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2006 Supreme(P&H) 2678
PUNJAB & HARYANA HIGH COURT
T.P.S.Mann, J.
Ravi Organics Ltd.
Versus
State Of Punjab
Criminal Miscellaneous No. 29538 of 2003,
Decided On : JULY 11, 2006
i) Reanalysis of Sample - Once a sample has already been re-analysed, the law does not permit for any further re- analysis.
ii) Packed Container - If contaminated insecticide is received by retailer from manufacture in a pocked manner then authorities would be required to proceed against the manufacturer and not retailer.
Headnote:Insecticides Act, 1968 - Section 3 (k) (1), 17, 18, 29, 33, 24, (3), 24 (4) - Insecticides Rules - Rule 27 (5) - Sample of phorat 10% - Found misbranded - Complaint filed much after the expiry date of insecticide - Reanalysis of sample had been carried out as per the request made by the distributor - Once the reanalysis has been carried out either at the instance of dealer, or at the instance of distributor or even at the instance of manufacture the right to get re - analysis would come to an end - Petitioner could not claim any further right to go for analysis once again - Contention that filing of complaint much after expiry date of insecticide, valuable right for re - analysing the sample accrued to the petitioner was lost is without any legal basis and deserves to be rejected. (Para 4, 7 and 8)
Insecticides Act, 1968 - Section 24 (3) and 24 (4) - Reanalysis of sample - Once a sample has already been re - analysed, either at the instance of dealer, or at the instance of distributor or even at the instance of manufacture the law does not permit for any further re - analysis. (Para 7)
Insecticides Act, 1968 - Section 3 K (1) 17, 18, 33, 29 - Insecticides Rules - Rule 33 - Form XX - Service of notice - Notice to manufacture or distributors - Stage of - Notice is required to be given to the distributors only if the dealer appeals before the authority and claims that sample was drawn from an unopened packing - Similarly at that stage only, when distributor inform the authorities that he received the insecticide in a packed manner from the manufacture, authorities would be required to proceed against the manufacturer and not retailer. (Para 10)
T.P.S.Mann, J.
1. The main thrust of the petitioner while seeking quashing of the complaint and subsequent proceedings under Sections 3(k)(1), 17, 18 and 33 read with Section 29 of the Insecticides Act and Rule 27(5) of Insecticides Rules is that the complaint was filed after the date of expiry of the insecticide and thus a valuable right to the petitioner under Sections 24(3) and 24(4) of the Insecticides Act, 1968 (hereinafter referred to as `the Act) was lost.
2. On 26.7.1997, the Insecticides Inspector visited the shop of M/s. Friends Agro Chemicals and took sample of Phorat 10% in one kilogram packing, which bore the date of manufacturing as 14.4.1997 with expiry date of 13.4.1998. The sample was subjected to examination by Senior Analyst, Insecticides Testing Laboratory, Amritsar, who gave his report that the sample was mis- branded as it contained only 8.84% of active ingredients of Phorat against 10% as labelled on the packing. A copy of the report was communicated by the authorities to Shri Deepak Sharma, partner of M/s. Friends Agro Chemicals along with a show cause notice. In pursuance thereto, Shri Deepak Sharma submitted a written reply on 10.9.1997 and on the same day at the time of personal hearing, he produced a photocopy of invoice-cum-delivery challan by virtue of which he claimed to have purchased the insecticides in question in one kilogram packing from M/s. Somanil Chemicals. Accordingly, a copy of the analysts report was also communicated to M/s. Somanil Chemicals along with show cause notice. In response to said show cause notice, a written reply was submitted by M/s. Somanil Chemicals and Chief Agriculture Officer, Amritsar was requested for re-analysis of the reference sample. After completing the formalities, the reference sample was sent for re-analysis to Insecticides Testing Laboratory, Faridabad. After carrying out analysis, Senior Scientific Officer (Chemical) of Central Insecticides Testing Laboratory, Faridabad furnished a report, as per which active ingredients were only 8.1% as against 10% mentioned on the label of the packing from which the sample was drawn. The re-analysis report was accordingly conveyed to M/s. Friends Agro Chemicals. Thereafter on 2.7.2000, a complaint (Annexure P-1) was filed against M/s. Friends Agro Chemicals and others. The insecticide in question had been shown to be manufactured by the petitioner i.e. M/s. Ravi Organics Limited and accordingly, it was also made one of the accused, i.e. accused No. 4 in the aforementioned complaint.
3. After perusing the complaint, and other documents, Chief Judicial Magistrate, Amritsar found a prima facie case against accused including the present petitioner for the offences mentioned in the complaint and accordingly summoned them to face trial as accused. The quashing of the complaint and the subsequent proceedings taken thereunder are sought by the petitioner by filing the present petition.
4. It has been submitted that the complaint was filed on 2.7.2000 i.e. much after the expiry date of the insecticide and thus a valuable right which could accrue to the petitioner under Sections 24(3) and 24(4) of the Act was lost. In support of his contention, learned counsel has relied upon M/s. Raj Hans Chemicals v. State of Punjab, 1994(2) RCR(Crl.) 139; M/s. Hindustan Pulverising Mills v. State of Haryana, 1997(2) RCR(Crl.) 116; M/s. Trilo Agro Industries (P) Ltd. v. State of Punjab, 1997(3) RCR(Crl.) 632 and State of Haryana v. Unique Farmaid Pvt. Ltd., 1999(4) RCR(Crl.) 540 (SC).
5. There is no dispute with the proposition of law enunciated in the aforementioned judgments that a valuable right vested in the accused to get the sample re-tested and further that the right to get the sample re-tested is not only of the person from whom the sample was taken but also of the manufacturer, yet it is to be seen whether the authorities denied the said right to the accused.
6. It is clearly stated in the complainant (Annexure P-1) that M/s
