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Section 482 Cr.P.C

Posted on 11 September 2008 by G.Aravinthan

Court

High Court of Madras



Brief



Citation

CDJ 2008 MHC 4003



Judgement

In the above Criminal Original Petition filed under Section 482 Cr.P.C., the petitioner is seeking for quashing of the complaint and all further proceedings in C.C.No.539 of 2006 on the file of the learned Judicial Magistrate, Jayankondam.

2. The factual backdrop of the case, which is relevant for appreciating the contentions raised may be stated thus:-

a. The petitioner, namely, M/s. Jayakrishna Pesticides Pvt. Ltd., a company incorporated under the Companies Act, 1956, is engaged in the manufacture of Pesticides and Insecticides including Copper Oxy Chloride. On 20.5.2005, the Agricultural Officer, Jayankondam, inspected the premises of one Raj Agencies situated at Main Road, Melanikuzhi Post, Udayarpalayam Taluk and seized a pocket of the product, Copper Oxy Chloride 50%(WP) 100gm. In accordance with the procedure prescribed under Section 22(5) of the Insecticides Act, the sample was divided into three portions, of which one was given to the person from whom the sample was collected and another was sent to the Government Analyst, Pesticide Testing Laboratory, Coimbatore. The Assistant Director of Agriculture, Jayankondam, on 9.6.2005 received the analyst report vide No.708 of 2005, dated 6.6.2005 for the collected sample of Copper Oxy Chloride 50% WP. In the said report, the Insecticides Analyst declared that the sample of Copper Oxy Chloride 50% WP bearing batch No.10 manufactured in January 2005 with the date of expiry in December 2006, which was collected from the fourth accused and manufactured by the first accused, was "MISBRANDED". Since the sample was found to fail in Active Ingredient content, even after allowing the permissible tolerance limit of 3% deviation from the normal declared value. The Active Ingredient content is 44.17% as against the declared value of 50% noted on the container and therefore, the sample was 'Misbranded' under Section 3K (i) of Insecticides Act, 1968 as per Is 6940-1982. On receipt of the report, the Assistant Director of Agriculture, Jayankondam vide letter No.B/1726/05, dated 14.6.2005 requested the 1st, 3rd and 4th accused to show cause and offer explanation with regard to 'MISBRANDED' Copper Oxy Chloride 50% WP Batch NO.10 along with analysis report in accordance with Section 3(1) of the Insecticides Act, 1968. The petitioner also offered his explanation, by his letter, dated 28.6.2005, wherein it is stated as under:-

"The sample declared Misbranded -Copper Oxy Chloride 50% WDP B.No.10 of Jan.2005 was tested by us on three occasion as detailed and test Report are enclosed.

A.1% Suspensibility Ph value

At the time of production 31.01.05 50.54% 85.32% 7.5%

Re-check our Counter

Sample (after receiving 17.06.05 50.39% 85.15% 7.6% your letter)

Market Sample Tested on 22.06.05 50.40% 85.17% 7.6%

From the above results it is clear that the material is standard and do not show any deterioration in A.l Content. We are sure that the material will not fall in A.l Content if tested observing all aspects as per specification.

As we are very much sure about the quality of our product we request you to advise for reanalyze the sample at the same Lab. Once again to confirm the earlier result."

b. Thereafter, the Commissioner of Agriculture, Chennai-5, by his letter No.PPS1/96568/05, dated 22.7.2005 informed the petitioner that the misbranded pesticide sample Copper oxy chloride 50% WDP cannot be reanalysed at the same laboratory. By yet another letter No.PPS1/96568/05, dated 2.11.2005, he informed the petitioner that the misbranded pesticide sample Copper oxy chloride 50% WDP cannot be reanalysed at the same laboratory and the petitioner can send the sample to C.I.L. Faridabad after paying requisite fees and with the permission of the Hon'ble Court. On 5.9.2006, the respondent filed a complaint before the learned Judicial Magistrate, Jayankondam and the same has been taken on file in C.C.No.539 of 2006. On 3.11.2006, summons was issued in C.C.No.539 of 2006 to the petitioner and the same was received by the petitioner on 10.11.2006. In the said summons, the petitioner was called upon to appear in court on 23.1.2007. By then the shelf life of the insecticide in question had expired. Section 29 provides that whoever imports, manufactures, sells, stocks, or exhibits for sale, or distributes any insecticides deemed to be mis-branded under sub-clause (i) or sub-clause (iii) of section 3(k) shall be punishable in the manner prescribed under the section.

3. In the above said Criminal Original Petition, the petitioner is seeking quashing of the complaint and the criminal proceedings instituted against it, inter alia, on the ground that on account of inordinate delay in filing the complaint, they have been deprived of their valuable right to get the sample tested from the Central Insecticides Laboratory, Faridabad.

