1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT S.B.CRIMINAL MISC. PETITION NO.136/2005 M/s.Pesticides India Ltd. & Ors. vs. State of Rajasthan DATE OF JUDGMENT ::: 28.1.2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr.Suresh Kumbhat, for the petitioners. Mr.JPS Choudhary, PP. - - - - - BY THE COURT: REPORTABLE Heard learned counsel for the parties. This criminal misc. petition under Section 482 CrPC has been filed for quashing criminal prosecution launched against the petitioners under the provisions of Section 29(1)(a) of the Pesticides Act, 1968 (for short 'the Act of 1968'). The facts in brief are that on 30.11.1991, 2 premises of M/s. Abu Road Krishi Kraya Vikraya Sahkari Samiti Ltd., Abu Road (petitioner no.4) was inspected by the Insecticide Inspector and he took sample of Methyl Parathion 2% Dust Powder Batch No.91 D 61. This product was manufactured on 18.4.1991 and had expiry date of 17.10.1992. The sample was sent to the Agriculture Research Officer (Quality Control), State Pesticides Testing Laboratory, Durgapura, Jaipur for analysis on 2.12.1991. The sample was tested and it was declared to be mis-branded by report dated 15.1.1992. Said analysis report was sent to the petitioner no.4 with show cause notice dated 21.1.1992. Copy of report was also sent to the manufacturer – Pesticides India Ltd. with show cause notice dated 21.1.1992. The requisite sanction for prosecuting the petitioners was obtained from the State Government which was accorded vide order dated 7.7.1992. The petitioners' contention is that the petitioners submitted a letter of request to the Insecticides Inspector which is dated 29.1.1992 by which the petitioners requested that they want to rebut the analysis report dated 15.1.1992 and as per the record of the trial court itself, the Insecticides Inspector by letter informed the Court below that he also received one letter dated 3.2.1992 from the petitioner no.4, dealer of the petitioner no.1, by which he conveyed that the dealer is intending to controvert the report dated 15.1.1992. It appears from 3 the first order-sheet drawn by the court below itself that the Court passed the order that in case, the accused persons deposit Rs.95/- which is the fees required for testing of the sample at the instance of the accused persons, then the sample may be sent to the Director, Central Insecticides Laboratory, NH No.4, Faridabad (Haryana). From the record of the trial court, it is also revealed that one application was submitted on behalf of the accused on 7.9.1992 with a demand draft of Rs.95/- having no.295398 with a letter of request that the sample may be sent to the Central Laboratory for test. Since the trial court already ordered for sending the sample for test by Central Laboratory, therefore, the sample was sent to the Central Laboratory with the forwarding letter of the trial court dated 9.9.1992. It was done without any delay. It will be worthwhile to mention here that the Insecticide Inspector himself in his letter submitted before the trial court clearly mentioned that the sample has expiry date 17.10.1992 and the analysis of the sample after this expiry date will be of no consequence. The trial court also informed the Central Insecticides Laboratory that expiry date of sample is 17.10.1992, therefore, it is required to be tested before that date. Though as per court's letter dated 9.9.1992, it appears that sample and demand draft of Rs.95/- were sent to the Central Insecticides 4 Laboratory but it was returned by the Ministry of Agriculture (Department of Agriculture and Cooperation), Directorate of Plant Protection, Quarantine and Storage with remarks that send the draft in the name of Accounts Officer of the above department. It appears that thereafter, the petitioner no.4 was informed that fresh demand draft may be submitted. This direction was issued by the trial court to the petitioner no.4 on 22.10.1992. By this time, the expiry date of the sample was already over on 17.10.1992. However, the petitioner submitted new demand draft as directed by the trial court. The trial court resend the draft drawn in proper name by order dated 24.10.1992. The petitioners preferred a petition before this Court under Section 482 CrPC which was registered as SB Criminal Misc. Petition No.556/1993 wherein the petitioners prayed for quashing of the prosecution in pursuance of the complaint submitted on the basis of the report of State Pesticides Testing Laboratory dated 15.1.1992 on the ground that the petitioners were deprived of a defence which he could have taken under the provisions of Act of 1968 in the fact situation mentioned above. The petitioners' another contention was that the sanction for prosecution granted by the State Government vide order dated 7.7.1992 is absolutely illegal and hence, cannot be acted upon 5 because of the reason that the sanction order has been passed mechanically and without application of mind and without examining the facts of the case. When the matter came up before the learned Single Judge of this Court for consideration of misc. petition no.556/1993, the learned Single Judge of this Court was of the view that the matter involves certain important questions of law which are required to be answered by the Larger Bench, therefore, the matter was referred to the Division Bench. Before the Division Bench, the permission was sought by the petitioners to withdraw the said misc. petition no.556/1993 with liberty to avail the remedy before the trial court at appropriate stage. In view of the order of Division Bench dated 11.2.1999, the petitioners got opportunity to raise objection against the entire prosecution proceedings but the trial court vide order dated 14.11.2002 rejected the petitioners' objection against prosecution after observing that in view of the totality of facts, it cannot be said that there was fault of the prosecution in not obtaining fresh report of the sample from the Central Laboratory. The trial court also observed that it is not a case where the complaint was submitted in Court after expiry of period of sample nor it is a case where the accused put in appearance after expiry of