Whether reporters of the Local Papers are allowed to see the judgment? Yes. IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No.107 of 2008. Judgment reserved on: 30.12.2008 Dated of Decision: January 7th,2009. M/s Indofil Chemical Company ….. Petitioner. Versus State of Himachal Pradesh …. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the Petitioner : Mr. Som Raj Verma Advocate with Ms. Madhu Sharma, Advocate. For the Respondent : Mr. J.S. Guleria, Law Officer. SURINDER SINGH, J. The instant petition has been preferred under Section 482 Cr.P.C. by the petitioner company for quashing and setting aside the complaint filed by the respondent and consequent proceedings, pending against them under Section 29 of the Insecticide Act, 1972, in short the “Act,” in the court of chief Judicial Magistrate, Mandi. Admittedly the petitioner ‘M/s Indofil Chemical Company’ is a manufacturer of insecticides and pesticides, including the one known as Mencozeb. The company sells its product throughout the country including the Himachal Pradesh through its distributors and retailers. ‘M/s K.D. Seed House’, Shop No.10, Zero Chowk Sunder Nagar, district Mandi (H.P.) is the authorised dealer/ distributor of the petitioner company. - 2 - Succinctly stated, the facts giving rise to the present petition can be stated thus. On 9.9.2005, Insecticide Inspector-cum- Horticulture Development Officer, Mandi intercepted the shop M/s K.D. Sood House and purchased three packets of 100 grams each of COMPANION (MECOZEB 63 % plus Carbendenzim 12 % W.P.) along with the other pesticides from accused Ashwani Kumar Saini, vide Bill No.683 dated 9.9.2005 for Rs.784/- for the purpose of its analysis, in the presence of Naresh Kumar and Anil Kumar, witnesses. The purchased article was sealed as per the procedure prescribed under Section 22 of the Act. Out of the said three samples, first sample was kept in the office of the Insecticide Inspector and second was handed over to the distributor/ dealer on Forum No.XX under Rule 33 framed under the said Act and the third sample was sent to the Director, Regional Pesticides Laboratory, for analysis vide form No.XX1 Annexure A-V attached with the complaint. The retailer (accused No.1) was asked to put his seal and signature on the form but he refused to do so. On analysis, the sample was found misbranded as it did not conform to the relevant specification to the active ingredient test requirement. Thus, the aforesaid retailer and the petitioner company, both were asked by a written order to stop the sale of the aforesaid insecticide to avoid further loss to the farming community which was resisted by them. Therefore, the Insecticide Inspector made a reference to the Licensing Authority-cum- Deputy Director Horticulture on 9.2.2006 to - 3 - seek approval/ sanction from the competent authority under section 31 of the Act, which was accorded on 16.2.2006 and conveyed to the Insecticide Inspector, as such the complaint against the retailer and the petitioner company and also impleading the Managing Director of the Company, was filed in the court under Section 17(a) read with Section 29 (1) (a)(f)(i) of the Act. The list of witnesses and documents were attached with the complaint and in the column No.13 of the list of documents attached a reference was made by the complainant that the dummy sample kept with the complainant would be produced, if required at the time of evidence. The learned trial Court found sufficient grounds to proceed against all the accused persons including the petitioner, accordingly they were summoned as accused vide order dated 18.11.2006. The petitioner filed an application through Shri Amit Kumar to authorising him under section 305 of then Cr.P.C., to represent the company for the purpose of enquiry or trial, which was allowed. He moved an application seeking discharge of the company in the case which was dismissed by the learned trial Court as not maintainable and the matter was adjourned for putting the substance of accusation. In the meantime, the petitioner company filed the present petition to quash the proceedings against them on following grounds: (i) The second sample was not deposited by the complainant in the court at the time of filing the complaint which is a mandatory requirement under the act, thus the entire proceedings stands vitiated. (ii) The product in question was manufactured on 14.12.2004 and the expiry date was 13.12.2006, the - 4 - shelf life of the product was only two years. The complaint was filed in the court on 18.11.2206. The petitioner company was served for 1.12.2006, i.e. after the expiry date of the sample. Thus the petitioner company lost the statutory right to get the sample re- tested from the Central Insecticides Laboratory. (iii) There was no valid sanction to prosecute the petitioner. Shri Som Raj Verma, learned counsel for the petitioner to support the above points, has drawn my attention to the relevant provisions of the Act and placed reliance on the various judicial precedents, which I shall discuss hereinafter. Contra, Shri J.S. Guleria, learned Law Officer argued that the retailer could have exercised his option to get the sample analysed from the Central Laboratory, which right was not availed by him and he allowed the time to expire. It is further contended that the notice was also sent to the Company well in time. They also did not take any step in this behalf. Further the sample was kept by the complainant and this fact was mentioned in the complaint