Crl. Misc. No. M-5770 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-5770 of 2009 Date of Decision: July 1, 2009 M/s Indofil Chemical Company …..Petitioner Vs. State of Punjab …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. S.R. Verma, Advocate for the petitioner. -.- M.M.S. BEDI, J. Petitioner- Indofil Chemical Company is facing proceedings in a complaint under Sections 3 (k) (i), 17, 18, 33 and 29 of the Insecticide Act, 1968 read with Rule 27 (5) of the Insecticide Rules, 1971, punishable under Section 29 (1) (a) of the Insecticide Act which was filed in December 2001 by the Insecticide Inspector, Nawanshehar on behalf of Chief Agricultural Officer, Nawanshehar. The shop of M/s Khalsa Beej Bhandar, Nawanshehar was inspected by investigating team led by Insecticide Crl. Misc. No. M-5770 of 2009 [2] Inspector. An intimation was given in Form No.20 for the purpose of sampling. The stock register was inspected and verified of said firm in respect of Mancozeb 75% W.P. manufactured in July 1998, having expiry date June 2000, by petitioner’s firm i.e. M/s Indofil Chemicals Company, Bombay. In exercise of powers conferred under Section 21 (i) (a) of the Insecticide Act, 1968, (for short ‘the Act’) and duties vide Rule 27 (3) of the Insecticide Rules, 1971, (for short ‘the Rules’), three packs of 500 grams each of Mancozeb 75% w.p. (fungicide) were taken after necessary form 20 and 21 under Rules 33 and 34 of the rules were filled in presence of Mohinder Pal Singh and signatures were put by the Agricultural Officer, Nawanshehar. Brass seal impression was put on the forms and samples. Out of three portions one portion of sample was given to the dealer. Three portions of sample i.e. Rs.300/- was paid to Mohinderpal Singh, proprietor of M/s Khalsa Beej Bhandar, Nawanshahar vide receipt dated February 2, 1999. The samples were taken in accordance with the procedure laid down under the Act and Rules. Signatures of Mohinder Pal Singh were obtained on relevant forms. One portion of the sample alongwith necessary forms were sent to Senior Analyst, Insecticide Testing Laboratory, Bhatinda through Tilak Raj vide letter dated February 5, 1999 for test analysis under provisions of Section 22 (6) of the Act. Vide test report dated March 5, 1999, sample of the fungicide was received in the office of the Chief Agricultural Officer, Nawanshahar, which declared that the sample did not conform to I.S. specification with respect to its percentage active ingredients content requirement as such it was misbranded. Therefore, the Crl. Misc. No. M-5770 of 2009 [3] sample was declared sub-standard as per the definition under Section 3 (k) (i) of the Act and prima facie an offence under Section 29 (1) (a) of the Act was found to have been committed by M/s Khalsa Beej Bhandar, Nawanshahar, (accused No.1). Copy of the analysis report was sent to the said accused alongwith show-cause notice in accordance with Section 24 (2) of the Act which was received on March 22, 1999 alongwith purchase bill of supplier vide bill dated October 16, 1998 of M/s Jehlum Pesticides, D-3, Industrial Area, Phase I, SAS Nagar, Mohali. The said fungicide was supplied and marketed by M/s Jehlum Pesticides (accused No.2) as such the said firm was responsible for supplying and marketing sub-standard fungicide. Show-cause notice was served vide registered letter dated March 22, 1999 to said firm. As prima facie, M/s Jehlum Pesticides had committed offence punishable under Section 29 of the Act for supplying and marketing the misbranded fungicide, was liable for criminal proceedings under the Act. The abovesaid fungicide was manufactured and supplied to the supplier M/s Jehlum Pesticides (accused No.2) by the petitioner firm i.e. M/s Indofil Chemical Company vide invoice dated October 1, 1998. A show-cause notice was also served to the petitioner Company. Reply to the show-cause notice was received in the office of the Chief Agricultural Officer, Nawanshahar vide registered letter dated March 31, 1999. In reply to the show-cause notice, accused No.1 and the petitioner (accused No.3) vide their letters dated March 19, 1999 and March 31, 1999 requested Chief Agricultural Officer, Nawanshahar, for re-analysis of the reference sample from Central Insecticides Laboratory, Faridabad, under Section 24 (3) of the Crl. Misc. No. M-5770 of 2009 [4] Act at their own cost. A reference sample of Mancozeb 75% w.p. manufactured by the petitioner Company lying with the Chief Agricultural Officer, Nawanshehar was sent to Director of Plant Protection