sample in question. The samples were sent to 6 the Central Laboratory in time but when the demand draft was not submitted in the name of appropriate authority, the prosecution cannot be held liable for depriving the accused from obtaining the report from the Central Laboratory. The order of the trial court dated 14.11.2002 was challenged by the petitioners by preferring second petition under Section 482 CrPC which was registered as SB Criminal Misc. Petition No.49/2003. This petition no.49/2003 was dismissed by this Court principally on the ground that the petitioners did not submit their letter of request under Section 24(3) within a period of 28 days and submitted application for sending the sample for testing by moving application in the Court on 7.9.1992 and because of this reason only, the prosecution cannot be quashed. The order of this Court dated 25.4.2003 passed in petition no.49/2003 was challenged by preferring Special Leave to Appeal (Criminal) No.4137/2003 before the Hon'ble Apex Court. The petitioners sought permission of the Hon'ble Apex Court to withdraw the said petition so as to file a substantive petition under Section 482 CrPC before the High Court. The Hon'ble Supreme Court granted permission to the petitioners to withdraw the Special Leave to Appeal No.4137/2003 without expressing any opinion on the questions raised in the said petition and the Hon'ble Apex Court directed that if such a 7 petition under Section 482 CrPC is filed, the High Court will deal with the same independent of the observation made in the impugned order, obviously the order of this Court dated 25.4.2003. In view of the said permission of the Hon'ble Apex Court permitting the petitioners to submit the petition under Section 482 CrPC, the petitioners have submitted the present misc. petition. Learned counsel for the petitioners submitted that a valuable right has been given to the persons named as accused under the provisions of the Act of 1968 by enacting Sub-sections 3 and 4 of Section 24. The purpose of these two provisions is clear so that a report which is obtained by the Insecticide Inspector from the Insecticide Analyst may be treated to be a conclusive proof of the facts stated in the report unless it is objected by the accused persons in writing. It is submitted that once the accused persons notified in writing to the Insecticide Inspector or the court before which any prosecution on the basis of any sample test report is pending and the accused, intending to adduce evidence in contravention of the report, accused has shown his intention to rebut the report in writing, then that report looses its value as conclusive proof. It is also submitted that by a trustworthy report, the accused person can rebut the 8 report of the Insecticide Analyst and for that purpose, as per Section 24(4), he can obtain opinion from the Central Laboratory about the sample in question. With the help of this report alone, the accused persons can request the Court to discard the report submitted by the Insecticide Analyst. In the present case, the sample was taken much before the date of expiry of the product. From the record, it is clear that the petitioners submitted written request to the Inspector concerned for sending the report to the Central Laboratory for testing. The request could have been made to the Inspector or the Court and in this case, even the Inspector informed the Court below that there is a request for sending the sample for retesting under Section 24(4). The court below also passed an order for sending the sample to the Central Laboratory. The petitioners complied with the instructions which were given to the petitioners by the Inspector as well as by the Court by specific order and the petitioners submitted demand draft of Rs.95/- without any delay and much before the sample could have expired. Because of any reason, if the report has not been given by the said Laboratory or could not have been obtained before the sample could have expired, then the prosecution cannot proceed and proceeding with prosecution is abuse of process of court as the accused in such situation cannot be convicted. At the most, the conduct of the 9 accused may have relevance in certain circumstances and if the accused persons deliberately with ingenuity and with intention to see that the report of further analysis by the Central Laboratory should not be obtained before expiry of the product, then in that situation, the accused may not have been entitled to the benefit but when it was specifically brought to the notice of the Court that the sample will expire on 17.10.1992 and this information was also supplied by the prosecution and the accused both with specifically mentioning that in case, the sample will be analysed after 17.10.1992, the report will be of no use, then in that situation, the accused persons cannot be put in a position where they cannot take their most valuable defence. It is submitted that the deprivation from a defence in a criminal case itself is sufficient for quashing the prosecution because of the simple reason that the person cannot be convicted when he has not been allowed to take a defence which may completely destroy the allegations levelled in the criminal complaint. Learned counsel for the petitioners further submitted that the sanction for prosecution granted by the State Government by order dated 7.7.1992 is absolutely illegal and cannot be acted upon in view of the fact that the order has been passed mechanically and without application of mind and the sanction is 10 illegal in view of the judgment of this Court delivered in the case of M/s. B.A.S.F. India Ltd. and others vs. State of Rajasthan and others reported in 2005 Crl.L.J. 714. It is submitted that verbatim the same sanction order as issued in the case of M/s.B.A.S.F. has been given in the present case. In view of the above, the prosecution of the petitioners deserves to be quashed on this ground also. Learned Public Prosecutor submitted that the petitioner was given full opportunity to take defence and he could have requested the Insecticide Inspector or the Court to send the sample for analysis by the