Bombay High Court
M/S Kiplest India Limited vs State Of Maha & Anr on 20 December, 2016
Bench: Z.A. Haq
1 Cr.Apln. 971.2004 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 971 OF 2004
M/s Kilpest India Limited
7-C, Industrial Area, .... APPLICANT/
Govindpura, Bhopal. [ORI.ACCUSED NO. 2]
ig VERSUS
1. The State of Maharashtra .... RESPONDENT
2. Malikarjun Vyankatrao Karadkhelkar
Insecticide Inspector and
Agricultural Officer,
Office of the Block
Development Officer,
Panhayat Samiti, Nilanga, .... RESP.NO. 2 /
Dist. Latur. [ORIGINAL COMPLAINANT]
.............................
None for Applicant.
Mr. K.S.Hoke Patil, A.P.P. for R - 1.
Mr. V.D.Hon, Senior Advocate for R - 2.
..............................
CORAM : Z.A.HAQ, J.
DATE OF JUDGMENT : 14th DECEMBER, 2016
.............................
2 Cr.Apln. 971.2004 - [J]
ORAL JUDGMENT :
01. None for the Applicant.
02. Heard Mr. V.D.Hon, learned Senior
Advocate assisted by Mr. Ajinkya Deshmukh, learned
Advocate for the non-applicant No. 2 and Mr.
K.S.Hoke Patil, learned A.P.P. for the non-applicant
No. 1 - State.
03. The Applicant - Company has approached
this Court with the prayer that the proceedings of STC
No. 5829/2002 initiated on the complaint of non-
applicant No. 2 for the offences punishable u/ss 3 (k)
(i), 17 (i) (a), 18 (1) (c) read with 29 (i) (a) and 29
(3) (i) of the Insecticides Act, 1968 be quashed. The
contention on behalf of the applicant is that the
mandatory provisions of Section 24 of the Insecticides
Act are not complied with and, therefore, the
prosecution can not be continued. Section 24 of the
Insecticides Act reads as under :
3 Cr.Apln. 971.2004 - [J]
" Report of Insecticide Analyst -
(1) The Insecticide Analyst to whom
a sample of any insecticide has been
submitted for test or analysis under
sub-section (6) of section 22, shall,
within a period of [thirty] days, deliver
to the Insecticide Inspector submitting
ig it a signed report in duplicate in the
prescribed form.
(2) The Insecticide Inspector on
receipt thereof shall deliver one copy
of the report to the person from whom
the sample was taken and shall retain
the other copy for use in any
prosecution in respect of the sample.
(3) Any document purporting to be a
report signed by an Insecticide Analyst
shall be evidence of the facts stated
therein, and such evidence shall be
conclusive unless the person from
4 Cr.Apln. 971.2004 - [J]
whom the sample was taken has
within twenty-eight days of the receipt
of a copy of the report notified in
writing the Insecticide Inspector or the
Court before which any proceedings in
respect of the sample are pending that
he intends to adduce evidence in
ig controversion of the report.
(4) Unless the sample has already
been tested or analysed in the Central
Insecticides Laboratory, where a
person has under sub-section (3)
notified his intention of adducing
evidence in controversion of the
Insecticide Analyst's report, the Court
may, of its own motion or in its
discretion at the request either of the
complainant or of the accused, cause
the sample of the insecticide produced
before the Magistrate under sub-
section (6) of section 22 to be sent for
5 Cr.Apln. 971.2004 - [J]
test or analysis to the said laboratory,
[which shall, within a period of thirty
days, which shall make the test or
analysis] and report in writing signed
by, or under the authority of, the
Director of the Central Insecticides
Laboratory the result thereof, and such
ig report shall be conclusive evidence of
the facts stated therein.
