IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47724 of 2007 1. Abhimanyu Kumar son of Late Ishwar Chand, Proprietor M/S. Agriculture Centre. 2. Bipin Kumar Chechan, Director of M/S. Plant Remedies, B/51-54, PhaseI, Industrial Area, Hajipur. Versus STATE OF BIHAR ----------- For the Petitioners : Mr. D. N. Tiwari For the State : Mr. R. Jha. 4 12/02/2009 Heard learned counsel for the petitioners and the State. The petitioners question the order of cognizance dated 20.12.2006 passed by the Chief Judicial Magistrate, Sasaram under section 420 of the Indian Penal Code and section 31 of the Insecticides Act (hereinafter referred to as the Act) pursuant to complaint case No. 74 of 2006 (Tr. No. 1992 of 2007). Learned counsel for the petitioners submits that the Insecticides Inspector-cum-Junior Plant Protection Officer, Rohtas purchased a sample of Insecticides Dimethoate 30% EC (Rogor Plus) from the shop of the petitioners. The law required him to send it for analysis to the Laboratory forthwith and the analyst report was required to be received within thirty days under section 24 (1) of the Act. The sample was sent for analysis to the Regional Pesticides Testing Laboratory at Chandigarh on 26.7.2005 but the report was sent by the Laboratory on 29.10.2005, nearly 79 days later as compared to the mandatory 30 days provided by law. It is next submitted that section 24(4) of the Act vests a right in the petitioners to demand a re-test of the sample. The petitioners did so. But this statutory right was frustrated by the respondents failing to take any - 2 - action when the shelf life of the seized product expired in October, 2006 and only thereafter the present prosecution was filed on 20th December, 2006. He relies upon a judgment of the Supreme Court in the case of State of Haryana Vs. Unique Farmaid (P) Ltd. & others reported in (1999) 8 SCC, 190. Learned counsel for the state opposing the application submitted that the test analysis report of the Laboratory at Chandigarh appeared to have reported that the same did not conform to the relevant specification in the active ingredient content requirement and was, therefore, misbranded. The relevant provisions of the Act falling for consideration are Sub-sections (1), (3) and (4) of Section 24 of the Act which the Court considers appropriate to quote hereinafter: “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 sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form. (2) xxx xxx (3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty eight days of the receipt of a copy of the report notified 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. (4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of the Insecticide 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 sent for test or analysis to - 3 - the said laboratory, which shall make the rest or analysis and report in writing signed by, or under the authority of, the Director of the Central Insecticides laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.” It would, thus, be seen that section 24(1) of the Act specifically states that the analyst to whom sample of insecticides had been sent for test under the provisions of section 22(6) of the Act was required mandatorily the word being used “shall”, to submit the report of analysis within thirty days. This period originally was sixty days but by the Insecticides (Amendment) Act, 2000 with effect from 7.8.2000 the same was reduced to 30 days. This, obviously, was a provision incorporated in protection of those sought to be prosecuted for violation of the Act to enforce the provisions of the Act in law but simultaneously protecting those sought to be prosecuted from a prosecution contrary to law or by abuse of the powers of prosecution. On the facts of the present case, it is apparent that the report of the analyst was not submitted within 30 days from the date it was sent but nearly 79 days later. The petitioners have placed on record the analyst report which confirms, as a fact, that the same was sent for analysis on 26.7.2005 and the report submitted 79 days later as is evident from the report placed on record. The analysis test report also corroborates the submission of the learned counsel for the petitioners that the shelf life of the seized product was only upto October, 2006. It is the specific pleading of the petitioners, supported by documentary evidence at Annexure-4, that within the expiry date of shelf life of the product the petitioners on - 4 - 10.1.2006 had exercised statutory right under section 24(4) of the Act to seek re-test of the sample of insecticides. The prosecution took no step on the same and allowed the shelf life of the product to expire rendering nugatory the statutory right of the petitioners to have the sample re-examined/ re-testing to prove their innocence. In the case of Unique Farmaid (P) Ltd. (Supra) relied upon by the learned counsel for the petitioners a same issue arose for consideration before the Supreme Court when the High Court quashed the prosecution under the Insecticides Act in exercise of power under section 482 of the Code of Criminal Procedure, 1973 for non compliance with the provisions of section 24(4) of the Act. The defence taken therein by the Company sought to be prosecuted for misbranding of insecticides likewise was that no action was taken by the Insecticides Inspector to have the sample re-tested in terms of their request and that by the time they were summoned to face trial, the shelf life of the insecticides, of which sample was taken, had already expired. They were, thus, deprived of their valuable right of defence under section 24 of the Act. They were quashed on the basis that it would be an abuse of the process of the Court for the complaint to proceed further. The Supreme Court noticed the intervening provision of section 24(3) of the Act and held that the petitioners by denial of their right to have a re-test were denied a statutory right in the following terms at paragraph 12 of the report: “ 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 - 5 - 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.” This judgment of the apex Court has been followed in Medicamen Biotech Limited and another Vs. Rubina Bose, Drug Inspector, reported in (2008) 7 SCC, 196 holding that the prosecution was bad when those sought to be prosecuted under the Act have been deprived of the valuable right of re-test during the life time of the product under section 24(4) of the Act. The facts of the present case on which the prosecution is questioned are startingly similar. The aforesaid discussion leaves this Court to the conclusion that in face of non compliance of the statutory provisions under the Act, the present prosecution is to the prejudice of the petitioners, affecting their defence vitally and to allow the prosecution to continue shall be a gross abuse of the process of the Court. In the result, the entire proceedings in complaint case no. 74 - 6 - of 2006/T.R. No. 1992 of 2007 including the order of cognizance dated 20.12.2006 pending before the Chief Judicial Magistrate, Sasaram is hereby quashed. This application stands allowed. (Navin Sinha, J.) AMIN