HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.5193 OF 2008 DATED.21-10-2011 ORDER: This Criminal Petition is filed by the Petitioners/Accused Nos.4 and 5 (For short, ‘A-4 and A-5’) under Section 482 of Cr.P.C. seeking to quash proceedings in C.C. No.52 of 2007 pending on the file of Principal Special Judge for S.P.E. and A.C.B. Cases at Hyderabad, registered for offence punishable under Section 420 read with Section 120-B I.P.C. 2. Whereas the Petitioners are A-4 and A-5, the Respondent is the Complainant in the Calender Case. For the sake of convenience, I refer the parties as arrayed in the Calender Case. 3. The case of the prosecution in brief is as follows : A-4 is the Managing Director and A-5, son of A-4, is the Director of M/s. H.P.M. Industries Limited, Delhi. A-1 to A-3 in this case are Senior Government Servants, Whereas, A-1 worked as in-charge Managing Director and A-2 worked as the General Manager of the Andhra Pradesh Health Medical and Housing Infrastructure Development Corporation Private Limited (In short, ‘APHMHIDC’) and A-3 worked as the Director of Health, Andhra Pradesh, Hyderabad, during the period from 28-03-2001 to 28-09-2004 A-1 to A-3 made several purchases, from several Companies, most of which were unnecessary and of substandard quality and also allegedly manipulated documents to show that there was proper sanction of the Government for the purchase of the articles. Thus, A-1 to A-3 caused substantial loss to the Government. The specific case of the prosecution against A-4 and A-5 is as follows : A-1 to A-3 purchased 650 MTs of Malathion 25% WDP worth Rs.3,04,67,450-00 during April to June 2004 and 100 MTs worth Rs.46,87,322-00 during July, 2003 from M/s. HPM Industries without following mandatory procedure, without calling tenders and without testing relevant samples before placing relevant purchase orders. The Laboratory tests revealed that Malathion supplied contained 0% to 4.74% Malathaion, as against required percentage of 23.75% to 26.25%. Thus the material was totally substandard. A-4 and A-5 are responsible for the supply of substandard material. A-3 influenced the process of purchase by sending Karnataka Rate contract agreement of the Accused and payment of Rs.46,87,322-00 was made during 2003 and part payment of Rs.30,46,524-00 was made during 2004 towards supplies and the balance amount of Rs.2,74,20,926/- was withheld due to this case. Hence, A-4 and A-5 are responsible for the alleged offence. 4. On the other hand, it is the contention of learned counsel for A-4 and A-5 that even though it is the claim of the prosecution that several substandard products were purchased from several companies including the Companies of A-4 and A-5 the case was registered only against A-4 and A-5 apart from A-1 to A-3, who are public servants and hence there was discrimination against A-4 and A-5 and in fact relevant samples were sent to the Indian Institute of Chemical Technology (Council of Scientific & Industrial Research, Hyderabad) pertaining to the product of A-4 and A-5 and that institute gave report to the effect : “Some of the above samples received on 20-03-2004 manufactured during 1999 and 2000 and when tested the samples were found to be standard. The self-life period of malathion 25% WDP is only one year from the date of manufacture. However, when the samples manufactured during 1999-2000, when tested on 28-10-2004 to my surprise the content of Malathion 25% WDP was found to be within the standard limits.” and absolutely there is no allegation of A-4 and A-5 cheating anybody, and in fact, the Government has to pay them an amount of Rs.3,00,00,000/- and odd for supplying necessary products to the Health Department in A.P. but so far that amount has not been paid and there is no incriminating material to prosecute A-4 and A-5 and in fact taking into consideration all the relevant circumstances, this Court in Crl.M.P. No.4545 of 2008, on 29-09-2008 directed the trial Court to split up the case against A-4 and A-5 and to proceed with the trial of the case in so far as A-1 to A-3 are concerned having granted interim stay of the proceedings so far as A-4 and A-5 are concerned and hence in those circumstances, the continuation of the proceedings against A-4 and A-5 is nothing but abuse of process of law and accordingly the Criminal Petition is liable to be allowed quashing the entire proceedings pending against A-4 and A-5. Further, it is his contention that by virtue of Sections 22 Read with 24 and 31 of the Insecticides Act, 1968 (In short, ‘the Act’) an opportunity should have been given to A-4 and A-5 after serving necessary notice to send second sample for enabling them to send the same to Central Food Laboratory, New Delhi for necessary analysis and report but such procedure was not followed and even supposing that the Chemical analysis report was filed to the effect that A-4 and A- 5 supplied substandard material without following the due procedure contemplated under the Insecticides Act, 1968 that cannot be taken into consideration. 5. On the other hand, it is the contention of learned Special Public Prosecutor appearing for ACB Cases that there is clear material to the effect that A-1 to A-3 being Public servants misused their official positions and placed orders with A-4 and A-5 and others for the supply of the material in question and as a consequence of it A-4 and A-5 supplied the substandard material and necessary samples collected and sent were analyzed chemically and later reports were sent to the effect that they supplied substandard material to the Department only and at this stage it is not proper to quash the proceedings so far as A-4 and A-5 are concerned because unless necessary trial is conducted, it cannot be said that they are innocents of the alleged offences. 6. Now the point for consideration is whether A-4 and A-5 supplied substandard material or not in order to prosecute them along with A-1 to A-3 in respect of charges under the Insecticides Act, 1968. 