APL-J-565-16 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.565 OF 2016
Jai Kumar Sedha
Senior Manager Production
Biostadt India Limited,
Aged 50 years, Occ. Service
Poonam Chambers 'A' Wing
6th Floor, Dr A. B. Road,
Worli Mumbai 400 018. ... Applicant
-vs-
1. State of Maharashtra
Represented by Agriculture Officer and
Insecticide Inspector Officer of the Panchayat
Samitee Biwapur, Dist. Nagpur
2. R. H. Rathod
Aged Adult, Occ. Service
Agriculture Officer and Insecticide
Inspector Officer of the Panchayat
Samitee Biwapur, Dist. Nagpur
3. M/s Syngenta India Ltd.
Amar Paradigm S. No.110/11/3
Baner Road Pune 411045
4. Mahesh P Sonawane
(M/s Syngenta India Ltd.)
Amar Paradigm S. No.110/11/3
Baner Road Pune 411045
5. M/s Parve Krushi Kendra,
Main Raod Bhiwapur, Tah. Bhiwapur,
Dist. Nagpur 441201
C/o
Wasudeo Devanathji Parve
C/o M/s Parve Krushi Kendra,
Main Road, Bhiwapur, Bhiwapur,
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APL-J-565-16 2/10
Dist. Nagpur 441201 ... Non-applicants
Shri U. N. Vyas, Advocate for applicant.
Ms S. Haider, Additional Public Prosecutor for non-applicant No.1.
Shri M. M. Sudame, Advocate for non-applicant No.2.
Shri G. Lahoti, Advocate for non-applicant Nos.3 to 5.
CORAM : A. S. CHANDURKAR, J.
ARGUMENTS WERE HEARD ON : November 13, 2017 JUDGMENT PRONOUNCED ON : November 22, 2017 Admit.
Heard finally with consent of learned counsel for the parties. This application filed under Section 482 of the Code of Criminal Procedure Code, 1973 takes exception to the order issuing process on 23/04/2015 in Summary Criminal Case No.75/2015. These proceedings have been filed by the non-applicant Nos.1 and 2 herein under provisions of Sections 29 and 33 of the Insecticides Act, 1968 (for short, the said Act).
2. As per the averments in the complaint, the non-applicant No.3 is a Company manufacturing and selling insecticides. The present applicant is dealer engaged in the business of selling of said insecticides. On 21/08/2012 the Agriculture Officer, Panchayat Samiti , Bhiwapur visited the shop of the applicant. In exercise of powers under Section 21(1)(c) of the said Act a sample was taken of Propiconazole 25% E.C. The date of manufacturing mentioned was 06/09/2011 and the date of expiry was ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:12:32 ::: APL-J-565-16 3/10 05/09/2013. These samples were taken as per the provisions of Section 22 (5) of the said Act. One sample was sent to the Insecticide Analyst and Chemist on 23/08/2012. The report of the Insecticides Testing Laboratory was received on 05/10/2012 and it was stated that the sample failed to conform to relevant specifications. A copy of this report was sent to the manufacturer as well as the accused No.4. As the reply given by the manufacturer was not satisfactory, sanction was sought to prosecute the accused persons. This consent was received and on 23/04/2015 the complaint came to be filed alleging offence under Section 29(2) and (3) of the said Act.
3. The learned Magistrate on the same day issued summons to the accused persons. Being aggrieved, this application under Section 482 of the Code for quashing the criminal proceedings has been filed.
4. Shri U. N. Vyas, learned counsel for the applicant submitted that the applicant was not a person from whom the sample in question was taken. He was merely a dealer of said insecticides. Referring to the communication dated 19/10/2012 issued by the Quality Control Inspector, it was submitted that as per the said communication, the expiry date of the insecticide of which sample was taken was shown as 05/09/2012. The requisite sample was sent on 19/10/2012 by which date the period of expiry of said sample ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:12:32 ::: APL-J-565-16 4/10 had been crossed. It was then submitted that the complaint having been filed on 23/04/2015 which was beyond the expiry period, the applicant was deprived of the statutory remedy of having the said sample inspected by the Central Insecticides Laboratory. The right conferred under Section 24(3) of the said Act therefore could not be exercised thus causing prejudice to the rights of the applicant. In this regard, the learned counsel placed reliance on the decisions in The State of Punjab vs. National Organic Chemical Industries Ltd. (1996) 11 SCC 613, State of Haryana v. Unique Farmaid P. Ltd. And ors. 2000 Cri.L.J. 2962 as well as judgment of learned Single Judge in United Phosphorus Ltd. vs. The State of Maharashtra and ors. 2009 (1) Mh.L.J. (Cri) 531. It was thus submitted that as the complaint had been filed after expiry of the shelf life of the insecticide, the proceedings deserve to be quashed.
5. Shri M. M. Sudame, learned counsel for the non-applicant No.2 on the other hand submitted that the challenge as sought to be raised by the applicant was premature. It was submitted that at this stage, the learned Magistrate had merely issued process in the complaint. The statements made in the complaint at this stage were required to be taken at their face value and the stand sought to be raised by the applicant by way of defence cannot be gone into. It was submitted that the remedy of approaching the Sessions Court for challenging the order issuing process had not been availed. It was ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:12:32 ::: APL-J-565-16 5/10 urged that after following the prescribed procedure, the samples had been taken and the report of the Insecticide Inspector had been obtained. As the sample failed to meet the specifications, it was clear prima facie that an offence had been made out. Though the applicant was served with copy of the report of the Analyst, he did not request the same to be sent to the Central Insecticides Laboratory. The complaint was filed immediately after receiving the sanction from the Competent Authority. It was thus submitted that all these challenges as sought to be raised by the applicant herein could be raised before the learned Magistrate who had rightly taken cognizance by issuing process.
