Bharat Insecticides Ltd. through it's Zonal Business Manager, Ghaziabad (A1) and it's Assistant Manager, Manoj Kumar(A2) have invoked inherent power of this court, U/S 482 Cr.P.C., through present application, praying for quashing of their prosecution in Criminal Case No.1206 of 2005, State versus Satish Kumar Tyagi and others, U/S 29 (1) Insecticides Act, 1968,herein after referred to as the Act, pending before Chief Judicial Magistrate, Bijnor. Interim prayer is for stay of trial court's proceedings pendete lite this 482 Application.
For clearing doubts regarding service of summons on the accused and dates of some of the involved factual issues trial court record was also requisitioned and has been perused. Before entering into the merits, background facts reveal that complainant, Anand Singh Chauhan, was working as Insecticide Inspector, District Bijnor since 8.6.2004. One Satish Kumar Tyagi, proprietor of M/s Fasal Suraksha Kendra, Bijnor (Crop Protection Centre, Bijnor) was carrying on business of selling Monocrotophose, a chemical insecticides manufactured by A1 of whom A2 is the Assistant Manager. Wielding power under the Act, on 13.12.2004, complainant, after giving notice in the prescribed Form-20, as is required u/s 22(5) of the Act, and after paying price for the same and issuing purchase receipt, took sample of Monocrotophose 36%, a pest control chemical, of batch no. 406281250, manufactured on 26.6.2004, by A1, having shelf life till 27.12.2005. Sample was divided into three separate phials and after wrapping it seals were affixed on it's cover mentioning thereon name of Insecticides, name of chemical and date. Two of the samples were retained by the complainant. One sample phial was dispatched to Pesticide Quality Control Laboratory, Varanasi for chemical analysis on 13.12.2004 vide office memorandum No.2863.Pesticide analyst, Varanasi, vide its memorandum/Report No.4495 dated 12.1.2005, declared the sample to be misbranded as he found that AI percentage in the sample was only 27.6%. After receiving analyst report, vide office memorandum No. 2707 information about the same was furnished to A1 and the seller M/s Fasal Suraksha Kendra, Bijnor on 3.3.05. A notice was also given banning future sale of the said insecticide.
A notice, Annexure No.1 dated dated 3.3.2005, was also served on the applicants informing them about misbranding of sample and calling them to furnish information regarding stored stock of aforesaid insecticide by A1 and calling for an explaination as to why aforesaid stock be not ordered to be destroyed and it's sale banned U/S 21 (1) of the Act and Rule 30 of Rules framed thereunder. Besides above, additional information regarding details of supply of said insecticides to various whole sellers and retailers was also sought.
After receipt of said notice A1 exercising it's legal right U/S 24 of the Act, challenged analyst report and applied for retesting from Central Insecticides Laboratory, Faridabad on 29.3.2005, vide annexure no.2. A1, also expressly intimated that it is ready to bear expenses to be incurred in retesting. How ever nothing happened on that request by A1.
Since manufacture and business in misbranded insecticide is an offence U/S 29 of the Act, complainant applied for grant of sanction to launch a prosecution against the accused before the District Magistrate on 14.3.2005, and after the same was accorded insecticide inspector lodged a complaint on 17.3.2005 in the court of Chief Judicial Magistrate, Bijnor, against the applicants and satish Kumar Tyagi, registered as Complaint Case No.1206 of 2005, State Vs. Satish Kumar Tyagi and others in which case accused were summoned by CJM, Bijnor the same day. One legal lacuna committed by C.J.M. required to be pointed out at this stage is that although cognizance should have been taken under Section 190 (1) (a) Cr.P.C. by the Magistrate but his order sheet records that cognizance has been taken on the charge sheet which is, per se, factually incorrect. Original record of trial court surfaces this glaring mistake as the follow up procedure for the two types of cognizance are entirely different. Cognizance on the basis of charge sheet is taken U/S 190(1) (b) Cr.P.C. whereas in complaint case it is taken U/S 190(1) (a). This mistake should not have occurred in the trial procedure, but it should not vex mind of this court any further because of forgoing discussion.
Since company applicant A-1 was summoned, it authorized A-2, its Assistant Area Business Manager to represent it in the aforesaid case vide Board of Directors Resolution dated 29.8.2009 and hence both A-1 and A-2 have approached this Court for quashing of aforesaid complaint case.
