THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL PETITION No.7528 of 2009 AND CRIMINAL PETITION No.7681 of 2009 CRIMINAL PETITION No.7528 of 2009 BETWEEEN: 1. Sri Kachan Srinivas & 2 others. … Petitioners AND 1. State of Andhra Pradesh & another. … Respondents CRIMINAL PETITION No.7681 of 2009 BETWEEEN: 1. Sri Manchala Venugopal, S/o.Laxminarayana & 4 others. … Petitioners AND 1. State of Andhra Pradesh & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.7528 of 2009 AND CRIMINAL PETITION No.7681 of 2009 ORDER: Common questions of law arise for consideration in these two criminal petitions. 2. The petitioners are accused of offence punishable under Section 29(1)(a)/3(k)(1) of the Insecticides Act, 1968 (in short, the Act) in CC.No.662 of 2007 (old CC.No.350 of 2005) and CC.No.663 of 2007 (old CC.No.602 of 2005) on the file of Judicial Magistrate of the First Class, Siddipet. The petitioners 1 to 3/A1 to A3 in Crl.P.No.7528 of 2009 are Dealer and Marketing Manager and Manager (Quality Control and Production) of the manufacturer of the Insecticide in respect of which sample was taken in CC.No.662 of 2007. In Crl.P.No.7681 of 2009, the petitioners 1 to 5/A1 to A5 are two managing partners of the dealer, the distributor, the manufacturer and the manager (Quality Control and Production) of the manufacturer of the Insecticide, in respect of which sample was taken in CC.No.663 of 2007. 3. Placing reliance on State of NCT of Delhi Vs. Rajiv Khurana[1] of the Supreme Court, it is contended by the petitioners’ counsel that the complaint should contain necessary allegations in order to mulet criminal liability on them and that the allegations should show their responsibility for the conduct of the company’s business. The Supreme Court held therein on this aspect as follows: “18. The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of company’s business. Every Director need not be and is not in charge of the business of the company. If that is the position with regard to a Director, it is needless to emphasise that in the case of non-Director officers, there is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable.” 4. In CC.No.662 of 2007, description of A1 to A3 in the complaint is as follows: “The A1 represents the Dealer firm by Name M/s. Jayakarthik Traders, Subash Road, Siddipet. The A2 represents Manager (Day to Day Administration) manufacturing firm by name M/s. Insecticides India Limited. The A3 represents Manager, Quality Control & Production.” 5. Since A1 is the person who was dealing with the insecticide in question, he cannot escape liability on this point. Insofar as A2 is concerned, even though there is no detailed and elaborate description of him, it was stated in a cryptic manner that he was manager of the manufacturing company looking after day to day administration. There is specific averment that the A3 is the manager who was in charge of the Quality Control and Production. 6. In CC.No.663 of 2002, A1 and A2 are managing partners of the dealer firm M/s. Sai Traders. The designation and the description of A1 and A2 as managing partners undoubtedly indicate that they were incharge of management of the dealer firm. A3 who is the distributor, was impleaded in the name of the firm only represented by one Kacham Srinivas. Kacham Srinivas is not being prosecuted individually or personally. He is representing only the distribution firm. Insofar as A5 is concerned, he is described as Manager (Quality Control and Production) which indicates that he was in charge of the production as well as Quality Control of the manufacturing product. A4 is described as manager of the manufacturing company. It is stated in the complaint that A4 represents the Manager (day to day administration) of the manufacturer. 7. Thus, there are valid and legal descriptions of all the accused in both the cases to implead them for the purpose of their prosecution of the offence complained in the complaints. This is not a case where the persons are being prosecuted without they having any connection with day-to-day administration or with production or with Quality Control of the manufacturer or distributor or the dealer. In that view of the matter, it does not lie with the petitioners to contend that they are being un-necessarily prosecuted without proper allegations of their participation in day-to-day administration or in manufacture etc. of the insecticide. 