7. It is emphatical that absolutely there is no allegation against A-4 and A-5 that they colluded with A-1 to A-3 and also instigated A-1 to A- 3 to misuse their official positions for the supply of substandard material or even genuine material beyond requirement. 8. Further, Sections 22, 24 and 31 of the Insecticides Act, 1968 reads : “22.Procedure to be followed by Insecticide Inspectors. (1) Where an Insecticide Inspector seizes any record, register or document under clause (b) of sub- section (1) of section 21, he shall, as soon as may be, inform a Magistrate and take his orders as to the custody thereof. (2) Where an Insecticide Inspector takes any action under clause (d) of sub- section (1) of section 21-- (a) he shall use all despatch in ascertaining whether or not the insecticide or its sale, distribution or use contravenes any of the provisions of section 18 and if it is ascertained that the insecticide or its sale, distribution or use does not so contravene, forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized; (b) if he seizes the stock of the insecticide he shall, as soon as may be, inform a Magistrate and take his orders as to the custody thereof; (c) without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possessor of the insecticide, he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order and in case where the Insecticide Inspector has seized the stock of insecticide, he shall, as soon as may be, inform a Magistrate and obtain his orders as to the release thereof. (3) Where an Insecticide Inspector takes any sample of an insecticide, he shall tender the fair price thereof and may require a written acknowledgement therefor. (4) Where the price tendered under sub- section (3) is refused, or where the Insecticide Inspector seizes the stock of any insecticide under clause (d) of sub- section (1) of section 21, he shall tender a receipt therefor in the prescribed form. (5) Where an Insecticide Inspector takes a sample of an insecticide for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into three portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked: Provided that where the insecticide is made up in containers of small volume, instead of dividing a sample as aforesaid, the Insecticide Inspector may, and if the insecticide be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three of the said containers after suitably marking the same and, where necessary, sealing them. (6) The Insecticide Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it and shall retain the remainder and dispose of the same as follows:-- (i) one portion or container, he shall forthwith send to the Insecticide Analyst for test or analysis; and (ii) the second, he shall produce to the court before which proceedings, if any, are instituted in respect of the insecticide. 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 sixty 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 from 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 the 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 proceedings in respect of the sample are pending that he intends to adduce evidence in controversion 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 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. (5) The cost of a test or analysis made by the Central Insecticides Laboratory under sub- section (4) shall be paid by the complainant or the accused, as the court shall direct. 31. Cognizance and trial of offences. (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorised in this behalf by the State Government. (2) No court inferior to that of a 1[ metropolitan magistrate or a judicial magistrate of the first class] shall try any offence under this Act.” 9. There is no dispute that supply of substandard material Malathion would come within the purview of these provisions. Therefore, without following the procedure contemplated under Sections 22, 24 and 31 of the Act including giving opportunity to A-4 and A-5 to send second sample available if any after receiving the chemical examination report there will not be any basis to prosecute them. In fact, the learned Special Public Prosecutor has supplied two more chemical examination reports, which are to the effect that the material supplied to the Department by A-4 and A-5 happened to be substandard in nature. Whereas they can be taken into consideration only when the consequential action contemplated under Section 24 of the Insecticides Act, 1968 to send such second sample for analysis and report was followed, without that it only amounts to prosecuting them without sufficient material following which they are to be acquitted of all the charges which only amounts to abuse of the process of law. The department should have taken necessary measures for the proper prosecution of A-4 and A-5 taking all necessary measures narrated above. Only because of the inaction of the Department or the concerned authorities, the proceedings so far as A-4 and A-5 are concerned are liable to be quashed. Further, unless there is good and acceptable evidence of supplying substandard material to the department, A-4 and A-5 cannot be said to have colluded with A-1 to A-3 or instigated them to receive the substandard material. Supply of genuine material to the department more than the received quantity cannot be an offence as in that any element of mens- rea and intention to get monetary gain illegally are absent. With the above noted observations, the Criminal Petition is allowed and the proceedings in C.C. No.52 of 2007 against the Petitioners/A-4 and A-5, pending on the file of Principal Special Judge for S.P.E. and A.C.B. Cases at Hyderabad, are hereby quashed. __________________________ G. KRISHNA MOHAN REDDY, J Dated:21-10-2011. Dsh. THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 89 CRIMINAL PETITION No.5193 OF 2008 October, 21, 2011 DSH