In the background of the aforesaid facts, I have heard Sri A.B. Saran, learned Senior Counsel assisted by Sri Kartikey Saran, advocate for the applicants and learned AGA in opposition. Sri J.S. Rathore, insecticide inspector/Plant Protection Officer, Bijnor and Sri Amar Pal, insecticide inspector have also rendered their assistance.
In support of applicants prayer for quashing learned Senior Counsel harangued two submissions, firstly that Company, in consonance with section 24 (3) of the Act, applied to the insecticide inspector for retesting of sample but he did not forward it's request to the court and, therefore, most valuable right of the accused have been violated and consequently further prosecution of the applicants is unsactified and therefore, continuance of the same will be a futile exercise, since final determination of the trial is known. It was therefore argued that applicant's prosecution be quashed.
Second submission of learned counsel is that, although summons were issued against the applicants, but on the original record, there is no proof of service of summons and in absence of thereof, applicants could not gain any knowledge, therefore, entire procedure adopted by CJM is bad in law as entire exercise by CJM is without any application of mind. Primarily on above submissions, it is argued that prosecution of the applicants be quashed. To lend support to his contentions Ld. Sr.Counsel relied upon Apex Court decisions in Northern Mineral Ltd. Vs. Union of India and another 2010 (7) SCC 726, Gupta Chemicals Pvt. Ltd. and others Vs. State of Rajasthan and another 2010 (7) SCC 735, State of Haryana Vs. Unique Farmaid (P) Ltd. and others 1999 (8) SCC 190. He also cited two other decisions of Swasthik Pesticides and Chemicals though Vijay Vs. State of Gujarat:2005 (3) GLR 2027 and Mohinder Singh Chauhan Vs. State of Harayana through Insecticides Inspector: 2004 Cr.LJ 2656. On the strength of the aforesaid decisions and referring to various paragraphs, learned counsel for the applicants submitted that case of the applicants is squarely covered by the aforesaid decisions where under entire prosecution of the accused have been quashed and, therefore, the same law be applied in the case of the present applicants and their prosecution be also quashed.
Learned AGA on the other hand submitted that although Section 24 (3) of the Act confers a right on the accused to apply for retesting but Section24 (4) requires further action to be observed by the accused to claim benefit of inaction by the prosecution. It is submitted that mere applying for retesting is not enough and lackadaisical attitude of insecticide inspector and his remissness be not taken to be a ground to quash prosecution of the applicants. Learned AGA further submitted that promptitude with which insecticide inspector was required to act is lacking but that should not diminish report sent by analyst indicating commission of offence. He further contended that authenticity and conclusiveness of Pesticide analyst report is dependent upon challenge being thrown to it by the accused by exercising his power vested in section 24 (3) and (4) and, therefore, both the aforesaid sub-sections should be read together to form final opinion. Learned AGA, therefore, suggested that since applicants never approached the trial court, therefore, they cannot avail benefit of Section 24 (3) of the Act. Learned AGA distinguishing decisions relied upon by applicants' counsel submitted that decisions should be read as to what it actually says and only it's ratio decidendi should be acted upon and since those decisions are distinguishable they are of no help to the applicants and once accused had participated in trial proceedings they should be deemed to have waived their rights.
I have considered arguments for both the sides and have perused original record of the trial court as well as of this Application.
Controversy in the present proceeding lies in a very narrow compass. Entire argument by the applicants' counsel revolves around breach of right of the accused under Section 24 (3) of Insecticides Act. Learned AGA has controverted the arguments by emphasizing section 24(4) of the Act.
According to applicant's submissions right vested in the accused under section 24 (3) was exercised on 29.3.2005 in response to the notice dated 3.3.2005 Annexure No.1. Applicant's applied for retesting on 29.3.2004 vide Annexure No.2 but their request was never placed before the court nor sample was sent for retesting, therefore, the applicants' counsel submitted that infallible valuable rights of the accused has been intentionally defeated by the insecticides inspector and, therefore, prosecution be quashed. For a proper understanding, section 24 of the Act in full, is reproduced below.
"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 [thirty] 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, 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.
(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."