itself. Thus any of the accused could have applied for its production in the court and apply for its re-testing. He also referred to the sanction order and ventilated that it did not suffer from any illegality, therefore, in the grounds put forth are not sufficient to quash the proceedings at this stage. I have given my thoughtful consideration to the rival contentions of the parties and have perused the records. To deal with first and second contentions, Section 22 of the Act, which prescribes the procedure, is required to be noticed. The manner in which the Insecticide Inspector is empowered to seize the - 5 - record etc. and also to send sample to the Analyst is clearly provided therein. Sub section (5) and (6) provide the manner in which the samples of an insecticide for the purpose of test and analysis shall be taken: the aforesaid provision reads as under: “(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 suitable 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 damages 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 - 6 - (ii) the second, he shall produce to the court before which proceedings, if any, are instituted in respect of the insecticide.” So far as sub section (5) of Section 22 supra is concerned, the sampling part is not disputed. But here the petitioner has assailed clause (ii) of sub Section (6) which provides, the complainant is under obligation to produce the second sample to the court before which proceedings, if any, are instituted in respect of the insecticide. Now sub sections (3) and (4) of Section 24 is required to be noticed. It reads as follows:- “ (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 as 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 was pending that he intends to adduce evidence in contravention 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 - 7 - 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.” In State of Punjab v. National Organics Chemical Industries Ltd. 1998 (4) RCR (Criminal) 578, the provisions of section 24, sub section (3) and (4) were interpreted by the Supreme Court, wherein it was observed: “ After the receipt of the report, the accused would be notified of the result of the report. Thereafter, the complaint is required to be lodged in the court. At that stage, two options are open to the accused. The accused is entitled to have one copy of the sample entrusted to him to have notified to the court for proving to be contrary to the conclusive evidence of the report of the analyst; 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. That such certificate by the director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide analyst under sub-section (3) of section 24. 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 Insecticides Inspector, would be requested to be sent by the court to the CIL and the report thus given by the director of CIL shall be conclusive evidence as to the equality, content and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by the Court.” In the above case, the Supreme Court further observed that the complainant who was the appellant did not adopt the course as was required by the Act. The complaint was not lodged with utmost - 8 - despatch and the accused could not opt the statutory defence. Since the third sample was not given to the accused thus it was held that the accused-respondent was deprived of the statutory opportunity to have the sample tested by the CIL. Admittedly in the present case the second sample was not deposited in the trial court alongwith the complaint, which, in my opinion is the infraction of the mandatory provision of Section 22 (6) (ii) of the Act ibid by the complainant. The petitioner company is the manufacturers of the insecticides aforesaid. Although it did not clearly gave its option under sub Section (3) of Section 24 of the Act to the Inspector to get it analysed but this option was exercised by the accused No.1 for himself and also on behalf of the Company, but the Inspector did not take further action. Whereas the petitioner and the main accused both under sub section (4) have also the statutory right to make a request to the court to send the second sample for the reanalysis. Since it was not deposited by the complainant in the court, if it was kept the complainant with himself, in that event, in my opinion, this was a violation of the mandatory provision, thus the petitioner company and the main accused both have deprived of their valuable and statutory rights. Further in the instant case, the sample of the aforesaid insecticides was taken by the complainant from accused No.1 on 9.9.2005 and its date of expiry was admittedly, 13.12.2006. The complaint was filed in the learned trial Court on 18.11.2006. The summons against the petitioner company were issued on 20.11.2006 for their presence on 1.12.06 but they were not served and the company was required to be served through the registered A.D which was issued on 26.12.2006 by that time the date of expiry - 9 - of the sample was over and the shelf life of the insecticide had already expired. In these circumstances, if the petitioner company intended to exercise its statutory right for getting the second sample analysed through the Central Insecticides Laboratory (CIL), the same is defeated because of the late filing of the complaint and by not serving them before its expiry date. Therefore, the petitioner company was deprived of the first as well second statutory option as aforesaid, to support my view I