1990 Supreme(Raj) 640
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Farooq Hasan, J.
S.K. Abuja - Appellant
Versus
State of Raj. & ors. - Respondent
S.B. Cri. Misc. Petition No. 1067 of 1989.
Decided On : 3-09-1990
The manufacturer has a valuable right to controvert the analyst's report and get the sample reanalyzed under the Insecticides Act, 1968. Delay in filing the complaint and expiry of the sample can deprive the manufacturer of this opportunity, rendering the prosecution futile.
Headnote:
INSECTICIDES ACT, 1968 - SECTION 24 - MANUFACTURER'S RIGHT TO CONTROVERT ANALYST'S REPORT - DENIAL OF OPPORTUNITY - QUASHING OF PROCEEDINGS - DELAY IN FILING COMPLAINT - EXPIRY OF SAMPLE - ABUSE OF PROCESS OF COURT.
Fact of the Case:
The petitioner, a Regional Technical Manager of a company manufacturing pesticides, challenged the proceedings initiated against him under the Insecticides Act, 1968, for allegedly selling misbranded pesticides. The samples were taken from a dealer, not the manufacturer, and the complaint was filed after a delay of two years. The petitioner argued that the delay deprived him of the opportunity to controvert the analyst's report and send the sample for reanalysis, as the product had already expired.
Finding of the Court:
The court held that the manufacturer has a valuable right to controvert the analyst's report and get the sample reanalyzed. The delay in filing the complaint and the expiry of the sample denied the petitioner this opportunity, rendering the prosecution futile. The court also noted that the Insecticides Act does not provide the same safeguards to manufacturers as the Drugs and Cosmetics Act and the Prevention of Food Adulteration Act.
Issues: 1. Whether the manufacturer has a right to controvert the analyst's report under the Insecticides Act, 1968? 2. Whether the delay in filing the complaint and the expiry of the sample deprived the petitioner of the opportunity to controvert the analyst's report? 3. Whether the prosecution of the petitioner would amount to an abuse of the process of Court?
Ratio Decidendi: The court relied on the following principles: 1. The manufacturer has a valuable right to controvert the analyst's report and get the sample reanalyzed under the Insecticides Act, 1968. 2. The delay in filing the complaint and the expiry of the sample denied the petitioner this opportunity, rendering the prosecution futile. 3. The Insecticides Act does not provide the same safeguards to manufacturers as the Drugs and Cosmetics Act and the Prevention of Food Adulteration Act.
Final Decision: The court allowed the petition and quashed the proceedings against the petitioner, holding that the prosecution would amount to an abuse of the process of Court.
JUDGMENT
1. - This criminal misc. petition under Section 482, Cr.P.C. is for quashing the proceedings pending in cr. case No. 357/85 before Judicial Magistrate 1st Class, Bandikui, (District Jaipur) for the alleged offences punishable under Section 29 (1) (i) of the Insecticides Act, 1968, (for brevity, the Act').
2. Admitted facts are that petitioner, S.K. Ahuja, on July 16, 1983, was working as Regional Technical Manager in a public limited Company-Bayer (India) Ltd., having registered office at Express Towers. Nariman Point, Bombay and branch office at 56. Jan Path, New Delhi. The Bayer (India) Ltd., has its factory at Thane in State of Maharashtra Manufacturing pesticides known as Follidol Dust, having a valid registration of manufacturing licence under the Act, and the Company sells its products from Bombay throughout India.
3. Brief facts giving rise to this petition are that on July 10, 1985, a complaint was filed by the Insecticide Inspector, Dy. District Agriculture Office, Dausa, in the Court of Munsiff & Judicial Magistrate, Bandi Kui. It had been alleged in the complaint that on 16.7.83, the Inspector (Insecticide) Sub-Division, Dausa inspected the shop of Gorla Fertilisers, Raj Bazar, Bindi Kui, whereupon Suresh Chandra Sharma was sitting and he was present as its Proprietor & owner. Suresh Chand was informed of taking sample of BHC 10% dust & Follidol 2% dust vide Form No. XII. The samples were taken and sealed allegedly according to the rules, and sent for analysis to Assistant Agriculture Chemist, State Pesticide Testing Laboratory, Durgapura on July 28, 1983 who sent his report on September 1, 1983 and according to the report, the sample of follidol 2% did not confirm to I.S. specification No. 8960-1978 inactive ingredient hence misbranded. A show cause notice was also sent on 8.11.83 by the Department of Agriculture to the seller M/s Gorla Fertilisers. Bandikui, Dealer M/s Shri Agro Agencies, Sabzi Mandi, Jaipur and the Manufacturer M/s Bayer (India) Ltd., Bombay for selling, stocking, and manufacturing misbranded drug. Sanction for launching prosecution against the seller, dealer and manufacturer was accorded under Section 31(1) of the Act by the Joint Director (Plant Protection), Directorate Agriculture, Jaipur, for offence under Section 29(1)(a) punishable under Section 29(1)(i) of the Act.
4. Petitioner, Regional Technical Manager, Bayer (India) Ltd. manufacturing Company of the Follidol dust, was directed to appear in the Court of Munsif & Judicial Magistrate, Bundi, on August 7, 1989. Hence this criminal misc. petition.
5. The case of the petitioner is that the samples were manufactured by the Company on February 18, 1983 with its expiry date 17.8.1984, and were taken by the Insecticide Inspector on July 16, 1983 by which the complaint was filed on 10.7.1985 in the Court whereas the samples were sent for analysis on July 28, 1983, the petitioner has been summoned in August, 1989-that too after the expiry of the product in question. Taking the aid of the above circumstances, learned counsel for the petitioner urged that undoubtedly, due to the delay on the part of the prosecution in filing the complaint the right conferred upon the petitioner under Sub-section (4) of Section 21 of the Act has become illusory and meaningless, and that apart, from the allegations made in the complaint it is obvious that the prosecution has based its case solely on the report of Insecticide Analyst purported to have been given under Section 24 of the Act.
6. Learned counsel for the petitioner drew my attention to the provisions of sub-section (1) of Section 24 of the Act. Section 24 (1) provides that within a period of sixty days the Insecticide Analyst shall deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form; and under subsection (2) of Section 24, the Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and
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