Perusal of the aforesaid section ordains that if an inspector draws a sample and sent it for retesting to insecticide analyst then report of the insecticide analyst shall be conclusive proof of the facts contained therein unless the same is challenged by the person from whom sample was drawn within twenty eight days of the receipt of the copy of the insecticide analyst report by making an application in writing indicating such an intention therefor. This accused can do by making an application in writing either to the insecticide inspector or to the court. Besides expressing his intention to get the sample retested he is not required to do anything further. In the present case, it has not been disputed that so far as this right is concerned, the applicants did exercise it on 29.3.2005 vide Annexure No.2. According to the applicants' contention, this was sufficient for the applicants to observe and nothing more is expected from them to do. However, learned AGA contended that no application was made to the court by the accused to send sample for retesting to the Central Insecticide Laboratory in accordance with section 24(4)and,therefore, the accused cannot avail any benefit of the same. He submitted that it was for the accused to lead evidence in contraversion of insecticide analyst report and, since retesting right is vested in the accused, it is he who has to take adequate measures in that respect. Learned AGA submitted that responsibility to bring on record the material and evidences favourable to the accused cannot be saddled on the shoulders of the prosecution and, therefore, section24 (4) should also be observed by the applicants and since that having not been done, the applicants cannot gain any benefit under section 24 of the Act.
The argument so advanced by learned AGA is attractive but in real analysis seems to be devoid of merits and conversely, contention of learned Senior Counsel for the applicants carry much substance with great force. Under section 24 (3), if the accused in writing shows his inclination to get the sample retested by sending it to Central Insecticide Laboratory, then the court has no option but to send it for retesting. Once the accused express his intention in writing to the insecticide inspector, it was his (insecticide inspector's) duty to inform the court about the same and request him to send the sample to retesting. In the present case court was not made aware of the said fact by the insecticide inspector at any point of time.Section 24 (4) lays down that if an accused notifies his intention of adducing evidence in-controversion of the insecticide analyst's report, the court on its own motion or in its discretion at the request of either the complainant or the accused caused the sample of the insecticide produced before the Magistrate under Sub Section (6) of Section 22 to be dispatched for test and analysis to the Central Insecticide Laboratory. The laboratory is required to furnish it's report in writing duly signed by and under the authority of the Director, Central Insecticide Laboratory within a period of 30 days. What then is required from an accused/ person from whom sample has been taken to be performed under section 24 (4) is only to intimate in writing his intention to insecticide inspector or to the court to get the sample retested from Central Insecticide Laboratory. If he sends such a written intimation showing his intention he has observed his part of duty and nothing more is required from him under the Act. Thereafter, it is the duty of the court to cause sample of the insecticide produced before it under section 24 (6) and dispatch it to Central Insecticide Laboratory for re testing. On the facts in hand court could have done that only when insecticide inspector would have informed it about exercise of right by the applicants under section 24 (3), which admittedly has not been done. Learned AGA's contention therefore is unappealing and bereft of merits and therefore cannot be accepted as neither sub-section (3) nor sub-section (4), separately or jointly, provides for such an eventuality. None of the two sub sections require repeated exercise by the accused or from the person from whom sample has been taken to submit request for retesting again before the court after already making it before inspector who has drawn the sample. Once a written intention for re analysis has been forwarded either to the court or to the inspector repeat exercise for the same is not required in either section 24(3) or 24(4) of Act. The only rider attached with right of retesting is that the sample should not have been earlier tested by Central Insecticide Laboratory. Opening language of section 24(4) makes it very clear. If the accused shows his intention of adducing rebuttal evidence, then, under sub-section (4) of section 24, the court either on it's own motion or in its discretion on the request either of the complainant or the accused may direct for production of second sample before it and then send it for retesting. At this juncture, to obliterate hazy grey area, it is pointed out that samples are drawn and kept in three separate phials. One of the phial is given to the accused and the other two are kept with the insecticide inspector. Out of two phials kept with the insecticide inspector, one phial is send for testing to the insecticide analysis and one phial is kept intact with the insecticide inspector to be utilized at any subsequent stage for retesting. In such procedural act, what sub-section (4) provides is that if the accused intends to challenge insecticide analyst report then the court may in its discretion direct either the accused or the complainant insecticide inspector to produce before it the phial of samples kept with either of them. Language of section 24(4) does not seems to admit any other exposition. In support of above view, I am fortified by the decision of the Apex Court in Northern Mineral Ltd. Vs. Union of India and another: (2010) 7 SCC726. In the aforesaid case, Insecticide Inspector had drawn the sample of Monocrotophos 36 SL from M/s Jindal Traders, who was the dealer of Company Northern Mineral Ltd. On