4. Heard both.

5. Mr. Krishna Srinivasan, learned counsel for the petitioner submitted that the petitioner has been deprived of the valuable right to get the sample examined at the Central Insecticides Laboratory, which is vested in the petitioner under Section 24(4) of the Act.

6. The learned counsel further contended that the petitioner intimated to the Assistant Director of Agriculture that they were not accepting the State analysed report as correct and intend to have the sample analysed at the same laboratory and that the finality and the conclusiveness attached under the statutes in respect of the state analysed report is not available to the prosecution.

7. Further, the learned counsel submitted that when the petitioner was called upon to appear before the Court, the shelf life of the seized pesticide had expired and therefore, in those circumstances, no useful purpose will be served in continuing the criminal proceedings and it is a fit case for this Court to quash the proceedings in exercise of its power under Section 482 Cr.P.C.

8. In support of his contention, the learned counsel for the petitioner relied upon a decision of the Apex Court reported in (1999) 8 SUPREME COURT CASES 190 (STATE OF HARYANA VS. UNIQUE FARMAID (P) LTD. AND OTHERS).

9. Per contra, Mr.Hasan Mohamed Jinnnah, learned Govt. Advocate (Crl.side) appearing for the respondent contended that these points may be raised by the petitioner at the appropriate stage of the proceedings and even accepting the factual position as stated to be correct, no case for quashing of the complaint under Section 482 Cr.P.C. is made out.

10. He further contended that in their letter dated 28.6.2005, the petitioner had not sought for sending the samples for reanalysis to the Central Insecticides Laboratory, whereas the petitioner had sought for reanalysis by the very same laboratory and as such, no proper request has been made within the time prescribed period of 28 days and therefore, it cannot be contended that the petitioner had intimated in the proper manner his intention to adduce evidence in controrversion of the report.

11. In support of his contention, the learned Govt. Advocate relied upon a decision of the Apex Court reported in CDJ 2002 SC 650 (GUPTA CHEMICALS PRIVATE LIMITED V. STATE OF RAJASTHAN) = 2002 (Supp.1) JT 516 = 2002 (5) Supreme 549.

12. In the said decision, in paragraph 12, the Apex Court has observed as under:-

"12. From our perusal of the aforesaid provisions it is manifest that ordinarily in the absence of any material to the contrary, the report of the insecticides analyst will be accepted as final and conclusive of the material contained therewith. This is however subject to the right of the accused to have the sample examined by the central insecticides laboratory provided he communicates his intentions for the purpose within 28 days of the receipt of the copy of the report."

13. Basing reliance on the above said passage, the learned Govt. Advocate submitted that in the absence of any material to the contrary, the report of the Insecticides Analyst will be accepted as final and conclusive of the materials contained therewith and however, it is subject to the right of the accused to have the samples examined by the Central Insecticides Laboratory.

14. The learned Govt. Advocate further submitted that the petitioner can invoke his right to have the samples examined by the Central Insecticides Laboratory only when he communicates such intention of the petitioner to the authorities concerned within 28 days of the receipt of a copy of the report.

15. According to the learned Govt. Advocate, in this case, the accused/petitioner herein had not communicated his intention to have the samples tested by the Central Insecticides Laboratory within 28 days from the date of receipt of a copy of the report and therefore, the contentions put forth by the learned counsel for the petitioner cannot be accepted.

16. I have carefully considered the submissions made on either side and perused the materials available on record.

17. At the outset, it will be useful to refer to the relevant provisions of the Act, for the purpose of the present proceedings:-

"(9) Section 3(k) of the Act, which defines the expression "mis-branded" provides that insecticides shall be deemed to be mis-branded in the circumstances enumerated in clauses (i), (ii) and (viii). Clause (viii) of section 3 (k) under which the complaint appears to have been filed reads as follows:

"3. Definitions – in this Act, unless the context otherwise requires -

(K) "mis-branded" – an insecticide shall be deemed to be mis-branded.

(VIII)If the insecticide has a toxicity which is higher than the level prescribed or is mixed or packed with any substance so as to alter its nature or quality or contains any substance which is not included in the registration."

18. The provision clearly indicates that for the purpose of this clause the report of the analyst is of considerable importance.

19. Section 24 which deals with the reports of the insecticides analyst so far as material for the purpose of the case is quoted hereunder:

"24. Report of insecticide analyst -

(1) The insecticide analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-section (6) of section 22, shall within a period of 60 days be deliver to the insecticide inspector submitting with it a signed report in duplicate in the prescribed form.

(2) Any document purporting to be a report signed by an insecticide analyst shall be the evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within 28 days of a receipt of a copy of the report notified, in writing, the insecticide inspector or the court before which any proceedings in respect of the samples are pending that he intends to adduce evidence in controversion of the report.

