77 Crl Misc No M4904 of 2007 O6Ml 11 L INTHE HIGH COURT OF PUNJAB6 HARYANA CHANDIGARH Crl Misc No Me4904 of 2007 106Ml Date of Decisionl Northern Minerals Limited and others Petitioners Versus m tr State of Haryana Respondent 0 0 Coraml Honble Ms JusticeRitu Bahri I 5 I lTo be referred to the Reportersor not7 Z 2 Whether the judgmentshould be reportedin the Digest7 Q Present Mr Arun Nehra Advocate for the petitioners L3 Mr PSirk DAG Haryana Z for the respondent C0 W3 RITU BAHRI J Z Om Quashingof complaintdated 12A2004 bearing No 13212Ol2004 64nnexure P IS sought with all 1 consequentialproceedings On 2682003 the Sub Divisional Agricultural OfficercumeInsecticide InspectorJhajjar drew a sampleof insecticide Chlorpyriphos20010EC from Mls Dabas Khad Beej BhandarJahazgarhJhaj The date of manufacturingof the insecticide was November 2002 and date of expiry was KUMAR SURESH SHAM LAL 2012.07.10 12: 24 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 78 04 11 Crlvlisclo Mm4904of 2007 06Ml 121 October 2004 The samplevvassent for chemical analysisto Senior Analyst Quality Control Laboratory Karnal on 192003 and on 1892003 a report was sent declaringthe sample to be misbranded On 3092003 this report Annexure Pm21was sent to the petitionerMls Debas Khad BeejBhandar JahazgarhJhajjarinformingwhy action be not 1 taken under Section 19 of the Insecticides Act The petitioner r companyreceived this Ietter from Mls Dabas Khad Beej 0 0 Bhandar Jahazgarhjhajjaron 8102003 The petitioner X 0 beingthe manufacturer of this insecticide sent a reply on I 29102003 to the DeputyDirector AgricultureDisputingthe Z reportof the Senior Analyst QualityControl Laboratory Karnal a requestfor second samplefor reeanalysisto Central Insecticide Laboratory Faridabad was made on Z 29102003 Annexure P41 This Ietter was received by the QO DeputyDirector Agricultureon 3102003 The petitioners S7 were informed vide Ietter dated 4112003 04nnexureP51 Z that they should file an appropriateapplicationbefore the Court of competent jurisdictionto get the second sample examined from the Central Insecticide Laboratorythrough the order of the Court A complaint was initiated on 2112004 by Sub Divisional AgriculturalOfficer against the petitionersThe petitionersafter receivingthe Ietter dated 4112003 Annexure P51filed an applicationin the Court of Chief Judicial MagistrateJhajjar on 11122003 Annexure KUMAR SURESH SHAM LAL 2012.07.10 12: 24 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 79 Crlvlisclo144904 of 2007 06Ml 1 3 1 P81under Section 2431 of the Insecticides Act making a for sending the sample to Central Insecticide Faridabad Notice was issued on the application filed by the petitionerson 1122003 On 192004 the service was completed on the respondentsand it was for further consideration On 1562004 the matter 1m was adjournedto 1722004 On 17122004 on the request r of the respondentsthe case was adjournedto 722005 for 0 0 the samplesand for filing of reply On 722005 X C5 sampleswere not producedreply was not filed and it was I adjournedfor 42005 Mr PSirk DAG Haryana has not Z disputed the above factual positionin the case Mr Arun Nehra Iearned counsel for the petitioner I has referred to a judgmentof the SupremeCourt in State of L2 Z HaryanaV UniqueFarmaid P Ltd 2000 11 P 1 290 to CO contendthat once the shelf Iife of the insecticide has expired m the accused is deprivedof his rightto get the second sample Z retested by the Central Insecticide Laboratory Even a requestfor third samplecannot be rejectedby the Courts He has also referred to a judgmentof this Court in Balwant ngh Vp State of Punjab through Insecticide Inspector JalalabadDistnct Ferozepore1997 21 RI minall 245 Mr Nehra has further arguedthat the complaintis IiabIe to be quashedas there are no averments that petitionerNoe Ram GopalAggarwal Director of the company was involved KUMAR SURESH SHAM LAL 2012.07.10 12: 24 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 80 0 1 11 Cr Misclov14904 of 2007 O6Ml 141 in day to dayfunctioningof the company He cannot be prosecutedmerelyon the groundthat he was a Director of theCompanyThe SupremeCourt in State ofNCTofDelhi v Rav Khurana 2010 Il RAJ 496 has held that under Section3311 of the Insecticides Act 1968 a person can be summonedto face the trial if he was at the time when the j offencewas committed Inchargefor day to day affairs of the absent in the contents of companyThese allegationsare 0 0 the complaintAnnexure P31dated 3092003 X t5 Heard Iearned counsel for the parties I It is not disputedthat the applicationhad been Z made on 11122003 Annexure Pe81by the petitionersIll r the appropriateCourt for getting the second sample re I tested After filing this applicationnotice was issued to the Z respondentsto producethe samplein Court Service was 0 effected on 92004 and the samplewas not producedon Vm2 722005 when the shelf Iife had expired in October 2004 Z Il This proceduraldelay which is evident from the zimni orders Annexure P91 has not been denied in the reply filed by the respondents of the second sa mple was not intentional and there was no mala on the part of the respondentsBy acceptingthe explanationgiven for nor productionof second sample valuable right of the petitionershas been Iost On this aspect the SupremeCourt Itl State of Haryana Vs UniqueFarmaid P Ltdsupral has KUMAR SURESH SHAM LAL 2012.07.10 12: 24 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 81 Q 1 Cr Mlsce No44904 of 2007 O6Ml 1 5 1 observed as underl Subsectior11 of Section 30 which appears to be relevant only prescribesin effect that ignorance would be of no defence but that does not mean that if there are contravention of other mandatory provisions of the Act the accused have no 1 lr remedy Procedure for testing the sample IS 0 prescribedand if it is contravened to the prejudice 0 of the accused he certainly has right to seek I 9 dismissal of the complaint There cannot be two I opinionsabout that Then In order to safeguard Z the right of the accused to have the sample tested from Central Insecticides Laboratory it IS I incumbent on the prosecutionto file the complaint Z expeditiouslySo that the right of the accused IS m not Iost In the present case by the time the 7 respondentswere asked to appear before the Z Court expiry date of the insecticide was already 0 over and sendi77gof sample to the Central Insecticides Laboratoryat that Iate stage would be 1 of no consequence This ISSue is 170 Ionger res integ Il This view of the SupremeCourt has been followed in Mls Ajay Fert Chem 1BombaylPrivate Limited v State of Haryana2002 31 RCR Criminall 771 Since the second KUMAR SURESH SHAM LAL 2012.07.10 12: 24 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 82 0 t CrlVliscJo M4904 of 2007 O6Ml 161 d samplewas not produced before the Court and the shelf Iife had expired the complaintis Iiable to be quashedon this ground The first samplewas ta ken on 268 2003 a nd the shelf Iife was to expirein October 2004 On an application made by the petitioner the second sample was not 1 producedbefore the Court till February2005 The complaint dated 122004 bearingNo 132121012004 lnexure Pll 0 0 IS quashedwith all proceedings I C5 Petition is disposedof I Z C 13 1 ol 2011 RITU BAHRI I 1 Rupi JUDGE I ri0 1 17 Z 1 r KUMAR SURESH SHAM LAL 2012.07.10 12: 24 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document