being tested by Regional Pesticides Testing Laboratory, Chandigarh, sample was found misbranded not conforming to ISI specifications. A show cause notice intimating Regional Pesticides Laboratory report was issued to the accused on 1.11.1993 which was received to Northern Mineral Ltd. on 3.11.1993. Vide it's letter dated 17.11.1993, Northern Mineral Limited replied the notice expressing it's intention of adducing evidence in controversion of the report. It also pleaded defence of said report being of no consequence. The shelf life of the insecticide expired in February, 1994. Since the accused were denied right to get the sample retested, they moved an application for discharge U/S 245 of the Code but their prayer was rejected on 13.11.1999 and challenge to the same in criminal revision no. 170 of 2000, before the High Court also was in vain as revision too was dismissed on 5.11.2010 and consequently the matter was taken up to the apex court. The gravamen of appellant's submissions is mentioned in paragraph 12 of the said decision. Analyzing the entire conspectus in respect of that submission, the Apex Court has been pleased to hold as under:-
"20. In the face of the language employed in Section 24(4) of the Act, the act of the accused notifying in writing its intention to adduce evidence in controversin of the report in our opinion shall give right to the accused and would be sufficient to clothe the Magistrate with the jurisdiction to send the sample to the Central Insecticides Laboratory for analysis and it is not required to state that it intends to get the sample analysed from the Central Insecticides Laboratory. True it is that report of the Insecticide Analyst can be challenged on various grounds but the accused cannot be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion. The moment it is done, the conclusive evidentiary value of the report gets denuded and the statutory right to get the sample tested and analysed by the Central Insecticides Laboratory gets fructified.
21.The decisions of this Court in National Organic Chemical Industries Ltd., Unique Farmaid (P) Ltd. and Gupta Chemicals (P) Ltd., in our opinion do support Mr Nehra's contention. True it is that in the first two cases, the accused, besides sending intimation that they intend to adduce evidence in controversion of the report the accused persons have specifically demanded for sending the sample for analysis 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 the accused had intimated its intention to adduce evidence in controversion of the report and that conferred on him the right to get the sample tested by the Central Insecticides Laboratory. The decision of this Court in Gupta Chemicals is very close to the facts of the present case. In the said case "on receipt of the information about the State Alalyst's 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".
22.From the language and the underlying object behind Sections 24(3) and (4) of the Act as also from the ratio of the aforesaid decisions of this Court, we are of the opinion that mere notifying the intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court with the jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that the sample be sent for analysis to the Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to the Central Insecticides Laboratory for test and analysis.
23.Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of the Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before the 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.
24.No proceeding was pending before any court when the accused was served with the Insecticide Analyst's Report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background the Insecticide Inspector was obliged to institute complaint forthwith and produce the sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. The appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to the Central Insecticides Laboratory.
25.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 the Central Insecticides Laboratory. A 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.
Further, observation by the Apex Court in paragraph 24, supra, is of utmost important wherein it has been observed that the appellant did whatever was possible for it but it's right has been defeated by not sending the sample for analysis and report to the Central Insecticide Laboratory. In paragraph 25, the Apex Court took the view that since within the existence of the shelf life, the right of the accused has been denied, continuance of his prosecution will be a futile exercise and abuse of the process of the court. The aforesaid decision squarely covers present case as it is clear from the notice annexure no.1, that shelf life of the pesticide was till 27.12.2005 and much before that date, on 29.3.2005 itself, applicants have applied for retesting and had shown their intention to lead evidence in convtroversion. During this period of eight months, no step was taken by the insecticide inspector to get the sample retested nor the court did anything in that respect. In such a view, inaction on the part of the insecticide inspector cannot be condoned as it offends the most valuable right conferred on the accused by a statutory provision.
To the same effect is another apex court decision in Gupta Chemicals Private Ltd. And others Vs. State of Rajasthan and another: 2010 (7) SCC 735. While considering ambit and scope of section 24 of the Act it has been observed by the apex court as under:-
"11. From a perusal of the afore quoted provisions, it is manifest that ordinarily in the absence of any material to the contrary, the report of the Insecticides Analyst will be accepted as final and conclusive of the material contained therewith. This is however, subject to the right of the accused to have the sample examined by the Central Insecticides Laboratory provided he communicates his intention for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this right vested under the statute is valuable for the defence, particularly, in a case where the allegations are that the material does not conform to the prescribed standard.
