Case: Northern Mineral Ltd Vs. Union of India and Anr

Brief facts giving rise to the present appeal are that the appellant company is a Private Limited Company registered under the Companies Act, 1956 and inter alia engaged in the manufacturing of insecticides including Monocrotophos 36 SL. On 10th September, 1993, the Insecticide Inspector drew sample of Monocrotophos 36 SL from the shop of the appellants dealer, M/s. Jindal Traders respondent no. 2 herein. The aforesaid insecticide, sample of which was collected by the Insecticide Inspector, was manufactured by the appellant company in September, 1992. The sample so collected was sent for analysis to the Regional Pesticides Testing Laboratory, Chandigarh who submitted its report dated 13th October, 1993 stating that the sample was misbranded as it did not conform to the relevant ISI specifications. The Show Cause Notice dated 1st November, 1993 was issued to the appellant and it was informed about the report of the Regional Pesticides Laboratory which according to the appellant was received on 3rd November, 1993. The appellant replied to the notice by its letter dated 17th November, 1993 inter alia expressing its "intention of adducing evidence in controversion of report". It also alleged that the report of the Regional Pesticides Testing Laboratory is of no consequence. After the Joint Director, Agriculture, gave its consent for prosecution of the appellant company and respondent No. 2 on 23rd February, 1994 the Insecticide Inspector filed the complaint in the Court of Chief Judicial Magistrate, Patiala on 16th March, 1994 alleging commission of offence under Section 29 of the Insecticides Act. Shelf-life of the insecticide expired in February, 1994. The appellant company and Respondent No.2 herein i.e. M/s. Jindal Traders were arrayed as accused in the said complaint. Appellant filed application for discharge under Section 245 of the Criminal Procedure Code. But the learned Magistrate by Order dated 13th November, 1999 dismissed the same, inter alia observing as followsthe accused did not make prayer for getting the second sample reanalyzed, the authorities cited at bar by the learned counsel for the accused do not render any assistance to the accused. Rather, authority cited by learned Additional PP for the State is fully applicable Moreso, the case is yet at its threshold and therefore, only prima facie commission of offence has to be taken into consideration at this stage. The plea of the learned counsel for the accused that sample was drawn from the sealed container will be evaluated after adducing the evidence which would be adduced during the course of trial. Consequently, both the applications for discharge of the accused stand dismissed being devoid of any merit.Aggrieved by the aforesaid order, the appellant preferred Criminal Revision No. 170 of 2000 before the High Court of Punjab and Haryana. Revision application preferred by the appellant was heard alongwith Criminal Revision Petition No.106 of 2000 preferred by another accused in a different case. The High Court by Order dated 5th November, 2001 dismissed the Revision Application preferred by the appellant. While doing so, the High Court observed asupshot of the above discussion is that the weight of the judicial opinion of the Honble Supreme Court of India and of this Court favours the petitioners case that re-analysis is a valuable right which gets defeated if the complaint is filed after the expiry date and consequently the proceedings must be dropped. The question which is now required to be considered is whether the petitioners exercised their right to seek re-analysis or not. The replies to the Show-Cause Notices indicate that Apex Mineral did seek re-analysis whereas Northern Minerals did not. Re-analysis by Central Insecticides Laboratory was not done in neither case. Where a party does not ask for a second analysis it should not be permitted to complain that its right of re- analysis has been defeated. This grievance can only be valid if a party seeks re- analysis before expiry but was denied this right. Consequently, Northern Minerals case must fail. Criminal Revision No. 170 of 2000 is

Reasoning:
6. We find substance in the submission of Mr. Nehra and the decision relied on clearly supports his contention. Statute mandates disclosure of expiry date of the insecticide. The form prescribed for submission of the report by Insecticide Analyst contains columns for the date of the manufacture and expiry. Insecticides are substances specified in the schedule of the Insecticides Act and from perusal thereof it is evident that many of substances with passage of time may lose its identity if exposed or comes into contact with other substance. Therefore, there is no escape from the conclusion that shelflife of an insecticide shall have its bearing when it is tested or analysed in the laboratory.The decisions of this Court in the cases of National Organic Chemical Industries Ltd. (Supra), Unique Farmaid (P) Ltd. & Ors. (Supra) and M/s. Gupta Chemicals Pvt. Ltd. (Supra), in our opinion do support Mr. Nehras contention. True it is that in first two cases, the accused, besides sending intimation that they intend to adduce evidence in controversion of the report accused persons have specifically demanded for sending the sample for anlaysis by the Central Insecticides Laboratory. However, the ratio of the decision does not rest on this fact. While laying down the law, this Court only took into consideration that accused had intimated its intention to adduce evidence in controversion of the report and that conferred him the right to get sample tested by Central Insecticides Laboratory. The decision of this Court in the case of M/s Gupta Chemicals (supra) is very close to the facts of the present case. In the said case "on receipt of the information about the State Analyst report the appellants sent intimation to the Inspector expressing their intention to lead evidence against the report" and this intimation was read to mean "their intention to have the sample tested in the Central Insecticides Laboratory". From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.13. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before Court where proceeding in respect of the samples is pending. Further the Court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to Central Insecticides Laboratory. It may be mentioned herein that shelf life of the insecticides had expired even prior to the filing of the complaint. The position therefore which emerges is that by sheer inaction the shelf life of the sample of insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal prosecution against the appellant to continue shall be futile and abuse of the process of Court.14. We are distressed to note the casual manner in which the whole exercise has been done. Insecticide Inspector had collected the sample on 10th September, 1993 and sent it to the Insecticide Analyst for analysis and report. Insecticide Analyst submitted its report dated 13th October, 1993. Notice of the report was sent to the appellant on Ist November, 1993, in reply whereof by letter dated 17th November, 1993 it intimated its intention to adduce evidence in controversion of the report. Theof the pesticide had not expired by that time but expired in February 1994. However, permission to file complaint was given on 23rd February, 1994 and the complaint was actually filed on 16th March, 1994. Had the authority competent to grant consent, given consent and complaint lodged immediately after the receipt of intimation of the accused, sample could have very well sent for analysis and report, before the expiry ofIt is interesting to note that Section 24(3) and (4) of the Act obliges the Insecticide Analyst and Central Insecticides Laboratory to make the test and analysis and report within thirty days. When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory. All who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to theso that innocent persons are not prosecuted and real culprits not left out.