Challenge in the instant 482 Cr.P.C. Application by the two applicants Manoj Kumar, Assistant Area Business Manager, Bharat Insecticides Ltd, New Delhi (A-1) and the company Bharat Insecticides Ltd., New Delhi (A-2) is to their prosecution in criminal case no. 1208 of 2005 (State Vs. Anil Kumar and another) under Section 29(1)A of Insecticide's Act 1968 (hereinafter referred to as the Act) pending before C.J.M., Bijnor. Ancillary prayer is for stay of trial court's proceeding pending final disposal of instant 482 Cr.P.C. Application.
Shorn of unnecessarily details and stated briefly preceding facts generating instant 482 Cr.P.C. Application are referred thus.
Anil Kumar is the owner of M/s Sisodia Beej Bhandar, Bijnor a licensee firm engaged in the business of insecticides manufactured by M/s Bharat Insecticide Ltd., 1506, Vikram Tower Rajendra Palace, New Delhi (A-2). For sampling purpose Insecticide Inspector Anand Singh Chauhan on 8.12.2004 purchased pesticides chemical isoproturan 75% of Batch No. 411242099 manufactured on 21.11.2004 having it's shelf life till 23.11.2006. Three separate phials of 100 milligram pesticide chemical was prepared and corked, seals were affixed and notice in Form 20 was drawn. On 9.12.2004 vide office memorandum no. 2226, aforesaid pesticide chemical was sent for analysis to Fertilizer and Pesticides Quality Control Laboratory, Alam Bagh, Lucknow, whose report dated 31.12.2004,vide letter no.1967, disclosed that ACI/ALK/FMMA was only 53.42%, which should have been 75% and, therefore, sample was declared misbranded. Aforesaid analysis report was received to complainant insecticide inspector on 10.1.2005 who thereafter issued two notices to the applicants annexed with aforementioned analysis on 8.2.2005 vide office letter no. 2566. Both the seller and the manufacturer company A2 replied said notices on 27.2.2005 and 16.3.2005 and they both expressed their written desire to get the samples retested vide annexure no. 2 to the Application and annexure no. CA-3 to the counter affidavit. Since the applicants had committed offence under Section 29(1)A of Insecticide's Act, sanction for their prosecution was applied before District Magistrate, Bijnor U/S 31(1) of the Act. Exercising power under that provision and in conformity with conferred power vide G.O. No. 10103/(1)/12-5-189/76 dated 19.1.77 District Magistrate accorded sanction on 17.3.2005, and consequently the same day a complaint was filed against the seller and company A2 in the Court of C.J.M., Bijnor being complaint case no. 1208/200,State Vs. Anil Kumar and another. In paragraph 9 of the said complaint, it was specifically averred that M/s Sisodia Beej Bhandar, Bijnor is not satisfied with the report of Fertilizer and Pesticides Quality Control Laboratory, Alam Bagh, Lucknow and have requested for getting the sample retested.
CJM, Bijnor, took cognizance of the offence on the basis of the aforesaid complaint and summoned the seller Anil Kumar and applicant company, A2 fixing 16.5.2005 for it's appearance before him. Company, A2 in it's Board of Director's meeting dated 10.9.2009 passed a resolution authorising A1 to represent company A2 in the said complaint case and that is how Manoj Kumar has filed this application as A1. Since company and it's representative Manoj Kumar A1 were being prosecuted in the aforementioned complaint case that the two applicants have generated instant 482 Cr.P.C. Application for quashing of their said trial.
In the present 482 Cr.P.C. Application, a supplementary affidavit has been filed by the applicants and a counter affidavit has also been filed by Sri J.S. Rathore, Insecticide Inspector / Plant Protection Officer, Bijnor on behalf of respondent State. In the aforesaid background, I have heard Sri A.B. Saran, learned Senior Counsel assisted by Sri Kartikey Saran for the applicants and the learned AGA for the State.