12. As noted earlier, in the present case, the appellants had intimated the Insecticides Inspector their intention to have the sample tested in the Central Insecticides Laboratory within the prescribed period of 28 days of the receipt of the copy of the State Analyst's Report, yet no step was taken by the Inspector either to send the sample to the Central Insecticides Laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the Magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the Inspector, it has not been possible for the appellants to have the sample examined by the Central Insecticides Laboratory and in the meantime, the shelf life of the sample of insecticides seized had expired and for that reason no further step could be taken for its examination.
From the above judicial verdicts what is perceivable is that Apex Court has laid down that if the accused expresses his written intention of leading evidence in controversion either to the insecticide inspector or to the court, defeating of his such a right will be detrimental to the continuance of his prosecution under the Insecticide Act.
Two other decisions cited and relied upon by learned senior counsel also affirm the same view. In Mohinder Singh Chauhan (supra) paragraphs 13 and 14 it has been observed as follows:-
"13. Sub-section (3) of Section 24 of the Act clearly provides that petitioner can ask for re-analysis of the sample by making a request to the Insecticide Inspector or the court. In other words, he has the option to make such a request either to the Inspector or the court. The petitioners, in the case in hand, had made a specific request to the Insecticide Inspector for sending the sample for re-testing to the Central Insecticides Laboratory. But, no action in the matter was taken either by the Insecticide Inspector or by any other concerned authority. The petitioners were, thus, clearly deprived of their valuable right of getting the sample re-tested from the Central Insecticides Laboratory, and instead, complaint was filed against them in court.
14. In the light of what has been discussed above, it is held that as the ultimate fate of the case is a foregone conclusion on account of the petitioners having been clearly prejudiced in their defence because they were deprived of their valuable right of getting the sample re-tested from Central Insecticides Laboratory no useful purpose is likely to be served if further proceedings in the complaint are allowed to be continued. Resultantly, the complaint dated 25.1.2000, Annexure P4, is quashed, and so are the further proceedings taken in respect thereof."
Another cited and referable decision in the present context is Swastik Pesticides and Chemicals thro' Vijaykumar (supra) wherein, in paragraphs 11, 12 and 13, it has been held as follows:-
"11. In the above cited case of Rajasthan High Court, admittedly the accused had intimated his intention to adduce evidence in controversion of the report of the Insecticide Analyst sent to him. The Insecticide Inspector did not take steps to get the second sample tested by the CIL. As per sub-section (4) of Section 24, the second sample can be ordered to be reanalysed by CIL on the request made by the complainant-Inspector also. In such a situation, it becomes the duty of the Insecticide Inspector to file a complaint promptly and he should take all necessary steps if any request / demand reaches to him for retesting the sample by the CIL. In the case before the Rajasthan High Court also, there was person from whom the sample was drawn. In the same way, in the case of Mohinder Singh V. State of Punjab, reported in MANU/PH/0317/2003, the High Court has observed as under:
"12. Faced with the above situation, learned Assistant Advocate General contended that the summons issued by the Court on 25.1.2000 for 3.3.2000 were sent by the Deputy Director, Agriculture, Faridabad, to the petitioners on 28.2.2000, and as such, the letter cannot now be heard to say that they did not become aware of the filing of the complaint in Court, before the expiry of shelf life of the product. I am afraid, the respondent cannot be allowed to place reliance on Annexure R-2, in order to fasten the petitioners with the knowledge of complaint having been filed in Court against them before the expiry of shelf life. Reason being that there is no document on record to indicate that the original of Annexure R-2 was, in fact, sent by the Deputy Director, Agriculture, Faridabad, and if at all it was so sent, the same was received by the petitioners. In any case, the petitioners had already doubted the correctness of the report of the Quality Control Laboratory and had also made a specific request to the Insecticide Inspector for the re-analysis of the sample. Therefore, if had become the bounden duty of the complainant to get the sample retested from the Central Insecticides Laboratory. But, as is the admitted case, he did not do so.
13. Sub-section (3) of Section 24 of the Act clearly provides that petitioner can ask for re-analysis of the sample by making a request to the Insecticide Inspector or the court. In other words, h has the option to make such a request to the Insecticide Inspector for sending the sample for re-testing to the Central Insecticides Laboratory. But, no action in the matter was taken either by the concerned authority. The petitioners were, thus, clearly deprived of their valuable right of getting the sample re-tested from the Central Insecticides Laboratory, and instead, complaint was filed against them in court."
