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

1. The appellants invoked the jurisdiction of the High Court of Punjab and Haryana at Chandigarh under Section 482 of the Criminal Procedure Code, 1973 beingof 2016, for quashing of the prosecution instituted against them by the State for an offence punishable under Sections 3(k) (i), 17, 18, 29, 30 and 33 of The Insecticides Act, 1968 (for short "the Act"). The principal ground urged before the High Court was about the gross violation of mandatory provisions of the Act particularly Section 22, resulting in immense prejudice to the appellants. For, the appellants were neither served with the report of the Analyst nor afforded any opportunity to exercise their right of analysis of the spare sample. Whereas, the spare sample was sent for analysis to the Central Insecticides Laboratory without institution of any proceedings. Failure to produce the second sample before the Court where the criminal case was launched against the appellants was contrary to Section 22(6) (ii) of the Act. It was also contended that the appellants, who are the manufacturers of the product, were arraigned as an accused in the criminal case contrary to the spirit of Section 33 (1) of the Act. These grounds of challenge, however, did not find favour with the High Court. Hence, this appeal.2. Briefly stated, on 21st December, 2012, the Insecticide Inspector, Bhikhi, empowered under Rule 27(5) of The Insecticide Rules, 1971 (for short "the Rules"), inspected the premises of a firm M/s Jai Durga Pesticides Store, a licensed dealer and proprietary concern of one Vinod Kumar (for short "the dealer"). The dealer had displayed the product insecticide15% W.P. under the brand name Gromate bearing batch No.SGR018 manufactured by the appellants for sale. It is an admitted position that the dealer had purchased the said insecticide through invoice No.361203060 dated 24.11.2012. The Insecticide Inspector took random samples from one out of 500 units of such insecticides packets, bearing manufacturing date 30.11.2011 and expiry date 29.11.2013. The Insecticide Inspector completed the necessary formalities for taking the samples and prepared documents of three parcels which were duly sealed and signed by him, the dealer and the witnesses. The three different cloth bags were duly sealed. One of the sealed samples was handed over to the dealer (Vinod Kumar) and the remaining two bags containing the samples were deposited in the office of Chief Agriculture Officer, Mansa. Out of the two samples carried by the Insecticide Inspector, one sample was then forwarded to the Insecticide Testing Laboratory, Ludhiana (for short "the State Laboratory"). After the necessary test was conducted, a report dated 11.01.2013 was sent by the State Laboratory to the office of the Chief Agriculture Officer, Mansa opining that the tested sample was misbranded. The said analyst report along with a show cause notice was then served upon the dealer as well as the manufacturer (appellants) on 22.01.2013 and 11.02.2013 respectively.3. The dealer (Vinod Kumar) then moved an application before the Chief Judicial Magistrate, Mansa, praying for analysis of the spare sample. The Chief Judicial Magistrate allowed the said application filed by the dealer Vinod Kumar. Pursuant to that order, the spare sample was forwarded in one sealed packet to the Director, Directorate of Plant Protection Quarantine and Storage, Central Insecticide Laboratory, Faridabad, (for short "the CIL") vide communication dated 06.04.2013. The CIL analysed the spare sample received by it and forwarded its report on 17.04.2013, opining that the sample does not conform to the relevant specification in the active ingredients content test requirement and is misbranded. A formal complaint was then filed on 18.05.2015 in the Court of Chief Judicial Magistrate, Mansa, being Complaint No.17/2015.4. As set out hereinabove, the appellants filed a petition under Section 482 of Cr.P.C. for quashing of the said complaint on the grounds noted earlier. The High Court by the impugned judgment dated 8th August, 2016, dismissed the said petition. The relevant extract of the said judgment which falls for our consideration readsforemost argument of the petitioners counsel that they had been denied their legitimate right of reanalysing for which refuge has been taken from the ratios M/s B.R. Agrotech and another v. State of Haryanaof 2012; State of Punjab v. National Organic Chemical Industries Ltd. 1998(4) R.C.R.