CRM No.M-10893 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. CRM No.M-10893 of 2008 Date of Decision:- 22.12.2011 M/s Fungicide India Ltd. and another ...Petitioners Versus State of Haryana .... Respondent 2. CRM No.M-10823 of 2008 M/s Fungicide India Ltd. and another ...Petitioners Versus State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present :Mr. Rajesh Garg, Advocate, for the petitioners. Mr. Kartar Singh, Deputy Advocate General, Punjab. *** AUGUSTINE GEORGE MASIH, J. By this order, I propose to decide CRM No.M-10893 of 2008 titled as 'M/s Fungicide India Ltd. and another Vs. State of Haryana' and CRM No.M-10823 of 2008 titled as 'M/s Fungicide India Ltd. and another Vs. State of Haryana' as common questions of facts and principle of law are involved in these petitions which position has been conceded to by the counsel for the parties. For convenience facts are being taken from CRM No.M-10893 of 2008. Petitioner No.1 is a Company engaged in manufacture of various insecticides as permissible under the Insecticides Act, 1968 (hereinafter referred to as 'the Insecticides Act') and petitioner No.2 is the Managing Director of the Company. Petitioner Company has been granted CRM No.M-10893 of 2008 -2- permission by the State of Haryana to sell and distribute its products. M/s Chandra Beej Bhandar, Palwal was selling the products manufactured by the petitioner Company and from its premises sample of Chloropyriphos 20% was drawn by the Sub-Divisional Agriculture Officer, Palwal on 18.12.1999. Sample was sealed and packed according to the provision of the Insecticide Act and was sent for analysis on 24.12.1999 to the Quality Control Laboratory, Karnal. As per the report of the Senior Analyst, Quality Control Laboratory, Karnal dated 20.02.2000 (Annexure P-2), the sample was found to be misbranded on the ground that the required specification was 20% which on chemical analysis was found to be 15.45% with a variation of 4.55. On the basis of the said report, complaint dated 08.08.2000 (Annexure P-3) was filed in the Court of the Chief Judicial Magistrate, Faridabad which issued order dated 10.08.2000 summoning the petitioners as an accused under Section 29(3) of the Insecticide Act. As per the petitioners, the summon was never served on them. However, on the basis of a communication dated 11.03.2008 issued by the Director Agriculture, Haryana, it came to the notice of the Company that two complaints under the Insecticide Act are pending in the Court of the Chief Judicial Magistrate, Faridabad wherein the petitioners have been declared proclaimed offender on 25.09.2006. Faced with this situation, petitioners have approached this Court praying for quashing of the complaint on the ground that the report of the Chemical Analyst declaring the sample to be misbranded cannot sustain in the light of the fact that the permissible tolerance limit for variation is +/- 5% and the variation being 4.55, the same was within the tolerance variation limit. Upon notices having been issued, respondents have filed reply wherein it has been stated that the report of the Senior Analyst, Quality CRM No.M-10893 of 2008 -3- Control Laboratory, Karnal (Annexure P-2) is correct. It has also been stated that the technical contents in the report were stated to be 15.45% whereas the required content was 20% Chloropyriphos insecticide. Thus, the variation is -4.55 but the same is not the percentage content. The permissible tolerance limit for variation is +/- 5% meaning thereby that the permissible tolerance limit for variation is +/- of percentage basis whereas in the misbranding of insecticide the variation is 4.55 in the insecticide of Chloropyriphos 20% and accordingly, it has been prayed that the petition deserves to be dismissed. Counsel for the petitioners has argued the cases on the lines as has been pleaded by the petitioners. Reliance has also been placed on a judgment of this Court in the case of M/s Vikas Pesticides, Ladwa and others Vs. The State of Haryana, 1994(XXI) The Criminal Law Times, 292, to contend that the misbranding, as has been reported by the Chemical Analyst, variation has to be taken from the nominal value and not from the nominal value percentage. The relevant portion of the judgment reads as under:- “From the above findings of the Senior Analyst, it is clear that as per requirement of ISI specification Technical/gamma Isomer contents should be 30% whereas on actual chemical analysis, it was found to be 25.25% and as such, the tolerance in variation in its contents has been noticed as 4.75%. The senior analyst has clearly stated that permissible limit of tolerance in variation on either sides 5%. If that is so, then variation to the extent of 4.75% as found by the senior analyst cannot be said to be not confirming to the standard as per ISI specification. As such the petitioners cannot be said to have committed any offence under the provisions of the act.” Keeping in view the above observations of the Court, direction CRM No.M-10893 of 2008 -4- was issued to the respondents to file an affidavit clarifying the position in this regard. In pursuance to the order passed by this Court, affidavit of Shri Ramvir Singh Yadav, Senior Analyst, Quality Control Laboratory, Karnal dated 15.12.2011 has been filed, which reads as follows:- “1. That the Hon'ble High Court vide its order dated 01.12.2011 observed as follows - “Counsel for the petitioner on the last date of hearing placed reliance on the judgment of this Court in the case of M/s Vikas Pesticides, Ladwa and others Versus the State of Haryana, 1994(XXI) The Criminal Law Times 292 to contend that the misbranding as has been reported by the Chemical Analyst variation has to be taken from the nominal value and not from the nominal value percentage....” 2. That the deponent is working as a Senior Analyst in the Quality Control Laboratory at Karnal and is well conversant with the method of analysis of Insecticides/Pesticides which is done in accordance with BIS specifications. 3. That a sample of Chloropyriphos 20% EC was received from the Deputy Director of Agriculture, Faridabad vide his letter No.6127 dated 23.12.1999, which was analysed in the Quality Control Laboratory (Pesticides) Karnal by the then Senior Analyst. After analysis, the following technical contents were found:- Requirement as per ISI Specification Actual Chemical Analysis Variation Permissible Tolerance Limit for Variation 20% 15.45% 4.55 +5% —5% As per the specifications, the permissible tolerance limit of technical contents on the higher side is to the extent of +5% i.e. the total technical contents should be 21% and the permissible tolerance limit of technical contents on the lower side is to the extent of -5% i.e. the total technical CRM No.M-10893 of 2008 -5- contents should be 19%. This implies that the permissible tolerance limit of technical contents of sample should fall between 19% to 21%. Beyond the above said limit on either side, the sample shall be deemed as “Mis-branded”. 4. That after analysis, the technical contents of present sample of Chloropyriphos 20% EC were detected as 15.45%, which is less than the permissible tolerance limit i.e. 19%, as such the sample was declared as Mis-branded.” On considering the submissions made by the counsel for the parties and keeping in view the affidavit dated 15.12.2011 filed by the Senior Analyst reproduced above, the contention of the counsel for the petitioner cannot be accepted. As is apparent from the heading of the report Annexure P-2, requirement as per ISI specification was 20% which on actual chemical analysis of the sample was found to be 15.45% which is a variation of 4.55. Permissible tolerance limit of technical contents of the sample for variation being +/- 5% which comes to 1% and has to be taken from the nominal percentage value of the specification and not the nominal value of the specification. The judgment relied upon by the petitioners i.e. M/s Vikas Pesticides, Ladwa (supra) does not deal with this aspect at all and the same has been decided on the basis of wrong principle i.e. taking the nominal value instead of the nominal percentage value of the specification and thus cannot be of any help to the petitioner. In view of the above, contentions as raised by the petitioners in these petitions cannot be accepted and are hereby rejected. Finding no merits in these petitions, the same stand dismissed. 22.12.2011 (AUGUSTINE GEORGE MASIH) adhikari JUDGE