Criminal Misc. No. M- 31551 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M- 31551 of 2009 Date of decision:- 15.02.2011 Yayavarn Nageshwara Prasad and another ...Petitioners Versus State of Haryana ...Respondent CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Jagdish Manchanda, Advocate for the petitioners. Mr. Kshitij Sharma, AAG Haryana for the respondent-State. RITU BAHRI J. The present petition under Section 482 Cr.P.C. has been filed by the petitioners for quashing of complaint No. 607/2 of 2001 dated 05.12.2001 under Section 29 of Insecticides Act (Annexure P-1) as well as summoning order dated 05.12.2001 (Annexure P-2) and further proceedings arising therefrom. Brief facts are that M/s Punjab Beej Bhandar, Samalkha has been granted license under Section 13 of the Insecticide Act, 1968 for sale of stock and it was to comply with the provisions of Insecticide Act, 1968 and other terms and conditions given in the license. On 21.12.2000, the Insecticide Inspector, Panipat inspected the premises of M/s Punjab Beej Bhandar and drew a sample of Isoproturon 75% W.P., which was manufactured by M/s Aventis Crop Science India Ltd. The sample was packed and sealed according to the provisions of the Insecticide Act. The sample was sent to the Senior Analyst, Quality Control (Insecticide) Laboratory, Karnal. As per the analysis report, the sample of Isoproturon 75% W.P. was found misbranded. This sample was found 68.20% Criminal Misc. No. M- 31551 of 2009 -2- with variation 6.8%. Copy of this analysis report was sent to the manufacturer M/s Aventis Crop Science India Limited on 15.3.2001 under the registered post. The complaint was lodged on 05.12.2001 under Section 29 of the Insecticide Act against petitioners No.1 and 2. Petitioners were summoned to face trial vide order dated 05.12.2001. As per report of the Senior Analyst Quality Control Laboratory (Insecticides) State Agriculture Department Haryana, Karnal, manufacturing date of the sample was November 2000 and the date of expiry was October 2002. The report of the Senior Analyst was that the sample was misbranded. The petitioner has challenged the summoning order and the complaint, by filing this criminal miscellaneous. I have heard learned counsel for the parties and have gone through the whole record carefully. Mr. Jagdish Manchanda, Advocate counsel for the petitioners has argued that the sample of Isoproturon 75% W.P., Batch No. 50252 was manufactured in November 2000 and the date of expiry of sample was October 2002. The sample was taken on 21.12.2000 from the dealer M/s Punjab Beej Bhandar and notice of the summoning order has been served upon the petitioners after the expiry of the shelf life of the Insecticides. Therefore, the petitioners' mandatory right to get the sample re-analysis under Section 24 of the Insecticide Act has been taken away. The petitioners had appeared on 20.8.2004, as is evident from the details of the zimni orders, the shelf life of the sample was expired in October 2002. The summoning orders are liable to be quashed as they have passed without application of mind. Relies on State of Haryana versus Unique Farmaid P. Ltd. 2000(1) P.L.R. 290 to contend that once the accused summoned by the Court, when shelf life had expired, accused deprived of his valuable right to get second sample re-tested by Central Laboratory. Further relies on M/s Ajay Fert. Chem (Bombay) Private Limited versus State of Haryana 2002(3) RCR (Criminal) 771 to contend that Criminal Misc. No. M- 31551 of 2009 -3- once sample was found to be misbranded, notice not given to manufacturer and challan put up when shelf life had expired, manufacturer lost his right to get the sample re-analyzed. Mr. Kshitij Sharma, AAG Haryana has argued that the petitioners cannot deprived any benefit from the judgments cited by him. In the first case State of Haryana versus Unique Farmaid P. Ltd. (supra) after the samples of insecticide was found to be misbranded, the second sample was not sent to second laboratory though request was made by the accused to the authorities. The accused had been summoned when the shelf life of sample was expired. The accused has deprived of his valuable right to get second sample re-tested by the Central Laboratory. In the present case, the copy of the analysis report alongwith the sample was sent to the Manufacturer M/s Aventi Crops Science India Ltd. vide memo No.1077-79/Q.C. dated 15.3.2001 under the registered post. Once the accused was served the notice of analysis report, he had ample time to get the sample re-tested before October 2002 i.e. the date of expiry of the sample. He has failed to avail that opportunity. The facts of the present case do not attract the proposition of law settled by the Supreme Court in M/s Ajay Fert. Chem (Bombay) Private Limited's case (supra), no notice had been issued to the manufacturer of the misbranded sample, therefore, there was no question that manufacturer could exercise his right to get the sample re- analysis. In this case the challan was put up and the shelf life of sample had expired. I the present case the petitioner was summoned to face the trial vide order dated 05.12.2001 i.e. much before the date of expiry of the sample i.e. October 2002. Mr. Kshitij Sharma, counsel for the State has referred to Section 24 of the Insecticide Act, 1968, which is reproduced hereunder:- “24. 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, Criminal Misc. No. M- 31551 of 2009 -4- within a period of [thirty] days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form. (2) The Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample. (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 the said laboratory [which shall, within a period of thirty days, 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 result thereof, and such report shall be conclusive evidence of the Criminal Misc. No. M- 31551 of 2009 -5- facts stated therein. (5) The cost of a test or analysis made by the Central Insecticides Laboratory under sub-section (4) shall be paid by the complainant or the accused, as the Court shall direct.” As per Section 24 sub Clause (3) an analysis report shall be treated to be as evidence as conclusive evidence unless the person from whom the sample was taken within 28 days of the receipt of the copy of report shows an evidence to adduce evidence for controversion of the report. In the present case, notice was served upon the petitioners by registered post on 15.3.2001. No steps were taken by the petitioners to adduce evidence in controversion of the report. Hence, the report of the Senior Analyst become conclusive evidence against the petitioners. The petitioners could have taken the benefit of Section 24 sub Clause (4) for re-testing of the sample, which they had not chosen to do. Therefore, for all intention purposes, the report of the Senior Analyst is a conclusive evidence against the petitioners. The petition is hereby dismissed. February 15, 2011 ( RITU BAHRI ) Vijay Asija JUDGE