Central Laboratory. The court below permitted the petitioners to obtain report from the Central Laboratory and if the petitioners submitted a wrong draft, the draft in the name of wrong authority, then the petitioners cannot take a plea that the delay was caused by the prosecution and by any act of the prosecution, the petitioners were deprived from taking any appropriate defence. It is also submitted that the petitioners did not submit their request within a period of 28 days before the Insecticide Inspector which is the period within which the petitioners could have shown their intention to controvert the report under Section 24(3) of the Act of 1968. So far as the sanction for prosecution is concerned, according to 11 learned public prosecutor, in the sanction order dated 7.7.1992, the sanctioning authority clearly observed that he has carefully examined the case and thereafter is giving written consent of the Government to the concerned authority for prosecuting the dealers and manufacturers whose particulars have been given in the order dated 7.7.1992. I considered the submissions of learned counsel for the parties and perused the record also. The facts are not in dispute and they may be recapitulated in brief here again. The sample was taken on 30.11.1991 of a product having expiry date as 17.10.1992, therefore, there was a gap of about 1 year in the date of taking sample and its expiry. The State Analyst report was received on 15.1.1992. Thereafter also, there was sufficient time for sending the sample to the Central Laboratory on receipt of request from the petitioners. The Insecticide Inspector himself admitted in his letter submitted before the court below that he has received request for sending the sample for obtaining opinion of the Central Laboratory. In the letter of Insecticide Inspector, the date of request submitted by the petitioner no.4 is given as 3.2.1992 whereas the petitioner no.4 was served with the show cause notice on 3.2.1992. Not only this, but even the 12 petitioner no.1, manufacturer of said product, was also served with the notice of the report only on 29.1.1992. In view of the above, if the letter dated 3.2.1992 submitted by the petitioner no.4 has not been placed on record by the prosecution, it is of no consequence so far as the case of the petitioners is concerned with respect to the taking steps under Section 24(3) of the Act of 1968 because from the material placed on record by the prosecution itself, it is proved that the steps were taken under Section 24(3) by the petitioners in time. Be it as it may be, the trial court did not refuse to send the sample to the Central Laboratory on the ground that the petitioners never shown their intention to controvert the report of the State Laboratory in writing either before the Insecticide Inspector or before the Court and, therefore, the petitioners are not entitled to obtain analysis report from the Central Laboratory. Contrary to it, the trial court was of the view that the petitioners were entitled to obtain another report from the Central Laboratory as per Section 24(4) and in fact, the petitioners were directed to pay the requisite fees for retesting of the sample from the Central Laboratory and the petitioners submitted requisite fees on 7.9.1992 and it is without any delay on the part of the petitioners. The Hon'ble Supreme Court in the case of M/s. 13 Gupta Chemicals Pvt. Ltd. and ors. vs. State of Rajasthan and anr. reported in 2002(2) WLC (SC) Criminal 79 held that the appellants in that case intimated the Insecticide Inspector their intention to have the sample tested in the Central Insecticides Laboratory within the prescribed period of 28 days of the receipt of the copy of State analyst report. In that case, no effective steps were taken by the Insecticides Inspector after the said request, then the Hon'ble Supreme Court held that in view of the inaction on the part of the inspector, it has not been possible for the appellants to have the sample examined by the central insecticides laboratory and in the meantime, the shelf-life of the sample of insecticide seized had expired and for that reason, no further step could be taken for its examination. In the above fact position, the Hon'ble Supreme Court held that the criminal prosecution against the appellants will be a futile exercise and abuse of process of court. The Hon'ble Supreme Court further held that the High Court was not right in dismissing the petition filed under Section 482 CrPC. In earlier judgment delivered by the Hon'ble Apex Court in the case of State of Haryana vs. Unique Farmaid (P) Ltd. and others reported in (1999) 8 SCC 190, the Hon'ble Apex Court held that the procedure for testing the sample is prescribed and if it is 14 contravened to the prejudice of the accused, he certainly has the right to seek dismissal of the complaint and further observed that in order to safeguard the right of the accused to have the sample tested from the Central Insecticide Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In this case, a request for sending the sample for retesting of sample from the Central Laboratory was made by the accused persons well in time and no fault can be attributed to the petitioners, if the report has not been obtained and the report cannot be obtained now because of the expiry of the period of the product. The petitioners are entitled to an order for quashing of the complaint. In addition to above, there is force in the submission of learned counsel for the petitioners that the sanction granted for prosecution of the petitioners is nothing but the order passed mechanically and without recording any reason for satisfaction for granting sanction for prosecution. The plea is supported by the judgment of this Court delivered in the case of M/s. B.A.S.F. India Ltd. (supra) which has been delivered with respect to the same type of sanction as has been granted in this case. In view of the above reasons, on both the counts, 15 the petitioners succeed. Consequently, this misc. petition is allowed and the prosecution of the petitioners in criminal case no.650/1992 is quashed. (PRAKASH TATIA), J. S.Phophaliya