Case: Indofil Industries Ltd. &amp; Others Vs. State of Punjab

in any prosecution in respect of the samples. 13. Sub-sections (3) and (4) of Section 24 are of some significance. The same read thus: "24. (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 Analysts 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, within a period of thirty days, 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." On a bare reading of sub-section (3), it is seen that the first part declares that the report signed by the Insecticide Analyst shall be evidence of the facts stated therein and it shall be conclusive, unless the "person from whom" the sample was taken exercises his right by notifying in writing within the specified time that he intends to adduce evidence in controversion of that report. Thus, the second part of this provision gives a right to the person from whom the sample was collected to raise an objection. Once the person from whom the sample was taken exercises that right in terms of sub-section (4), the conclusiveness of the report of the Insecticide Analyst (State Analyst) referred to in the first part of the same provision cannot be used against such person. These provisions are in the nature of rules of evidence. Further, if the criminal complaint is launched and the person is named as an accused, he can request the concerned Magistrate before whom the proceedings are pending to send the third sample produced before the Court to the CIL for testing or analysis. That right can be exercised only if the complaint is founded on the report of the State Insecticide Analyst. However, if the complaint is filed also on the basis of the report of the CIL, then the question of exercising the right under Section 24 (4) does not endure to the accused. For, the purport of Section 24(4) is that the report of the CIL shall be conclusive evidence of the facts stated therein. It is pertinent to bear in mind that the opening part of sub-section (4) of Section 24 opens with the words, "Unless the sample has already been tested or analysed in the CIL". Therefore, in cases where such report is already obtained or available, the criminal prosecution must proceed on that basis. In other words, only if the analysis report of the CIL is not available or filed along with complaint or placed on record in the criminal prosecution, would the accused get a right to request the concerned Magistrate to direct testing or analysis of the third sample produced before that Court by the prosecution from the CIL and not otherwise. Any other view would entail in rewriting of the provisions, which are otherwise plain and unambiguous. Thus, if the report of the CIL has been obtained before filing of the complaint or pursuant to the direction given by the concerned Magistrate and made part of record of the criminal prosecution, as in this case, the accused named in the complaint cannot ask for analysis of the sample already used at the instance of the person from whom it was taken and is named as co-accused. 14. To put it differently, the provisions of the Act predicate that the Insecticide Inspector has ample power to send the sample for testing or analysis to the CIL on his own. Rather, it is his duty to do so if such an express request is made by the person from whom the sample was taken. The argument of the appellants that the Insecticide Analyst cannot do so unless a formal complaint is filed and the concerned Magistrate so directs, is in the teeth of the dictum of this Court in the case of State of Haryana v. Unique Pvt. Ltd. (supra) and Gupta Chemicals Pvt. Ltd. (supra). This Court has expressly rejected that stand taken by the State and has held that the Insecticide Inspector must take prompt steps to send the sample to the CIL immediately after the protest is notified about the report given by the State Insecticide Analyst. The Insecticide Inspector has the option either to send the third sample on the request made by the person from whom it was collected to the CIL for testing or analysis or to launch a criminal prosecution and submit the third sample in the concerned Court well before the expiry of shelf life of the Insecticide to enable the accused named in the complaint to ask for testing or analysis thereof in the CIL. We, therefore, conclude that the High Court was right in dismissing the petition to quash the criminal proceedings pending against the appellants in respect of misbranded insecticide, for the additional reasons indicated in this judgment.15. While parting, we make it clear that we have not expressed any opinion either way on the efficacy of the CIL report in question including on the issue of admissibility thereof. All questions in that regard will have to be answered by the trial court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. Having cogitated over the rival submissions, we find force in the argument of the respondent State.11. On a bare perusal of Section 21 of the Act, it is amply clear that the Insecticide Inspector is empowered to take samples of any insecticide and send such samples for analysis to the Insecticide Analyst for testing in the prescribed manner. The manner of dispatch of samples for test or analysis is prescribed in Rule 34. It predicates as to how each sample is required to be sent by registered post or by hand in a sealed packet together with a memorandum set out in Form XII in an outer cover addressed to the Insecticide Analyst. As per(5) of Section 22, if the Insecticide Inspector decides to take a sample of an insecticide for the purpose of test or analysis, he is obliged to 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, he shall then 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. After that, the Insecticide Inspector is expected to 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 retain the remainder and deal with same in the manner prescribed in(6) of Section 22. Out of the remainder, one portion or container is required to be sent for Insecticide Analyst Test or Analysis. The second portion is required to be produced before the Court where the proceedings if any are instituted in relation to the said insecticide. As noted earlier, the analysis of the sample can be obtained from either the Insecticide Analyst appointed under Section 19 or the CIL established under Section 16 of thea bare reading of(3), it is seen that the first part declares that the report signed by the Insecticide Analyst shall be evidence of the facts stated therein and it shall be conclusive, unless the "person from whom" the sample was taken exercises his right by notifying in writing within the specified time that he intends to adduce evidence in controversion of that report. Thus, the second part of this provision gives a right to the person from whom the sample was collected to raise an objection. Once the person from whom the sample was taken exercises that right in terms of(4), the conclusiveness of the report of the Insecticide Analyst (State Analyst) referred to in the first part of the same provision cannot be used against such person. These provisions are in the nature of rules of evidence. Further, if the criminal complaint is launched and the person is named as an accused, he can request the concerned Magistrate before whom the proceedings are pending to send the third sample produced before the Court to the CIL for testing or analysis. That right can be exercised only if the complaint is founded on the report of the State Insecticide Analyst. However, if the complaint is filed also on the basis of the report of the CIL, then the question of exercising the right under Section 24 (4) does not endure to the accused. For, the purport of Section 24(4) is that the report of the CIL shall be conclusive evidence of the facts stated therein. It is pertinent to bear in mind that the opening part ofTo put it differently, the provisions of the Act predicate that the Insecticide Inspector has ample power to send the sample for testing or analysis to the CIL on his own. Rather, it is his duty to do so if such an express request is made by the person from whom the sample was taken. The argument of the appellants that the Insecticide Analyst cannot do so unless a formal complaint is filed and the concerned Magistrate so directs, is in the teeth of the dictum of this Court in the case of State of Haryana v. Unique Pvt. Ltd. (supra) and Gupta Chemicals Pvt. Ltd. (supra). This Court has expressly rejected that stand taken by the State and has held that the Insecticide Inspector must take prompt steps to send the sample to the CIL immediately after the protest is notified about the report given by the State Insecticide Analyst. The Insecticide Inspector has the option either to send the third sample on the request made by the person from whom it was collected to the CIL for testing or analysis or to launch a criminal prosecution and submit the third sample in the concerned Court well before the expiry of shelf life of the Insecticide to enable the accused named in the complaint to ask for testing or analysis thereof in the CIL. We, therefore, conclude that the High Court was right in dismissing the petition to quash the criminal proceedings pending against the appellants in respect of misbranded insecticide, for the additional reasons indicated in this judgment.15. While parting, we make it clear that we have not expressed any opinion either way on the efficacy of the CIL report in question including on the issue of admissibility thereof. All questions in that regard will have to be answered by the trial court.