Sri Saran castigated continuance of applicant's prosecution on the ground that after being served with the report of Fertilizer and Pesticides Quality Control Laboratory, Lucknow, dated 31.12.2004, which was received to the insecticide inspector on 10.1.2005 that, on 8.2.2005, the seller and the manufacturer company A-2, were issued notices. As is mentioned in paragraph 9 of the complaint seller Anil Kumar expressed his desire for getting the sample retested vide it's letter dated 27.2.2005, prior to launching of prosecution before C.J.M. but pursuant thereto no step was taken by the inspector to get the sample retested and, therefore, the entire prosecution of the applicants deserves to be quashed. Sri Saran, for his aforesaid submissions placed reliance on annexure CA 1 to the counter affidavit where various dates are recorded regarding the entire input materials to contend that sample was dispatched for analysis to the laboratory at Lucknow on 9.12.2004, it was analysed on 31.12.2004 and the report was received on 10.1.2005 by the insecticide inspector. Notice was given to the seller and A2 on 8.2.2005 to which seller replied on 27.2.2005 and A-2, replied it on 16.3.2005. Government Advocate consented for launching a prosecution was obtained on 5.3.2005 and sanction was accorded by the District Magistrate on 17.3.2005 and on that date itself complaint was filed before CJM, Bijnor. Learned Senior Counsel, therefore, submitted that in consonance with Section 24(3) and (4) of the Act, the applicants have performed their part duty and, therefore, their prosecution be quashed, since a valuable right conferred on the accused under the aforesaid sections has been violated by the insecticide inspector. In support of the said contention, applicants' 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 Sr. counsel submitted that case of the applicants is squarely covered by the aforesaid apex court decisions where under entire prosecution of the accused have been quashed for the same reason and, therefore, the same law be applied in the case of the present applicants and their prosecution be also quashed.
Learned AGA, per contra, refuted the arguments and placed reliance on Section 24(4) of the Act to contend that since the applicants never applied to the Court for sending the sample for retesting, they cannot avail any benefit under Section 24(3) of the Act. According to him, it was the accused who had to bring on record the material favourable to them and prosecution could not be saddled with that responsibility. It is his submission that Section 24(3) and (4) has to be read together and when read in-conjunction, the accused has to apply to the Court over and above his application to the inspector for getting the sample retested from Central Insecticide Laboratory. He, therefore, submitted that prosecution of the applicants cannot be quashed and present 482 Cr.P.C. Application be dismissed.
I have considered the arguments raised by both the sides. The question involved in the present 482 Cr.P.C. rotates around a pivotal question as to whether breach of any right conferred on the accused under Section 24(3) and (4) of the Act will by itself be sufficient to scuttle the prosecution at it's very thresh hold or not? The aforesaid question no longer remains res-integra. This very question has been considered and dealt with by the apex court in its aforementioned decisions cited and relied upon by the applicants. Recently in Bharat Insecticides Ltd. and another Vs. State of U.P., 482 Cr.P.C. Application No. 31053 of 2009, the said aspect of the matter has been gone into detail by me. After referring to Section 24, it was held that what is required under Section 24(3) of the Act in-conjunction with sub section (4) thereof is that if the person from whom sample has been taken and / or accused expresses his written intention of getting the sample retested from a Central Laboratory and if the aforesaid right of the accused is forfeited because of inaction and remissness of the insecticide inspector or the court, then, continuance of prosecution of the accused will be a futile exercise and in such a view, prosecution deserves to be quashed. It was also observed thereunder that the Apex Court has laid down the law favouring the accused on the said score for the aforesaid reasons. Various decisions referred to above, supports contentions of counsel for the applicants. It has been observed by this Bench in the aforesaid 482 application as follows:-
"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 therefore. 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 controversion 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 phials 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 seem 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 controversion 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 Analyst'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 controversion. 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."
There is no reason to take a different view from the above, which is in consonance with apex court decisions.
Wrapping up the discussion, this 482 Cr.P.C. Application is allowed. Prosecution of applicants in case no. 1208 of 2005, State versus Anil Kumar and another, under Section 29(1)A Insecticide's Act, pending before C.J.M., Bijnor is hereby quashed.
Let a copy of this order be placed before the trial court for its intimation.
Dt.2.9.2011 AKG/-