IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33825 of 2008 Ashwin Shroff S/o Late Champraj Shroff, Chairman, M/s Excel Crop Care Lted., 184/87, Swami Vivekanand Road, Jogeshwari (West), Mumbai ---------- Petitioner Versus THE STATE OF BIHAR ----- Opp.Party ----------- For the petitioner : M/S N.K.Agrawal, Sr. Advocate and D.N.Tiwary, Advocate For the State : Dr.Maya Nand Jha, A.P.P. ------------ O R D E R 2 14-01-2009 The petitioner, the Chairman of M/S Excel Crop Care Ltd.,Mumbai( hereinafter referred to as “ the Company”) has preferred this application for quashing of the order dated 12.9.2007 passed by the Sub Divisional Judicial Magistrate, Ara, in Case no.16 ( C) of 2007 , whereby he has taken cognizance under Section 29 of the Insecticides Act,1868( hereinafter referred to as “ the Act”). It appears that the Insecticides –cum- Plant Protection Officer, Bhojpur, Ara, filed the aforesaid complaint on 9.5.2007 impleading the Company and the Proprietor of M/S Sain Krishi Kendra, Ara, ( Ashok Kumar Sinha) alleging violation by them of the provisions of the Act. It was alleged that from the shop premises of M/S Sain Krishi Kendra, having licence under the Act, samples of insecticides ( Clorephyrephos 20 % ) was taken and sent for chemical analysis to Faridabad. The manufacturing date and the expiry date as mentioned in the sample was June, 2005 and May, 2007 respectively. The produce manufactured by the Company was found misbranded in the test report and as such the two accused were alleged to have - 2 - violated the provisions of the Insecticides Act. The Joint Director, Agriculture, Plant Protection vide letter no.495 dated 30.4.2007 directed for launching prosecution. The learned counsel for the petitioner has raised two vital issues for the consideration of the court. First according to Section 33 of the Act it was necessary for the prosecution to make an allegation against the petitioner that the offence was committed with the consent, connivance and knowledge of the petitioner. The petitioner being the Chairman of the Company could not be made liable for the alleged offence in any way. That apart the sanction for the prosecution under Section 31 of the Act was for prosecution of the Company and not for the chairman. It is well settled law that the sanction or authorization should not be only for the offence but the offender as well. In that view of the matter the filing of the complaint against the petitioner was not only bad in law but an abuse of the process of the court. It was next submitted that admittedly the sample was taken on 24.8.2006 and the sample was sent for chemical analysis on 28.8.2006 and the analysis was done on 18.10.2006. However, the complaint was filed on 9.5.2007 and cognizance was taken on 12.9.2007. It only points to the clear violation of the provisions of Section 24 of the Act according to which the analyst is required to deliver the test report within a period of 30 days to the Insecticides Inspector. In the instant case the sample was received at Faridabad on 29.8.2006 and the analysis report was sent on 18.10.2006 i.e. after about 50 days. It would also appears that cognizance was taken on - 3 - 12.9.2007 much after the expiry date of the product which was May,2007 which in effect deprived the right conferred under Section 24(4) of the Act to an accused to get the second sample re-tested by the Director of the Central Insecticides Laboratory. In State of Punjab Vrs. National Organic Chemical Industries Ltd. reported in JT 1996(10) SC 480 the Supreme Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have the sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. The court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The court further held that the accused had been deprived of a valuable right statutorily available to him. To my mind both the issues raised by the learned counsel for the petitioner has to be answered in his favour. Accordingly, this application, so far as the petitioner is concerned, succeeds and the impugned order so far as the petitioner is concerned is quashed. NKS/- ( Abhijit Sinha, J )