8. Secondly, it is contended by the petitioners’ counsel that the petitioners are not afforded reasonable opportunity of sending the second sample to the Central Insecticide Laboratory for further analysis and second report as per law, in as much as the complaints in these cases were filed almost at the fag end of shelf life of the sample and by the time summonses were served on some of the petitioners, shelf life of the sample expired and it made the formality of sending second sample to the Central Insecticide Laboratory as only an empty formality. For the purpose of appreciating this contention, relevant dates and facts are necessary. 9. In CC.No.662 of 2007, the Insecticide Inspector collected the sample of Himil (Metalaxyl 8%+Mancozeb 64%) and Kitazin 48%. The sample was taken on 13.07.2004. After following the procedure, one of the samples was sent to D.D.A. (I.A.) PTL and Coding Centre, Hyderabad for analysis and opinion. Report dated 29.07.2004 was received in respect of Himil as misbranded. The Insecticide Inspector served the analyst report to the dealer/A1 on 03.08.2004. On 06.08.2004, the Insecticide Inspector deposited the property and the records before the Magistrate. The District Collector, Medak, accorded sanction to launch the prosecution of the dealer and the manufacturer by sanction order dated 08.03.2005. Thereupon, the complainant namely Assistant Director of Agriculture(R), Siddipet, prepared the complaint on 11.04.2005 and filed the same before the Magistrate on 12.04.2005. The lower Court took cognizance of the offence against the accused on 26.04.2005 and ordered summonses to A1 to A3 and posted the case to 01.07.2005. In this case, date of expiry of the collected sample is 6/05 as noted in Form-17 of the report of the Insecticide Analyst. Thus, shelf life of the sample Insecticide is expired by 30.06.2005. 10. In CC.No.663 of 2007, the Insecticide Inspector collected sample of Rogerin from the trader namely M/s. Sai Traders, Siddipet on 27.08.2004. After following the due procedure, the Insecticide Inspector sent one of the samples to the D.D.A (I.A) PTL and coding centre, Hyderabad for analysis. After analysis, the report dated 18.06.2005 was sent opining that the sample Dimethoate 30% EC with trade name Rogerin is misbranded. The Insecticide Inspector served analyst report on the dealer on 24.06.2005. He also sent other samples and the seized records of the dealer to the Magistrate on 20.07.2005. The District Collector, Medak, accorded sanction to launch prosecution against the manufacturer and the dealer by sanction order dated 01.10.2005. Thereupon, the complaint was filed before the Magistrate on 09.11.2005. The Magistrate took cognizance of the offence against the accused by order dated 08.12.2005 and directed issuance of summonses to A1 to A5 noting date of appearance of the accused as 02.02.2006. As per Form No.21 of the Insecticide Inspector submitted to the Government analyst, expiry date of the sample insecticide is 12/05. Thus, shelf-life of the sample insecticide is upto 31.12.2005. 11. It is contended that because summonses were served on the accused after shelf-life of the sample insecticide, the accused could not avail the opportunity of sending another sample to the Central Insecticide Laboratory under Section 24 of the Act. In State of Punjab Vs. National Organic Chemical Industries Limited[2], the supreme Court held that after receipt of the report, the accused would be notified of the result of the report and thereafter, the complaint is required to be lodged in the Court and that at that stage, two options are open to the accused i.e., the accused is entitled to have the copy of the sample entrusted to him to have it notified to the Court for proving to be contrary to the conclusive evidence of the report of the analyst and after such a notification having been given to the Court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given as proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide analyst under Section 24(3) of the Act; and the other option is, after the complaint is laid in the Court, the copy of the sample that is lodged with the Court by the Insecticide Inspector, could be requested to be sent by the Court to the Central Insecticide Laboratory and the report thus given by the Director of Central Insecticide laboratory shall be conclusive evidence as to the quality, consent and facts stated therein. It is reiterated by the supreme Court that the cost of analysis by the Central Insecticide Laboratory is to be borne either by the complainant or by the accused as may be directed by the Court. It was stated so in Section 24(5) of the Act itself. It is contended by the Public Prosecutor that in CC.No.662 of 2007, the trader namely A1 exercised the option of notifying his intention to send the second sample to the Central Insecticide Laboratory within the prescribed period and that inspite of it, the trader has not deposited the cost for the second analysis