and Quarantine Storage, Faridabad, vide letter dated May 4, 1999. The re- analysis report from the Central Laboratory, Faridabad was received in the office vide receipt dated June 22, 1999 with remarks that the sample does not conform the relevant I.S. Specification as such it was misbranded. The active ingredient was found 66.5% against the desired strength of 75%. After getting the necessary written consent of authorized person under Section 31 (1) of the Act, the complaint was filed. Through instant petition, the petitioner manufacturing company has sought the quashing of the criminal complaint which is pending in the Court of CJM, Nawanshahar, on the ground that under Section 24 (4) of the Act, the petitioner is given a valuable right to controvert the report of State Laboratory by sending the second portion of sample to Central Insecticide Laboratory. This statutory defence available to the petitioner to exercise the right through the Court as per Section 24 (4) read with Section 31 (1) of the Act has been violated as it is only the Court of Judicial Magistrate Ist Class which is vested with the power to send the second sample deposited with the Magistrate, on request, either by the complainant or of the accused or on its own motion, to Central Insecticide Laboratory, to controvert the report of State Laboratory but in the present case in response to the show cause notice issued on March 22, 1999, the petitioner replied the same on March 31, 1999 and showed his intention to adduce evidence to controvert the report Crl. Misc. No. M-5770 of 2009 [5] of the State laboratory by sending the same to Central Insecticide laboratory as per Section 24 (4) of the Act. The Chief Agricultural Officer had sent the second portion of sample for retesting to the Central Insecticide Laboratory, Faridabad, to controvert the report of State Laboratory. By sending the second portion of sample to Central Insecticide Laboratory, the Chief Agricultural Officer exercised the jurisdiction which was not available to him under the Act or the Rules framed thereunder. It was argued that under Section 22 (6) (ii) read with Section 24 (4) of the Act, sending the second portion of sample to Central Insecticide Laboratory to controvert the report of State Laboratory, powers are conferred in the Court of Judicial Magistrate Ist Class. There has been violation of statutory provisions and denial of valuable right to get the sample re-tested through Court. Therefore, a serious prejudice has been caused warranting the quashing of the criminal complaint, summoning order and other criminal proceedings pending against the petitioner. I have heard counsel for the petitioner and sent for the report of the trial Court. A perusal of the file indicates that the Chief Agricultural Officer had sent a show-cause notice regarding a misbranded fungicide Mancozeb 75% w.p. to the petitioner Company alongwith a copy of the analysis report by the State Insecticide Laboratory on March 22, 1999. The petitioner Company had sent a registered reply vide letter dated March 31, 1999 informing that the petitioner firm is a well-equipped manufacturing plant situated in Maharashtra and plant is equipped with most modern machinery and a highly sophisticated automation to produce consistent Crl. Misc. No. M-5770 of 2009 [6] quality products. Under the environment, it is extremely difficult for our products to fail in quality specifications as laid down under the Act. It was mentioned that the Act allows a margin of plus/minus 5%, thus the alleged offending shortfall could be approximately 7% which could be due to a number of factors not within the control of the manufacturer i.e. improper storage, resulting in evaporation of the contents etc. It was mentioned therein that it was necessary to have the said sample re-tested at Central Insecticide Laboratory, Faridabad and that the petitioner Company was making request under Section 24 of the Act. The testing charges of Rs.160/- in cash would be deposited in the office of the Chief Agricultural Officer by the local representative of the petitioner company. The Chief Agricultural Officer had submitted the charges of Rs.160/- for re-testing/ re- analysis vide letter dated May 4, 1999 and sent the sample to the Director of Plant Protection, Quarantine and Storage, Faridabad, as desired by the dealer/ manufacturer. The question of law raised by the petitioner initially appeared to be interesting but subsequently it transpired that it has already been decided by this Court in Crl. Misc. No. M-28901 