place my reliance on the judgment passed by the Apex Court in State of Haryana v. Unique Farmaid with the connected matters [1999 (4) RCR (Criminal) 540]. Thus the complaint deserves to be quashed. In so far as the third contention raised by the petitioner company is concerned, Section 31 of the Act needs to be referred. It provides that no prosecution for an offence under the 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. This section creates a bar on the jurisdiction of the Court to entertain prosecution except with the written consent of the state Government or authorised person. The State Government authorised the Director of Agriculture Himachal Pradesh as the competent authority under the section aforesaid for giving the written consent for instituting prosecution vide notification No. Agr.F (10)-7-2004-L dated 4.9.2006. In this case vide letter dated 9.2.2006, the complainant had informed the Deputy Director Horticulture vide his letter dated 9.2.2006 Annexure-A-X with a copy endorsed to the Director Agriculture Himachal Pradesh regarding the report of misbranding of - 10 - the item in question and sent certain copies of the documents with the request to grant the prosecution sanction. Vide Annexure A-XII, dated 16.10.2006, the Director of Agriculture accorded the sanction. The sanction letter is reproduced verbatim here-under:- “No.Agr.H(VI)F-69/2006(PS-I)- Director of Agriculture, Himachal Pradesh. From Director of Agriculture, Himachal Pradesh. To The Insecticide Inspector -cum- Horticulture Development Officer, O/o Deputy Director of Horticulture, Mandi, District Mandi, H.P. Dated:Shimla-5, the 16 OCT 2006. Subject:-Sanction of prosecution under section 31 of the Insecticide Act 1968 Memo: Reference your letter No.DDH (PP)(M)6-11/05-6581 dated the 9th February, 2006, addressed to the Licensing Officer ( Deputy Director of Agriculture, Mandi) and copy thereof endorsed to this office and further proposal received for prosecution sanction from Licensing Officer. In exercise of the power vested in me vide notification No.Agr.F(10)- 7/2001-L, dated 04.09.2006 from the secretary (Agriculture) to the Govt. of Himachal Pradesh, Shimla, under Section 31 of the Insecticide Act, 1968, I - 11 - hereby accord sanction to prosecute the Manufacturers/ Firm/ Dealers for violating the Insecticides Act 1968, as suggested by you. Therefore, you are directed to take further action in the matter under section 31 of the Insecticide Act 1968, accordingly. Sd/- Director of Agriculture Himachal Pradesh.” The copy of this letter was endorsed to the Secretary (Agriculture) to the govt. of Himachal Pradesh, Director of Horticulture, Deputy Director of Agriculture-cum- Licensing Officer, Mandi, with reference to his letter dated 14.2.2006 and the Deputy Director of Horticulture, Mandi, for information. The sanction letter does not spell out the application of mind. In this sanction letter/order, it is not mentioned as to who has taken the sample, from whom this sample was taken, what was the report of the Analyst and how the sample was found misbranded. Further, this sanction was given pursuant to the letter received from the Deputy Director of Agriculture-cum-Licensing Officer, as indicated above, which is not on record nor it is known what was the material/ record produced before the sanctioning authority for its perusal before according the sanction. From the plain reading of the letter aforesaid, it is not made out what record was produced and perused by the Director, while granting the sanction against the accused persons including the petitioner. It was observed by the Supreme Court in Mohd. Iqbal v. State of Andhra Pradesh [AIR 1979 SC 677] : - 12 - “what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution and must therefore be strictly complied with before any prosecution be launched against the public servant concerned.” The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution, the sanctioning authority has a discretion to grant or withhold the sanction. A sanction which simply names the person to be prosecuted and specifies the provision of the order which is alleged to have been contraband is not sufficient compliance of the mandatory provision. By now it is well established that the sanctioning authority has to apply its independent mind to the facts and circumstances of the case rather it should show the application of mind independently without being influenced by the external authority or force, but in the instant case, what to talk of mentioning of facts and perusal of the record, it did not spell out the names of the accused persons against whom the sanction was given and the tragedy is that the sanctioning authority has acted upon the suggestion of the - 13 - Insecticide Inspector as indicated in the endorsement of the letter quoted above, then where is the application of mind. Therefore, after examining the entire matter in the light of the principles discussed above, I am of the opinion that the prosecution of the petitioner as well as other accused persons in the instant case is bad. Consequently, the prosecution of the petitioner and the other accused person in complaint No.32-I of 2007/ 28/II of 2007, titled State through Insecticide Inspector-cum- Horticulture Development Officer v. Ashwani Kumar Saini and ors, is hereby quashed. The complaint against them stands dismissed as it being the abuse of the process of law. Send down the records of the trial court. (Surinder Singh) January 7th,2009. Judge. (Pds)