IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.7879 of 2007 DATE:08.07.2010 Between: M/s.Pragati Glyaxal (P) Ltd and others …… Petitioners/Accused 1 to 4 And: The State of A.P., rep. By its Public Prosecutor and another. …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.7879 of 2007 ORDER: The petitioners 1 to 4/A-1 to A-4 are accused of offence punishable under Section 29 of the Insecticides Act, 1968 (in short, the Act) for contravention of Sections 17, 18 read with Section 3 of the Act. Product in respect of which sample was taken by the Inspector was Fenphal, Fenvalerate 0.4% D.P. Sample was lifted on 26.08.2005 from A-4’s shop at Kadiri. It was manufactured in 11/04 and date of expiry thereof was noted as 10/06. After lifting the sample, it was sent to the insecticide analyst who after analysis, reported that the sample fails to conform to the relevant B.I.S specifications in the test of active ingredients content and hence misbranded. There is no dispute that immediately after receipt of the said report of the insecticide analyst, copy thereof was served on the petitioners. They did not exercise their right to send second sample to the Central Insecticide Laboratory within 28 days as provided in Section 24(3) of the Act. Subsequently the 2nd respondent filed complaint before the Additional Judicial Magistrate of the First Class, Ananthapur in C.C. No.387 of 2001 against A-1 to A-4 on 03.03.2007. 2) It is contended by the petitioners’ counsel relying upon Mallela Lakshmi V. State of Andhra Pradesh[1] that since the complaint was filed by the 2nd respondent before the Magistrate after shelf life of the sample expired, the petitioners/accused are deprived of their valuable right of defence by way of sending second sample to Central Insecticide Laboratory and to obtain a second opinion and that it caused serious prejudice to the defence of the accused. The said reported decision was rendered under the Seeds Act and not under the Insecticides Act. Relevant provisions in the Act are contained in Section 24 and they read as follows: “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 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 form 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 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 proceeding in respect of the sample are pending that he intends to adduce evidence in contravention 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, 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 facts stated therein.” 3) Under Section 24(3) of the Act, A-4 has right to send second sample to Central Insecticide Laboratory within 28 days of receipt of copy of the report. Mode of exercising the said right is also enunciated in Sub Section (3) to the effect that the accused has to notify in writing to the insecticide inspector or the Court before which any proceeding in respect of the sample are pending, about his intention to adduce evidence in contravention of the public analyst report. In the absence of such notification in writing by the accused of his intention to adduce evidence in contravention of the report, the question of the accused sending second sample to the Central Insecticides Laboratory may not arise at all. As per sub-section (4), where the accused notified his intention under Sub- section (3) of his intention of adducing evidence in controversion of the Insecticide Analyst Report, it is open to the Court either on its own motion or in the discretion at the request either of the complainant or of the accused to cause the second sample of the insecticide to be sent for test or analysis to Central Insecticide Laboratory. In the case on hand, admittedly none of the petitioners including A-4 exercised the said right by notifying intention as contemplated under Sub-section(3) of Section 24 within the prescribed period of 28 days of service of public insecticide analyst report on A-4. In that view of the matter, the petitioners cannot be permitted to question the public insecticide analyst report or to contend that their valuable right of defence was lost. 4) It is next contended by the petitioners’ counsel that under Section 30(3) of the Act, A-4 is not liable because the sample was taken in a sealed condition from A-4’s shop and because he has disclosed the manufacturer of the insecticide. Simply because the sample was taken in a sealed condition and A-4 disclosed name of the manufacturer from whom he obtained the insecticide, A-4 would not be absolved from liability automatically. Section 30(3) of the Act contemplates proof of three conditions noted as (a)(b)(c), as a conditions precedent for absolving his liability for the offence. 5) It is contended by the petitioners’ counsel that A-2 was unnecessarily impleaded in this case and that there is no allegation in the complaint which fixes A-2 as an accused in this case. Under Section 33 of the Act, it is only the persons who were in-charge of, or was responsible to the company for the conduct of the business of the company, as well as the company who are liable for prosecution. The complainant gave no designation of A-2 in A-1 company. It is only in the cause title it was stated that A-2 is person responsible for day to day administration. It is not stated in what capacity or with what designation he was responsible for day to day administration. The complainant impleaded A-3 also as an accused person on the ground that A-3 is Managing Director of A-1. Therefore, in the absence of allegations as contemplated under Section 33 of the Act and in the absence of disclosing designation of A-2 in A-1 company, this Court is of the opinion that the complainant could not make out any case as against A-2 only. 6) In the result, the criminal petition is partly allowed quashing proceedings in C.C. No.381 of 2007 in so far as the 2nd petitioner/A-2 is concerned; and the petition is dismissed in all other respects. _______________________________ SAMUDRALA GOVINDARAJULU, J July 8, 2010 KSH [1] 2003 CriLJ 638