of 2003 on October 11, 2006-M/s Khalsa Beej Bhandar, Nawanshahar Vs. State of Punjab, filed by co-accused of the petitioner, against the petitioner. In the said case, the dealer had taken up same pleas through the same counsel but it was rejected on the ground that there was no requirement of sending the second sample to be deposited with the Court as the complaint had not been filed by that time and on the ground that no prejudice had been caused by sending the second portion of the sample directly by Chief Agricultural Officer to the Crl. Misc. No. M-5770 of 2009 [7] Central Insecticide Laboratory. It was held that in case the request for sending the second portion of the sample for re-analysis was received after filing of the complaint, accused could then claim as a matter of right that the second portion of the sample be sent by the Court itself and not by the Agricultural Development Officer. The Khalsa Beej Bhandar, Nawanshehar had again filed a curative petition for recalling the order dated October 11, 2006 which was again dismissed on January 30, 2007. It is not out of place to mention here that the counsel for the petitioner has placed reliance on the judgment in Crl. Misc. No. 6222-M of 1998 decided on October 16, 2002 wherein the criminal proceedings against a manufacturing company of Insecticides/ Pesticide was quashed holding that the Deputy Director of Agriculture was not competent to get the second portion of the sample analyzed from the Central Insecticide Laboratory and as such he had exercised the jurisdiction not vested with him, the continuation of criminal proceedings was an abuse of the process of the Court. Counsel for the petitioner has submitted that matter should be referred to a Division Bench as there has been difference of opinion by different Benches of this Court regarding the legal issue whether the Agricultural Development Officer has got jurisdiction to send the second sample for re-analysis to the Central Insecticide Laboratory directly without getting the same sent through the Court. After carefully perusing the record of the trial Court and considering the arguments of learned counsel for the petitioner in context to Crl. Misc. No. M-5770 of 2009 [8] the earlier petition and curative petition filed by co-accused of the petitioner testing the same question, I am of the opinion that there is no ground for referring the matter to Division Bench. The complaint in the present case was filed on December 6, 2001. The representative of the petitioner Company appeared before the Magistrate on June 13, 2003 and the company was already aware in view of the registered notice dated March 22, 1999 having been sent by Chief Agricultural Officer to the petitioner Company. The petitioner Company had sent a reply on March 31, 1999 to the Chief Agricultural Officer. The Company was very well aware of the sample having been failed by the State Laboratory. No step was taken by the petitioner Company to file any application before the Court of competent jurisdiction w.e.f. 1999 till the date of filing of the complaint i.e. on December 6, 2001 to get the sample analyzed from State Laboratory. There was absolutely no bar for the petitioner Company or any of the co- accused in the complaint, after the receipt of copy of the report of analyst to file an application in the Court under Section 24 (4) of the Act to seek the re-analysis by the Central Laboratory. When a person waives of his right voluntarily, he cannot subsequently turn around to say that a prejudice has been caused to him on account of his own fault. The expiry date of the insecticide was 2000. No attempt was made by the petitioner himself to get the assistance of the Court for sending the sample to the Central Insecticide Laboratory. The proceedings in the complaint are pending since 2001. The matter is covered by the judgment in Crl. Misc. No. 28901-M of 2003, decided on October 11, 2006 in case M/s Khalsa Beej Bhandar Vs. State of Crl. Misc. No. M-5770 of 2009 [9] Punjab. The petition is thus dismissed in limine. However, it is made clear that in case the petitioner is able to establish that there had not been proper sealing or sampling or that a prejudice has been caused to the petitioner by sending of sample directly to the Central Insecticide Laboratory, it will be open to the trial Court to give the benefit of said lacuna to the petitioner or to the co-accused. Nothing said in this order will prejudice the rights of the petitioner or his co-accused, in any manner. July 1, 2009 (M.M.S.BEDI) sanjay JUDGE