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2002 Supreme(P&H) 1278
PUNJAB & HARYANA HIGH COURT
Adarsh Kumar Goel, J.
M/s Randeep Paper Board Mills
Versus
The State Haryana
Criminal Misc. No. 3853 of 2001,
Decided On : NOVEMBER 21, 2002
The court has discretion to order re-analysis of samples in the interest of justice, even in the absence of a specific statutory provision.
Headnote:
Essential Commodities Act - Re-analysis of sample - The court has discretion to have re-analysis conducted if it is considered necessary in the interest of justice.
Fact of the Case:
The petitioner sought quashing of a complaint under the Essential Commodities Act, alleging that a sample of fertilizer drawn from their premises was found to be non-standard and their application for re-analysis was rejected by the trial Court.
Finding of the Court:
The trial Court's decision to reject the application for re-analysis was not fully consistent with the view of higher courts, which held that the court has discretion to order re-analysis if it is considered necessary in the interest of justice.
Issues: The issue revolved around the petitioner's entitlement to seek re-testing of the sample and the trial Court's discretion to allow re-analysis in the absence of a statutory provision for the same.
Ratio Decidendi: The court can order re-analysis in the interest of justice, even in the absence of a specific provision for re-testing, as long as it is considered necessary.
Final Decision: The trial Court was directed to re-consider the matter in accordance with law and the observations made by the higher courts.
Adarsh Kumar Goel, J.
1. This petition seeks quashing of complaint under the provisions of Essential Commodities Act. In the complaint, it is alleged that on 16.12.1999, the Fertilizer Inspector checked the premises of Malhotra Traders and drew a sample of fertilizer manufactured by the petitioner company. On analysis, the sample was found to be non-standard. The petitioner made an application for re-analysis of the sample but the same has been rejected by the trial Court on the ground that there was no provision in the concerned fertilizer order entitling an accused to re-analysis and the question whether the sample had been properly analysed shall be seen at appropriate stage. Hence this petition.
2. It is contended that though there is no provision for re-testing, the petitioners were entitled to seek re-testing and rejection of application of the petitioners for re-testing was not justified. Reliance is placed on M/s Janta Agro Fertilizers v. State of Uttar Pradesh, AIR 1994 Allahabad 164 and an unreported Division Bench judgment of the Allahabad High Court in M/s Agarwal Pesticides and Chemical Industries v. State of Uttar Pradesh, decided on 29.1.1979.
3. Before considering the question raised, it may be noted that validity of clause 19 of the Fertilizer Control Order (hereinafter called the Order) was challenged in this Court. Vide judgment dated 16.9.1996, a Single Judge of this Court struck down the Control Order on the ground that in absence of opportunity to the accused to get the sample re-analysed, the control order was violative of Article 21 of the Constitution of India. A Division Bench of this Court vide judgment dated 29.7.1997, in The Director, Agriculture, Punjab Chandigarh v. M/s Gurmukh Mal Shibba Mal, 1997(4) RCR(Criminal) 780 reversed the view taken by the Single Judge. The Division Bench observed as under :-
"An accused person of course has a right to set up defence in terms of section 293 Cr.P.C. What would be the nature of defence can again be a matter of sheer guess. In any case one could visualise that petitioner would adduce all such evidence so as to prove his innocence. May be he examines another expert to cross-examine the official witness or makes reference to some celebrated authority on law relevant to the point in controversy to establish that the conclusion arrived at by the analyst is indeed impermissible and as a last resort can make out a case for the Court to send the third sample for its analysis by another laboratory. With these safeguards at his command it can be stated that procedure prescribed is neither arbitrary or unreasonable nor unfair."
4. The view of the Division Bench was upheld by Full Benches of this Court in The Director, Agriculture, Punjab and others v. Narinder Pathak and other, 2000(4) RCR(Criminal) 526 (Punjab and Haryana) (FB) decided on 13.10.1999 and then by the Apex Court in A.S. Parmar v. State of Punjab and others, Civil Appeal No. 1465 of 2001 decided on 27.8.2002.
5. Coming to the present case, the view taken by the trial Court that since there was no provision for re-analysis the prayer for re-analysis could not considered, is not fully consistent with the view of the Division Bench of this Court in M/s Gurmukh Mal Shibba Mals case (supra) which has been upheld the Full Bench of this Court and by the Apex Court. No doubt right of re- testing as available in other statutes may not be available to a party, but in an appropriate case, the court has discretion to have re-analysis conducted if it is considered to be necessary in the interest of justice.
6. In AIR 2001 Supreme Court 1303 : 2001(2) RCR(Criminal) 265 (SC), Amery Pharmaceuticals and another v. State of Rajasthan, which deals with a case under the Drugs Act, it was held that the court has a discretion to have sample re-tested under the provisions of Drugs and Cosmetics Act, 1940.
7. In Ram Dayal v. Municipal Corporation of Delhi and another, AIR 1970 Supreme Court 366 under the Prevention of