(Criminal) 578 : (1996) 11 SCC 613 ; Indofil Chemicals Co. Ltd and others v. State of Punjabof 2014 and M/s Indofil Chemical Co. v. State of Haryanaof 2011 though, appears to be highly impressive, however, a close look at the provisions bears out that by virtue of Section 24(3) of the Act period of 28 days has been prescribed from the receipt of copy of the report to enable the party to challenge it and unless it is done so a report of the insecticides Analyst shall become conclusive proof. Though, with much vehemence reliance has sought to be placed on M/s B.R. Agrotech case ibid, however, the licensed dealer of the petitioners side had moved an application for reanalyzing on 30.01.2013, as a consequence of which, the second sample was dispatched to the Central Insecticide Laboratory, whose report was received on 17.04.2013. The manufacturer on the basis of show cause notice dated 11.02.2013 was fully aware of the outcome of the analysis but did not choose to avail of this remedy throughout and has chosen to wait till the filing of the complaint, though, aware of the fate of the reanalysis as well and the fact that the expiry of the article was to take place w.e.f. 29.11.2013, now at this belated stage the manufacturer cannot be allowed to rake up these pleas when by his own volition he has sought to keep mum over it and with the efflux of time has forfeited his own right and to his own disadvantage for which he cannot derive any such benefit. More so, when the dealer had already availed of this opportunity apparently reflects what is at the back of the mind of theThe ratios laid down in M/s B.R. Agrotech and another v. State of Haryanaof 2012; State of Punjab v. National Organic Chemical Industries Ltd. 1998(4) R.C.R.(Criminal) 578 : (1996) 11 SCC 613 ; Indofil Chemicals Co. Ltd. and others v. State of Punjabof 2014 are factually at much variance from the case in hand and so is the fate of M/s Indofil Chemical Co. v. State of Haryanaof 2011 so relied upon by the petitioners.The other line of contention based on the ratio M/s Indofil Chemical Co. ibid that sample ought to be sent within 24 hours and has to be sent by the District Agriculture Officer with whom the present samples have been deposited without loss of time and the learned counsel for the petitioners could not pinpoint how there has been violation of any provisions of the Act and the Rules and that a polythene bag is not a suitable container. The plea based on ratios P.D. Garg and others v. State of Punjabof 2014 and State of NCT of Delhi v. Rajiv Khurana 2010(3) R.C.R.(Criminal) 912 : (2010) 11 SCC 469  that the petitioners cannot be held responsible and have no knowledge nor consented or connived in such a process of manufacturing and whether any role is attributable to them or not is a matter of evidence which cannot be gone into at this juncture and, therefore, this argument certainly is brushed aside. This Court taking support from Narinder Kumar Gupta v. State of Haryana 2006(1) RCR Criminal 862 where similar question of law was taken note of, since the sample in the present case was drawn from the dealer who has duly exercised his right of reanalysis, thus, even otherwise the manufacturer at this juncture cannot have any grouse over denial of such a right when he was fully aware of the outcome of the test so conducted on his product and, thus, manufacturer in the light of Narinder Kumar Gupta case ibid having failed to exercise his option when show cause notice has been sent to him is certainly conclusive evidence against him to this effect. From another angle the plea that the complaint has been filed after the shelf life of the product has expired needs to be relooked from the angle that in the present case the report of the insecticides Analyst was sent to the dealer as well as manufacturer on 22.1.2013 and 11.2.2013 respectively and thus were having opportunity to exercise their option which the dealer has exercised and on his written request on 30.1.2013 spare sample was sent for this regarding which report was received on 17.4.2013 and, therefore, was sufficient opportunity to rebut the evidence to this effect and since the petitioner did not exercise such option as has been laid down in Narinder Kumar Gupta case ibid in that situation filing of the complaint after the expiry of the shelf life of the sample is of no consequence as the right provided under(4) of Section 24 of the Act is not available to the petitioners and qua thethe same has become conclusive evidence in terms of Section 24(3) of the Act."

Reasoning:
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.