(5) The cost of a test or analysis
made by the Central Insecticides
Laboratory under sub-section (4) shall
be paid by the complainant or the
accused, as the Court shall direct. "
04. According to the complainant, the
Insecticide Inspector conferred with the powers u/s
21 of the Insecticides Act visited the insecticide selling
point of M/s Shriram Fertilizers, Aurad [Shahjani],
Taluka Nilanga, District Latur on 29/09/1998 and
during the course of inspection of the stock of
6 Cr.Apln. 971.2004 - [J]
insecticides, 'ENDOSULPHAN 35% EC' manufactured
by the applicant - Company was found in stock for
sale. As per the procedure prescribed u/s 22 (5) and
(6) of the Insecticides Act, necessary intimation was
given to accused No. 3 - Proprietor of M/s Shriram
Fertilizers and sample was sent to Testing Laboratory,
Pune as per the procedure under Rule 34 of the
Insecticides ig Rules, 1971. According to the
complainant, the Insecticide Testing Laboratory, Pune
reported the result of sample of the above referred
insecticide by the report dated 19/12/1998 and it was
found that the sample was mis-branded and
contained only 11.88% 'ENDOSULPHAN 35% EC'.
With these accusations, the complaint is filed seeking
prosecution and conviction of the accused.
05. The applicant - Company has raised a
ground that notice dated 19/02/1999 was issued in
compliance with the requirements of sub-section (3)
of Section 24 of the Insecticides Act, however, the
copy of report of Insecticide Testing Laboratory was
not supplied. The applicant has placed on record
7 Cr.Apln. 971.2004 - [J]
[Exh. D at page No. 22] copy of communication sent
by it to the Insecticide Inspector on 15/03/1999
stating that test result declared by the Testing
Laboratory was not given, name of the Testing
Laboratory was not mentioned and the Test Report
was not enclosed with the show cause notice. In the
above-mentioned communication, the applicant
requested that the Test report and other information
be supplied as the applicant intended to adduce
evidence in controversion of the report u/s 24 (4) of
the Insecticides Act. The non-applicant No. 2 has not
denied the fact alleged by the applicant that it gave
the reply dated 15/03/1999. The case of the
applicant is that as the non-applicant No. 2 failed to
comply with the request made in the communication
dated 15/03/1999, the prosecution initiated against it
in 2002 is unsustainable for non compliance of
mandate of provisions of Section 24 of the
Insecticides Act.
06. It is well settled that the provisions of
Section 24 of the said Act are mandatory and confer a
8 Cr.Apln. 971.2004 - [J]
valuable right on the accused to defend himself by
getting sample tested by the Central Insecticide
Laboratory and if the accused is deprived of this
valuable defence statutorily available to him, the
complaint is liable to be quashed. In support of the
above proposition, the Judgment given in the case of
Northern Minerals Limited Vs. Rajasthan
Government & Anr. reported in 2016 (5) Scale
617 and the Judgment given in the case of State of
Punjab Vs. National Organic Chemical
Industries Ltd. 1996 (11) SCC 613 can be relied
upon.
07. Though the learned Senior Advocate for
the non-applicant No. 2 argued that the complaint can
not be quashed at the thresh-hold, he has not been
able to controvert the settled legal position laid down
in the above referred Judgments.
08. In view of the above, the Criminal
Application has to be allowed.
9 Cr.Apln. 971.2004 - [J]
Hence, the following order :
The proceedings of STC No. 5829/2002
initiated in the complaint filed by the non-
applicant No. 2 and pending before the
Chief Judicial Magistrate, Latur are
quashed.
ig After going through the matter, I found
that the non-applicant No. 2 has failed to discharge
the statutory obligation to comply with the
mandate of Section 24 of the Insecticides Act. The
crime for which the prosecution was initiated
against the applicant affects large number of
people and most of them from lower income
group. As the complaint is filed without complying
with the mandate of Section 24 of the Insecticides Act
and there is no explanation on the record for this
lapse, I feel it appropriate to impose costs of
` 50,000/- [Rupees Fifty Thousand] on the non-
applicant No. 2. Out of the amount of costs
that will be deposited by the non-applicant No. 2,
10 Cr.Apln. 971.2004 - [J]
` 25,000/- [Rupees Twenty Five Thousand] shall be
paid to the applicant - Company and ` 25,000/-
[ Rupees Twenty Five Thousand] shall be deposited
with the non-applicant No. 1 - State of
Maharashtra.