(3) 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 insecticide produced before the magistrate under sub-section (6) of section 22 to be set for test or analysis to the said 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 results thereof. And such report shall be conclusive evidence of the facts stated therein."

20. Thus, a careful reading of the aforesaid provisions makes it manifestly clear that ordinarily in the absence of any material to the contrary, the report of the Insecticides Analyst will be accepted as final and conclusive of the material contained therein.

21. As noted above, in this case, the petitioner by its letter, dated 28.6.2005 disputed the correctness of the report of the said analyst and had asserted that Copper Oxy Chloride manufactured by them is standard and do not show any deterioration in A.1. Content and they intended to lead contrary evidence by getting their samples reanalyzed by the same laboratory.

22. As per Section 24(3) of the Act, the person, from whom the sample is taken, shall, within twenty-eight days of the receipt of a copy of the report notify 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.

23. A reading of the letter of the petitioner, dated 28.6.2005 makes it abundantly clear that the petitioner had in pith and substance notified the Assistant Director of Agriculture, the respondent herein, its intention to adduce evidence in controversion of the report within the stipulated time of 28 days and that is sufficient compliance of the statutory requirement.

24. In Section 24(3) of the Act, it is not stated that the person from whom samples are taken should notify the Insecticide Inspector that he intends to get the samples examined by the Central Insecticides Laboratory, whereas it only says that he shall notify that he intends to adduce evidence in controrversion of the report.

25. In sum and substance, what the letter, dated 28.6.2005 notifies is that the petitioner intended to adduce evidence in controrversion of the report and that is sufficient. It is not necessary that the petitioner should have specifically notified the Insecticide Inspector his intention to get the samples reanalyzed by the Central Insecticides Laboratory. In such view of the matter, this Court is unable to accept the contentions put forth by the learned Govt. Advocate (Crl.side).

26. At this juncture, it is pertinent to point out that the petitioner had not only addressed the Assistant Director of Agriculture but also addressed the Commissioner of Agriculture, Chepauk, Chennai-5 to send the samples for reanalysis to the same laboratory for which a reply had also been received by the petitioner as noted above notifying the petitioner that the petitioner can send the samples to the Central Insecticides Laboratory, Faridabad by paying requisite fees and with the permission of the Hon'ble Court.

27. In this regard it is to be noted that only when the complaint is filed and the summons is served on the petitioner, the petitioner can come to know as to before which court the complaint had been filed and from which Court the petitioner should seek permission for sending the samples to the Central Insecticides Laboratory for reanalysis.

28. Admittedly, in this case, summons was served on the petitioner only on 10.11.2006 calling upon the petitioner to appear before the learned Judicial Magistrate, Jayankondam on 23.1.2007. As pointed out above, by that time, the shelf life of the product, namely, Copper Oxy Chloride had expired in December 2006 itself. In such circumstances, no useful purpose would be served in seeking permission of the court to send the samples seized from the petitioner for reanalysis to the Central Insecticides Laboratory, Faridabad.

29. The decision of the Apex Court in (1999) 8 Supreme Court Cases 190, cited supra, is to the same effect. In the said decision, in paragraphs 11 and 12, the Apex Court has observed as under:-

"11. Sub-Section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. The procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the 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 the 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, the expiry date of the insecticide was already over and sending of the sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In State of Punjab v. National Organic Chemical Industries Ltd. this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have the sample tested by the Central Insecticides Laboratory and adduced 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 this Court in State of Haryana v. Brij Lal Mittal under the Drugs and Cosmetics Act, 1940, Municial Corpn. of Delhi v. Ghisa Ram, Chetumal v. State of M.P. and Calcutta Municipal Corpn. v. Pawan Kumar Saraf all under the Prevention of Food Adulteration Act, 1954.

12. It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticide Inspector or the court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases, the Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, the shelf life of the sample had already expired and no purpose would have been served informing the Court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case the accused have been deprived of that right, thus, prejudicing them in their defence."

30. The above decision squarely applies to the case on hand. Therefore, when a valuable right is conferred on the petitioner/accused under the Act to have the sample tested from the Central Insecticides Laboratory and such right has been deprived of, in the considered view of this Court, prosecuting the petitioner under section 29(1) of the Act is not only against law but also an abuse of process of the Court. Further, no useful purpose will be served in continuing the proceedings further in C.C.No.539 of 2006.

29. For the aforesaid reasons, this Court is of the view that all further proceedings in C.C.No.539 of 2006 on the file of the Judicial Magistrate, Jayankondam are liable to be quashed and accordingly, they are quashed.

The above Criminal Original Petition is allowed. Connected M.P. is closed.



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