduct of the prosecution as a result of which the petitioners were seriously prejudiced in their defence and to allow the proceedings in the case any further would amount to an abuse of the process of the court. It was further contended that the sample was taken on 941987. which was from Batch No. 201 and was manufactured in July 1986. It expired in June, 1988. Although the complaint was filed on 2911988 before the expiry of the sample yet the petitioners learnt about their prosecution when the process was served on them. There was delay in launching the prosecution which was not explained. There was no valid sanction for the prosecution of the petitioners and there had not been sufficient compliance of the provisions of Section 31(1) of the Act.

In the return filed by respondent No. 1, it was pleaded that earlier too, the petitioners had filed Criminal Miscellaneous No. 287M of 1989 challenging the same complaint and that was dismissed. So the second petition on the same facts is not maintainable. On merits it was pleaded that the Insecticide Inspector was fully empowered to send the sample to Central Insecticides Laboratory and for retest and the second sample could be sent to some other laboratory situated in India, to controvert the report of the Insecticide Analyst. The other allegations made in the petition were denied.

I have heard the counsel for the parties and have perused the record.

The preliminary objection taken by the respondent that this petition is not maintainable as earlier writ Petition filed by the petitioner was dismissed, is not valid. The petitioners have admitted in para 11 of their petition that earlier petition a was dismissed about two years ago and no further proceedings were held. That petition was filed on different grounds. I have perused the order passed in the earlier Writ Petition and find that the grounds taken therein for impugning the complaint and proceedings arising therefrom were different. Since the complaint is being impugned now on other grounds, rejection of prior petition for quashing the same complaint is no bar as quashing does not amount to review or revision. Superintendent and remembrancer of Legal Affairs, W.B. v. Mohan Singh and others, AIR 1975 SC 1002 is an authority on this point.

It was submitted before me that in the present case respondent No. 1 by sending the sample for analysis to the Central Insecticides Laboratory deprived the petitioners of their valuable right to rebut the report of the Laboratory and as such the complaint was liable to be quashed. This contention of the learned counsel is quite valid. Under the provisions of the Act the sample taken by the Insecticide Inspector is to be sent for analysis to the Insecticide Analyst and not to the Central Insecticides Laboratory. Section 16 of the Act relates to the establishment of Central Insecticides Laboratory by the Central Government under the control of a Director to be appointed by the Central Government to carry out the functions entrusted to it by or under the Act. Section 19 of the Act provides :

"The Central Government or a State Government may, by notification in the official Gazette, appoint persons in such number as if thinks fit and possessing such technical and other qualifications as may be prescribed to be. Insecticide Analysts for such areas and in respect of such insecticides or class of insecticides as may be specified in the notification."

The various provisions of the Act make it clear that the Insecticide Inspectors are to send the sample for analysis to an Insecticide Analyst as appointed under Section 19 of the Act.

Section 22 of the Act lays down the procedure to be followed by Insecticide Inspectors and Subsection 6 of this Section reads as under :

"The Insecticide Inspector shall restore one portion of a sample so divided or one container is the case may be to the person from whom he takes it and shall retain" the remainder and dispose of the same as follows : (i) One portion or container, he shall forthwith send to the Insecticide Analyst for test or analysis; and

(ii) the second, he shall produce to the court before which proceedings if any, are instituted in respect of the insecticide".

Section 21 (1) of the Act deals with the powers of Insecticide Inspector and Subsection (c) of this section empowers the Insecticide Inspector to take samples of insecticide and send such samples for analysis to the Insecticide Analyst for test in the prescribed manner, Subrule 3, of Section 34 of the Insecticide Rules makes it obligatory on the part of the Insecticide Inspector to send a copy of the memorandum in Form XIII together with his specimen impression of the seals and of the seals if any, of the person from whom be takes such samples, separately by registered post or by hand to the Insecticide Analyst. It is thus clear that the Insecticide Inspector after taking the sample is to send the sample for analysis to the Insecticide Analyst and not directly to the Central Insecticide Laboratory. If the sample is got, analysed from the Central Insecticide Laboratory, then the persons facing prosecution are deprived of their right to controvert analysis report by getting the other sample tested from the Central Insecticide Laboratory.

Section 24 of the Act lays down that the Insecticide Analyst to whom a sample of insecticide has been submitted for test, shall submit his report to the Insecticide Inspector within a period of sixty days and the Insecticide Inspector on receipt there of shall deliver one copy of the report to the person from whom the sample was taken. Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts statedtherein and such evidence shall be conclusive unless the person from whom the sample was taken within twenty eight days of receipt of the copy of the report notified in writing to the Insecticide Inspector or the court before which any proceeding in respect of the sample are pending that he intends to adduce evidence in contravention of the report. The report of the Insecticide Analyst can be controverted by sending the second sample for test or analysis to the Central Insecticides Laboratory and that report then will be conclusive evidence of the facts stated therein. In the instant case, the Insecticide.

Inspector sent the sample for analysis to the Central Insecticides Laboratory, Faridabad as mentioned in para 6 of the complaint and thus deprived the petitioners of their valuable right to controvert the report. When a valuable right is conferred by the provisions of the Act, it is to be expected that the prosecution will not be denied to the person against whom prosecution is launched. The right conferred on the petitioners is a valuable one in the sense that the petitioners could controvert the report of the Insecticide Analyst by getting the sample tested from the Central Insecticide Laboratory which report would have been conclusive evidence of its contents. The petitioners in this case were deprived of their defence and the complaint is liable to be quashed on this ground.

Next submission of the learned counsel for the petitioners that there is no valid sanction granted for prosecution of the petitioners, is also well merited. The sanction to prosecute is an important factor which constitutes a condition precedent to the launching of the prosecution and it is not an idle formality. A photostat copy of the sanction granted in the case is Annexure P. 2. The sanction was granted after perusal of the relevant record placed before the sanctioning authority of M/s Kheti Sewa Centre, Ferozepur Cantt. It was granted on a cyclostyled styled form and only the names of M/s Kheti Sewa Centre, Ferozepur Cantt (including all partners) and M/s United Pesticides Ambala, City were filled in. There is no mention of the contents of the report of the Analyst nor there is any mention of specific provisions of law under which manufacturer is sought to be prosecuted. No sanction was granted to prosecute the proprietor of the firm. Even in the complaint, it is not mentioned as to what act was committed by the proprietor or by the firm. In the case of Lachhi Kam and another v. Inspector Insecticides, Sri Ganganagar and another, 1990 Cr. L. J. NOC 93, it was held that individual partners of the firm cannot be prosecuted unless there may be some nexus between them and the commission of the crime. This aspect of the case is required to be considered by the authority giving the consent. The authority competent to give consent is required to apply its mind as to who is perpetrator of the crime. The application of the mind is not only required to be made as to what offence is committed but also as to who committed the same and who is to be prosecuted.

In the pre sent case there had not been proper appreciation of the facts before the sanction to prosecute was granted. Sanction of prosecution therefore, cannot be acted upon to record the conviction of the petitioners and the petition is to be allowed on this ground also.

For the reasons recorded above the petition is accepted and the complaint Annexure P. I and the subsequent proceedings arising therefrom are quashed as against the petitioners. The trial court be informed.