Ms S. Haider, learned Additional Public Prosecutor appeared for non-applicant No.1. Shri G. Lahoti, learned counsel appeared for non- applicant Nos.3 to 5 and he supported the contentions as raised by the learned counsel for the applicant.
6. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. The order under challenge is one issuing process against the applicant and other accused. At this stage it is only the complaint and the averments made therein that can be examined for concluding as to whether the learned Magistrate was justified in issuing process on the basis of the complaint or whether even after accepting all the statements made in the complaint at ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:12:32 ::: APL-J-565-16 6/10 their face value, the process could not have been issued and continuation of the proceedings would amount to abuse of the process of law.
7. As per the complaint, the Insecticide Inspector visited the shop premises of the applicant on 21/08/2012 and took necessary samples of the concerned insecticide. The date of manufacturing indicated was 06/09/2011 and the date of expiry was 05/09/2013. After the samples were taken they were sent to the Insecticides Laboratory on 23/08/2012. The report of the Analyst was received on 13/09/2012 indicating that the sample failed to conform to specifications. This report was sent to the accused Nos.1 and 4 on 19/10/2012 and to the present applicant on 12/04/2013. A reply given by the Manufacturer was not found satisfactory. A proposal was then sent for obtaining consent which was received on 15/01/2015. The complaint was filed on 23/04/2015.
8. On reading of aforesaid complaint it can be seen that the sample of the insecticide was taken on 21/08/2012. By the date the proposal was sent for obtaining consent on 25/03/2014, the validity of that insecticide expired on 05/09/2013. The complaint was filed much later on 23/04/2015. Under provisions of Section 24(3) of the said Act, the report signed by Insecticide Analyst is evidence of the facts stated therein and it is conclusive unless the person from whom the sample was taken has within ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:12:32 ::: APL-J-565-16 7/10 twenty eight days of receiving the copy of the report notified in writing to the Insecticide Inspector or the Court before which the proceedings are pending that he intends to adduce evidence controverting such report. In National Organic Chemical Industries Ltd. (supra) the aforesaid provisions of the said Act were considered and in paragraphs 5 and 6 it was observed thus :
" 5. ..... Thus, it would be clear that after the inspection and seizure of the insecticide, the Insecticide Inspector shall divide the insecticide into three portions, as contemplated and in the manner prescribed and deliver one such sample to the manufacturer or person from whom insecticide was taken. One should be sent to the Insecticide Analyst. After the receipt of the report, the accused would be notified of the result of the report. Thereafter, the complaint is required to be lodged in the Court. At that stage, two options are open to the accused. The accused is entitled to have one copy of the sample entrusted to him to have it notified to the Court for proving to be contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the Court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under sub-section (3) of Section 24. The other option is, after the complaint is laid in the Court, the copy of the sample that is lodged with the Court by the Insecticides Inspector, would be requested to be sent by the Court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, consent and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court.
6. Unfortunately, in this case, the appellant did not adopt the course as was required under the Act. Of course, the respondent, without availing of the ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:12:32 ::: APL-J-565-16 8/10 remedy of report by Director of CIL, may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail the statutory defence. The appellant had not given third sample to the respondent. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him. ... " In Unique Farmaid P. Ltd. and ors. (supra) it has been observed that for the purposes of safeguarding the right of the accused to have the sample tested from the Central Insecticides Laboratory it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In said case it was found that by the time the accused were asked to appear before the Court, the expiry period of the insecticide was already over and hence sending of the sample to the Central Insecticides Laboratory was of no consequence. It was thus held that as the proceedings had been filed after the shelf life of the sample had expired, no purpose would have been served informing the Court of the intention to controvert the sample. The aforesaid decision has been followed by learned Single Judge in United Phosphorus Ltd. (supra)
9. Thus from the aforesaid law it is clear that for a meaningful exercise of the statutory right of having the sample tested from the Central Insecticides Laboratory, the complaint has to be filed expeditiously and at ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:12:32 ::: APL-J-565-16 9/10 least prior to the expiry of the shelf life of the insecticides. In absence of doing so, the statutory right conferred under Section 24(3) of the said Act is lost resulting in an irreversible situation. In that view of the matter, continuation of the proceedings before the Court would result in wastage of judicial time.
In the present case on a mere perusal of the complaint, it can be found that according to complainant the shelf life of insecticide was till 05/09/2013 and the complaint was filed on 23/04/2015. The statutory right under Section 24(3) of the said Act therefore could not have been exercised by the applicant. On this count alone therefore the complaint is liable to be quashed.
In the light of these facts, the contention that the applicant ought to have first approached the Sessions Court for challenging the impugned order loses its force. When on plain reading of the complaint itself the aforesaid facts are obvious, jurisdiction under Section 482 of the Code can always be exercised to prevent the abuse of process of law. I find the present case a fit one to exercise such jurisdiction to put the proceedings to an end.
10. In view of aforesaid, the order dated 22/04/2015 passed by the learned Judicial Magistrate, First Class, Bhiwapur in Summary Criminal Case No.57/2015 is set aside. The complaint stands dismissed. ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:12:32 :::
APL-J-565-16 10/10 The criminal application is allowed in aforesaid terms. No order as to costs.
JUDGE Asmita ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:12:32 :::