The facts on record create an impression
that the non-applicant No. 2, who is impleaded
ig by
name, has acted in a calculated manner and in
collusion with the accused to frustrate the
prosecution. I had put the learned Senior Advocate
appearing for the non-applicant No. 2 on notice
that I intend to direct the departmental enquiry
against the non-applicant No. 2. The learned Senior
Advocate submitted that the non-applicant No. 2 is
presently not in touch with him and requested for
some time.
10. List the Criminal Application for further
orders on this point on 20/12/2016.
[Z.A.HAQ, J.]
11 Cr.Apln. 971.2004 - [J]
11. In response to the notice given to the non-
applicant no.02 through his Advocate, to show cause
why directions for conducting departmental enquiry
against him should not be given, the learned Senior
Advocate has submitted that the non-applicant cannot
be held responsible for any lapse and all steps were
taken in the matter by Shri I.N. Mogle, who was
working as Insecticide Inspector and Agriculture
Officer during the relevant period. It is pointed out
that the sample was collected by Shri I.N. Mogle and
the proposal to obtain consent as per Section 31 of
the Insecticides Act, 1968 was also sent by Shri I.N.
Mogle. It is submitted that office of Commissioner of
Agriculture, Maharashtra State, Pune, issued the
consent order on 14th of March, 2002 and at that
time, the non-applicant no.02 was posted as
Insecticide Inspector in the office of Block
Development Officer, Panchayat Samiti, Nilanga, and
therefore, he filed the complaint immediately in April,
2002.
It is argued that the above facts show that the
12 Cr.Apln. 971.2004 - [J]
non-applicant no.02 is not at fault and he cannot be
made liable to pay the costs and directions for
departmental enquiry against him are also not
necessary.
12. The conclusions recorded in the judgment
given on 14th December, 2016 are to the effect that
the complaint under Sections 3 (k) (i), 17 (i) (a), 18
(1) (c) read with Sections 29 (i) (a) and 29 (3) (i) of
the Insecticides Act, 1968 was filed without complying
with the mandatory provisions of Section 24 of the
Insecticides Act, 1968. The non-applicant no.02
being the responsible officer exercising the powers
conferred by the provisions of the Insecticides Act,
1968, is supposed to know the consequences of filing
complaint without complying with the mandate of
Section 24 of the Insecticides Act, 1968. Though at
the first blush, the submissions made on behalf of the
non-applicant no.02 that he is not responsible for the
non-compliance of mandate of Section 24 of the
Insecticides Act, 1968 appear to be appealing, there
is no explanation on behalf of the non-applicant no.02
13 Cr.Apln. 971.2004 - [J]
for filing the complaint of which fate was known to
the non-applicant no.02.
In these facts, the order directing the non-
applicant no.02 to pay the amount of costs of
` 50,000/- is not required to be recalled, however,
further directions are required to be given as
follows :-
(a) The
ig Secretary, Department of Agriculture,
Government of Maharashtra, shall conduct an enquiry
to find out who is at fault for non-compliance of the
mandate of Section 24 of the Insecticides Act, 1968
and the delay in grant of consent as per Section 31 of
the Insecticides Act, 1968, because of which the shelf
life of the sample collected had expired and the
prosecution launched against the accused vide S.T.C.
No. 5829/2002 is frustrated.
(b) If in the enquiry it is found that the non-
applicant no.02 is not at fault and some other officer /
officers are at fault, the amount of ` 50,000/- which
is directed to be paid by the non-applicant no.02 shall
14 Cr.Apln. 971.2004 - [J]
be recovered from the erring officer/officers and shall
be paid to the non-applicant no.02.
(c) Departmental enquiry for dereliction of duty
shall also be conducted against the officer/officers
who are found to be responsible for the delay in
taking action.
(d)
The action taken report shall be filed before this
Court till 30th March, 2017.
The office of Public Prosecutor shall send the
copy of this order to the Secretary, Department of
Agriculture, Government of Maharashtra, Mantralaya,
Mumbai.
13. The Criminal Application is disposed in the
above terms.
[Z.A.HAQ, J.]
KNP/Cr.Apln. 971.2004 - [J]
