Bombay High Court
M/S United Phosphorus Ltd vs The State Of Maharashtra on 15 January, 2009
Bench: V.R. Kingaonkar
(1)
REPORTED
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO.145 OF 2007.
1. M/s United Phosphorus Ltd.,
167, Dr.A.B.Road, Worli,
Mumbai-18.
2. Shri Sunil Vaidhya,
Age 56 years, Occ.Service with
United Phosporous Ltd., 4,
Kasktker Bhavan, Swarajpeth,
Behind Carmel Sehad,
Akola 444 001 (M.S.)
R/o Akola.
3. M/s United Phosphorus Limited,
4, Kasktker Bhavan,
Swarajpeth, Behind Carmel
Sehad, Akola-444 001 (M.S.) ... Petitioners.
Versus
1. The State of Maharashtra.
2. Insecticides Inspector and ] Respondent Nos.
Inspector, (Quality Control) ] 2 to 5 deleted
Department of Agriculture, ] as per Court's
(M.S.) C/o District S.A.O., ] order dated
Office of ZP, Aurangabad. ] 17.6.2008.
Represented by ]
Vasant Shrirampant Vyapari, ]
Age 40 years, Occ.Service, ]
R/o as above. ]
]
3. M/s Lokmat Seeds, ]
Nawabpura, New Mondha Road, ]
Aurangabad. ]
Represented by R.No.2. ]
]
4. Shri Sharad Harnarayan Ladha, ]
Age 35 years, Occ.Business, ]
M/s Lokmat Seeds, ]
Nawabpura, New Mondha Road, ]
Aurangabad. ]
]
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(2)
5. Dr.RN Patel, ]
Ex-Employee of ]
M/s United Phosphorus Limited, ]
Plot No.4, GIDC, Vapi, ]
Gujarath State, ]
Present address not known. ... Respondents.
...
Mr.R.R.Mantri, advocate for the petitioners.
Mrs.S.S.Autade, A.P.P. for the State.
...
CORAM : V.R.KINGAONKAR,J.
Date : 15.01.2009
ORAL JUDGMENT
1. By
this petition, the petitioners
challenge the order rendered by learned Judicial
Magistrate (F.C.), Aurangabad on their application
for discharge in Summary Criminal Case No.3074/1998
and pray for quashing of the said Criminal
proceedings.
2. Indisputably, on 13.6.1997, the
Insecticide Inspector - Mr.Vasant Vyapari, visited
shop of the petitioners. The petitioners are dealing
in business of manufacturing and selling of
insecticides. The Insecticide Inspector collected
samples of the insecticide called "Phorate 10%"
bearing batch No.S-486. He served a notice on the
petitioners to the effect that the samples were drawn
for the purpose of analysis in order to ascertain the
quality of the same. The required procedure was
followed and one of the sample was sent to the
Insecticide Testing Laboratory, Aurangabad. The
laboratory gave report dated 13.6.1997 to the effect
that the sample of insecticide was substandard and
misbranded. A copy of the report was sent to the
petitioners and they were called upon to explain
their stand. They asserted that they had not
committed any offence and the sample was in
conformity with the standards required under the law.
They
also relied upon certificate of analysis issued
by their own laboratory. The necessary sanction was
accorded as required U/s 31(1) of the Insecticides
Act,1968, on 1.4.1998 by the Commissioner of
Agriculture. The Insecticide Inspector lodged
complaint before the learned Judicial Magistrate,
Aurangabad on 24.4.1998.
3. There is no dispute about the fact that
the shelf-life of the insecticide in question was up
till end of February 1998. Admittedly, the complaint
was lodged by the Insecticide Inspector much after
the said expiry date of the insecticide samples. The
sanction for the prosecution was also issued after
the shelf-life of the insecticide was over. It is
undisputed that the report of the analysis conducted
by the Insecticide Testing Laboratory was sent to the
petitioners vide show cause notice dated 28.7.1997
and reply thereto was given by them on 20.8.1997. In
the reply, the petitioners made it clear that they
asked their Research and Development Scientist to
analyse the counter sample of the same batch of the
insecticide. They also stated that the internal
testing confirmed the fact that the insecticide of
the same batch was in conformity with the ISI
specifications in all respects. In support of such
contention,
they also forwarded copy of the
certificate of analysis issued by the concerned R & D
Scientist. In other words, they furnished evidence,
whereby they desired to dispute correctness of the
report of the Insecticide Testing Laboratory,
Aurangabad, which was served on them.
4. The petitioners asserted that their right
to challenge the report was frustrated due to filing
of the complaint after the shelf life of the
insecticide. Hence, they sought discharge from the
Criminal case. The learned Judicial Magistrate,
rejected their contention.
5. Heard Mr.R.R.Mantri, learned advocate for
the petitioners and Smt.S.S.Autade, learned A.P.P.
for the State.