by the Central Insecticide Laboratory. It is not incumbent on A1/trader to deposit the probable cost for the second analysis of the sample by the Central Insecticide Laboratory immediately after or simultaneously with notification of his intention challenging the insecticide analyst report. It is for the Court/Magistrate to decide and order as to which of the parties has to bear the cost of second analysis of the sample by the Central Insecticide Laboratory. Without any decision and order by the Magistrate under Section 24(5) of the Act, there is no liability on the accused who notified his intention to send the second sample to the Insecticide Laboratory, to deposit the probable cost of the second analysis. In any event, there are two stages when the accused can exercise the option of taking steps to send the second sample to the Central Insecticide laboratory for second analysis and report. The second stage is after filing of the complaint before the Magistrate. In these two cases, the second option has become futile because by the time of service of summonses on the accused informing them about institution of the complaint against them, shelf life of the sample insecticide already expired. Therefore, even if at that point of time the accused took any steps for sending the second sample to the Central Insecticide Laboratory, then it becomes a futile exercise on their part, as life of the sample insecticides had expired. Thus, the accused /petitioners in these two cases have lost their valuable defence by way of challenging insecticide analyst report by notifying their intention to send second sample to the Central Insecticide Laboratory because of the delay in institution of the complaints by the Insecticide Inspector. 12. In Northern Mineral Ltd. Vs. Union of India[3], the supreme Court took note of the fact that shelf life of an insecticide shall have its bearing when it is tested or analysed in the laboratory. The supreme Court observed: “ 11. Under the scheme of the Act when the accused had notified its intention to adduce evidence in controversion of the report of the Insecticide Analyst, the legal fiction that the report of the Insecticide Analyst shall be conclusive evidence of the facts stated in its report looses its conclusive character. The Legislature has used similar expression i.e. the “intention to adduce evidence in controversion of the report” in both sub-=section (3) and sub section (4) of Section 24 of the Act, hence both the expression has to be given one and the same meaning. Notification of an intention to adduce evidence in controversion of the report takes out the report of the Insecticide Analyst from the class of “conclusive evidence” contemplated under sub-section (3) of Section 24 of the Act. Further intention of adducing evidence in controversion of the Insecticide Analyst report clothes the Magistrate the power to send the sample for analysis to the Central Insecticides Laboratory either on its own motion or at the request of the complainant or the accused. In face of the language employed in Section 24(4) o the Act, the act of the accused notifying in writing its intention to adduce evidence in controversion of the report in our opinion shall give right to the accused and would be sufficient to clothe the Magistrate the jurisdiction to send the sample to Central Insecticide Laboratory for analysis and it is not reuired to state that it intends to get sample analysed from the Central Insecticides Laboratory. True it is that report of the Insecticides Analyst can be challenged on various grounds but accused cannot be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion. The moment it is done conclusive evidentiary value of the report gets denuded and the statutory right to get the sample tested and analysed by the Central Insecticides Laboratory gets fructified.” 13. In that view of the matter, since the petitioners/accused in both the cases have lost their valuable defence of sending the second sample of the insecticides to the Central Insecticide Laboratory by way of challenging the insecticide analyst report, allowing prosecution of the accused for the offences alleged against them would be a futile exercise by the lower Court. 14. In the result, both the Criminal Petitions are allowed quashing proceedings in CC.Nos.662 of 2007 and 663 of 2007 on the file of Judicial Magistrate of the First Class, Siddipet. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 08.04.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.7528 of 2009 AND CRIMINAL PETITION No.7681 of 2009 DATED: 08.04.2011 ysk [1] AIR 2010 SUPREME COURT 2986 [2] (1996) 11 SCC 613 [3] 2010 (3) ALT (Crl.) 65 (SC) = 2010(7) SCC 726