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RAJASTHAN HIGH COURT AT JAIPUR BENCH
N.L.Tibrewal, J.
M/s Bharat Insecticides Ltd. & ors. - Appellant
Versus
State of Rajasthan & ors. - Respondent
S.B. Cri. Misc. Petition No. 556 of 1995.
Decided On : 4-07-1996
INSECTICIDES ACT, 1968 - SECTION 24 - INTERPRETATION - RIGHT TO CHALLENGE ANALYST'S REPORT - AVAILABILITY TO ALL ACCUSED - DELAY IN LAUNCHING PROSECUTION - PREJUDICE TO ACCUSED - QUASHING OF PROCEEDINGS - SECTION 33 - OFFENCES BY COMPANIES - LIABILITY OF DIRECTORS - CONDITIONS - SECTION 30(3) - DEFENCE AVAILABLE TO DEALER AND DISTRIBUTOR - CONDITIONS.
Fact of the Case:
Petitioners, a manufacturing company and its directors, challenged their prosecution under the Insecticides Act, 1968, alleging that they were not provided with a copy of the analyst's report and that the prosecution was launched after the expiry of the self-life of the insecticide, depriving them of their right to get the sample re-tested. The dealer and distributor of the insecticide also challenged the prosecution, arguing that they were not liable for the contravention as they had acquired the insecticide from a duly licensed manufacturer and had taken all necessary precautions.
Finding of the Court:
The Court held that the right to challenge the analyst's report under Section 24 of the Act is available to all the accused against whom the report is sought to be used, and not just the person from whom the sample was taken. The Court further held that if the second sample is not sent for re-testing or re-analysis despite the notification expressing intention to adduce evidence in contravention of the report made within 28 days and the prosecution is launched after inordinate delay, it would be fatal to the prosecution as it would deprive the accused of their valuable right to get the sample tested or analysed in the CIL. The Court also held that the directors of the company could not be held liable for the offence committed by the company unless it was proved that the offence was committed with their consent or connivance or was attributable to any neglect on their part, or it was proved that they were persons in charge of or responsible to the company for the conduct of the business of the company. The Court further held that the defence available to the dealer and distributor under Section 30(3) of the Act was subject to proof of certain conditions enumerated in Clauses (a), (b) and (c) and the burden to prove them lies on the accused.
Issues: 1. Whether the right to challenge the analyst's report under Section 24 of the Insecticides Act, 1968, is available to all the accused against whom the report is sought to be used? 2. Whether the delay in launching prosecution after the expiry of the self-life of the insecticide would be fatal to the prosecution? 3. Whether the directors of a company can be held liable for the offence committed by the company without proof of their consent, connivance, neglect, or responsibility for the conduct of the business of the company? 4. Whether the defence available to the dealer and distributor under Section 30(3) of the Act is subject to proof of certain conditions and the burden to prove them lies on the accused?
Ratio Decidendi: 1. The right to challenge the analyst's report under Section 24 of the Insecticides Act, 1968, is available to all the accused against whom the report is sought to be used, and not just the person from whom the sample was taken. 2. If the second sample is not sent for re-testing or re-analysis despite the notification expressing intention to adduce evidence in contravention of the report made within 28 days and the prosecution is launched after inordinate delay, it would be fatal to the prosecution as it would deprive the accused of their valuable right to get the sample tested or analysed in the CIL. 3. The directors of a company cannot be held liable for the offence committed by the company unless it was proved that the offence was committed with their consent or connivance or was attributable to any neglect on their part, or it was proved that they were persons in charge of or responsible to the company for the conduct of the business of the company. 4. The defence available to the dealer and distributor under Section 30(3) of the Act is subject to proof of certain conditions enumerated in Clauses (a), (b) and (c) and the burden to prove them lies on the accused.
Final Decision: The Court quashed the criminal proceedings against the manufacturing company and its directors, while allowing the proceedings against the remaining accused to continue. The Court also directed the Director, Agriculture, Rajasthan, Jaipur, and the Registrar, Rajasthan High Court, to take necessary steps to ensure that such cases are instituted and prosecuted in a proper manner and that the concerned Magistrates give top priority to the trial of such cases.
Shri Ishpal Singh, Insecticide Inspector, in exercise of powers under section 21(1) of the Act took sample of insecticide known as 'demethote 30% EC' in three sealed containers of 100 N. each from M/s Choudhary Beej Bhandar, Khood (Sikar) on 24.8.93 for getting it analysed/tested by the Insecticide Analyst. One part of the sample (i.e. one container of 100 Ml.) after suitably marking and sealing the same, was sent for analysis to the Insecticide Analyst i.e. State Pesticide Testing Laboratory, Durgapura, Jaipur. On analysis by the Insecticide Analyst, the sample was found mis-branded as it did not conform to the specifications vide report dated, October 21, 1993. The Insecticide Inspector, on receipt of test/analysis report on 27.10.93, delivered one copy of the report to M/s Choudhary Beej Bhandar, Khood, from whom the sample was taken alongwith a notice to show cause as to why legal action be not taken under the Act. In notice it was made dear to notify within 28 days of receipt of the report, its intention of adducing evidence in contravention of the report by getting second sample analysed in the Central Insecticide Laboratory (for short CIL). Copies of show-cause notice were forwarded to (i) M/s Bharat Insecticides Ltd., New Delhi-manufacturer of the insecticide (ii) Joint Director, Agriculture (Plant Protection)/Dy. Director, Agriculture (Quality Control) Rajasthan Jaipur and (iii) Dy. Director, Agriculture (Extension)/Registration Officer, Sikar for necessary action. It may be stated here that a copy of the report of Insecticide Analyst was not sent to M/s Bharat Insecticides Ltd. alongwith show cause notice. However, M/s Bharat Insecticides Ltd. the manufacturer, vide their communication dated 11th November, 1993 gave reply to the show cause notice. While explaining their stand about sub-standard of the insecticide, the Company, disagreeing with the report, requested the Agriculture Officer (Plant Protection),/Insecticide Inspector to get another sample re-tested/re-analysed in the CIL making it further clear that the Company will bear the expenses of retesting. It appears that inspite of notification of the intention by the Company within 28 days of the receipt of show-cause notice, no step was taken by the concerned officer to get another sample tested in the CIL. However, no such notification expressing intention of adducing evidence in contravention of the report by getting the second sample examined in the CIL was made by the dealer from whom the sample of insecticide was taken by the Inspector.
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