6. At the threshold, it is significant to
note that the genesis of the complaint is that the
sample of the insecticide was found to be misbranded
under provisions of subclause (i) of clause (k) of
Section 3 of the Insecticides Act, 1968. Subclause
(k) reads as follows :
. "(k) 'Misbranded' - an
insecticide
ig shall be deemed to be
misbranded -
(i) if its label contains any
statement, design or graphic
representation relating thereto which is
false or misleading in any material
particular, or if its package is
otherwise deceptive in respect of its
contents; or
(ii) x x x x"
The report of Insecticide Testing Laboratory reveals
that the sample was not in conformity with the
relevant specifications in the context of A.I.
contents. It was, therefore, treated as misbranded.
7. The law makes it mandatory that the
Insecticide Inspector shall deliver a copy of the
report to the person from whom the sample was taken.
The relevant provision contained in Section 24(3) of
the Insecticides Act, 1968, would make it amply clear
that the report signed by the Insecticide Analyst
shall be the conclusive evidence of the facts stated
therein. There is deeming effect about its conclusive
nature
unless the same is disputed within 28 (twenty
eight) days of the receipt of the copy of the report
by the concerned person from whom the sample was
collected, or the same is challenged after filing of
the complaint and the concerned person would express
intention to adduce evidence to show inaccuracy of the
report. A plain reading of subclause (3) of Section
24 would make it manifest that the concerned person
from whom the sample is collected, is not under
obligation to immediately ask for sending of the
another sample to the Director of the Central
Insecticide Laboratory. What is required under the
law is that he shall express intention to adduce
evidence in contravention of the report. By filing
their reply dated 20.8.1997, within the stipulated
period of 28 (twenty eight) days, the petitioners
expressed intention to adduce evidence in
contravention of the report. Nay, they filed copy of
the internal report of analysis. It is true that they
could have asked the Insecticide Inspector to send
another copy to the Central Insecticide Laboratory.
However, such choice was available to them under
subclause (4) of Section 24 of the Insecticides Act,
1968, even after filing of the complaint in the Court.
8. The interpretation of Section 25 of the
Drugs and
Cosmetics Act (23 of 1940) was subject
matter of consideration in "Ramanbhai B. Patel and
others Vs. S.R.Sharma, Drug Inspector and another"
1997(2) Mh.L.J.629. A Single Bench of this Court held
that right of the accused got frustrated when the
complaint was lodged after the expiry period of the
drug. In "Venkaiah Chowdary Nannapaneni and others
Vs. State of Maharashtra" 2003 ALL MR (Cri.) 758,
this Court held that right given to the accused is
available to him only after the complaint is laid. It
has been observed that even if the accused does not
disclose his intention to controvert the report, still
the right U/s 25(4) of the Drugs and Cosmetics Act,
does not get obliterated. While taking such a view,
this Court relied on judgments of the Apex Court in
"State of Punjab Vs. National Organic Chemical Ltd."
1996 (4) Crimes 169 (S.C.) and "State of Haryana Vs.
Unique Farmaid P. Ltd. and others" JT 1999 (8) SC
162. In "State of Punjab Vs. National Organic
Chemical Ltd. (supra), the Apex Court held that the
accused were deprived of their valuable right to have
the sample tested from the Central Insecticide
Laboratory as permissible under subclause (4) of
Section 24 of the Insecticides Act, 1968. Considering
the fact that by the time the matter reached the
Court, the shelf life of the sample had already
expired,
the Supreme Court endorsed view of the High
Court that the report of the Insecticide Analyst was
not conclusive. Thus, decision of the High Court for
quashing the proceedings was upheld.
9. The provision of Section 24 of the
Insecticides Act,1968 and Section 25 of the Drugs and
Cosmetics Act, are substantially pari materia. The
right of the petitioners to challenge the report of
the Insecticide Laboratory is frustrated due to filing
of the complaint after the shelf life of the
insecticide was over. The continuation of the
Criminal proceeding in such a case would be wastage of
judicial time and would amount to abuse of the process
of Court. There is no point in continuing the
Criminal proceeding when the outcome thereof would be
of no avail to the prosecution. The right of the
petitioners was made nugatory due to the delay in
filing of the complaint. The complaint ought to have
been filed before the shelf life of the insecticide
was over. The present case is, therefore, fit in
which the Criminal proceedings need be quashed. In
this view of the matter, the petition is allowed. The
impugned order is quashed. The Criminal case bearing
Summary Criminal Case No.3074/1998, instituted against
the petitioners is quashed. The bail bonds of the
petitioners be deemed as cancelled.
(V.R.KINGAONKAR,J.)
Authenticated Copy
(Pvt.Secy. to Hon'ble Judge)
asp/Crwp14507