12. It is true that in the above cited decision on facts of the High Court found that the accused had not received any intimation about filing of the complaint before the expiry of the self-life of the sample. In the present case, though the complaint is filed well in time but as provided under the scheme the present petitioner had already intimated to the complainant that the accused-company would like to have the sample retested by the CIL. On the day of hearing, the complainant had remind present and in response to the query raised by the court, Id. APP, Ms. N.V. Joshi, on instructs submits that according to the complainant he was not under obligation to send the sample for re-analysis as it was not drawn from the petitioner-accused nor was obligatory to have the wish / desire of the accused-company so that the court can send second part of the sample for re-analysis before issuing process. In such a situation, to avoid abuse of process of law or unwarranted litigation, it is open for the court to send the second sample for retesting if any of the parties is found to have expressed his wish/ desire to have the sample retested. By passing a specific order, on the point as to who will bear the cost of such re-analysis or retest by the CIL and the party put under obligation to pay the costs fails to deposit the amount, then the court may not forward sample for retest to CIL. In the present case, it is submitted by Mr. Sharma that the day on which the complaint was filed, a portion of the sample kept by the complainant was tendered to the court but ultimately, an endorsement on muddamal list reveals that only list was tendered to the court and the sample was retained by the complainant. The said endorsement reads as under:
"(Gujrati version, Hand written in original judgment)"
(Meaning thereby, the muddamal sample has been kept by the complainant and the same shall be tendered to the court on demand, signed by Ms. B.K. Makasana, Agril. Inspector, Surendra Nagar.) Ms. N.V. Joshi, Id. APP, has attempted to clarify that this was done at the instance of the court and the sample can be preserved well. But the relevant point that on that day the complainant could have clarified that the accused-company has already asked for retesting by the CIL. There is nothing on record to show that this gesture was ever made. The complainant was also informed that the accused-company is ready to bear the expenses but as discussed earlier, the payment of cost rests on the decision of the court. So it would not be legal to say that option for manufacturer to have retesting is available only by one way i.e. praying before the court. It is very likely that in such a situation, there may be interest of conflict between the dealer/ retailer and the manufacturer and one may ask for re-analysis and other may also object the same. But it is the privilege of all the accused persons to demand retesting and the present petitioner had already extended that demand to the complainant in the period prescribed. In the case of Harmindar Singh Vs. State of Punjab, the court found that the sample misbranded was neither sent for reanalysis nor was produced in the court. Under Sub-section (4) of Section 24 of the Act quoted above, the court has its own discretion or at the request of the complainant or the accused can ask the sample produced before it to send for testing or analysis to the CIL. In the present case, when the complainant though aware about the demand made by the accused-company had not intimated the court, the day on which the complaint was filed. When the complainant filed the complaint, he ought to have intimated the court about the demand of the accused-company for reanalysis, otherwise the court should have sent the sample for reanalysis deciding the cost factor as reflected in Sub-section (5) of Section 24 of the Act.
13. It would be beneficial to reproduce the observations made by the Punjab and Haryana High Court in the case of Harmindar Singh (supra), which is as under:
"2. It is not disputed that on 30.10.1998, i.e. before the filing of the complaint, Annexure P-1, an application was filed by the manufacturer with a prayer that the complainant be directed to produce the sample in court and the sample may be got analysed from any Laboratory at the cost and expenses of the petitioner. Despite the prayer made in the application, neither the sample was produced in the court, nor was sent for re-testing. Under Sub-section (4) of Section 24 of the Insecticides Act, the court as its own discretion or at the request of the complainant or accused, can cause the sample of Insecticides produced before it to be sent for test or analysis to the Central Laboratory. Admittedly, the sample was not produced for re-analysis, at the request made on behalf of manufacturer, who was co-accused in the complaint and in this way, the petitioner was deprived of his valuable right to get the sample re-analysed. These very grounds prevailed upon the court at the time the complaint qua the manufacturer was quashed in Criminal Misc. No. 3737-M of 1994. Accordingly, the complaint against the petitioner too deserves to be quashed, being an abuse of process of the court."
In view of above settled position of law, entire exercise by the court in violation of accused right vested and conferred under section 24 (3) and (4) of the Act will be futile and fruitless yielding no result in favour of the prosecution.
Concludingly, this 482 Cr.P.C. Application is allowed. Prosecution of applicants in case no. 1206 of 2005, State versus Satish Kumar Tyagi and others, under section 29(1) of Insecticides Act,1968 pending before C.J.M., Bijnor is hereby quashed.
Dt.2.9.2011 Rkg/AKG/-