M/S Rallis India Ltd & Anr vs State Of Mah & Anr
2017 Latest Caselaw 1576 Bom

                                   1          Application 1145 of 2005

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                  Criminal Application No. 1145 of 2005


     1)      M/s. Rallis India Limited,
             Appejay House,
             Dinshaw Vachha Road,
             Churchgate Bombay - 400 001.

     2)      L. Shankar Raman,
             Factory Manager,
             Rallis India Ltd.
             Rallis House, 21 D.S. Marg,
             Mumbai - 400 001.                        ..    Applicants.

                      Versus

     1)      The State of Maharashtra,
             Through P.S.I.,
             Police Station Sillod,
             District Aurangabad.

     2)      Insecticide Inspector,
             (Quality Control)
             State Department of Aurangabad,
              Office of Agriculture Development
             Zilla Parishad, Aurangabad.        .. Respondents.

                                   ----

     Shri. B.S. Bawiskar, Advocate, holding for Shri. V.D.
     Sonawane, Advocate, for applicants.

     Shri. R.V. Dasalkar, Additional Public Prosecutor, for
     respondent No.1.
                                 ----

                               Coram: T.V. NALAWADE, J.

                               Date:       10 April 2017




::: Uploaded on - 19/04/2017                ::: Downloaded on - 27/08/2017 22:43:15 :::
                                       2       Application 1145 of 2005

     JUDGMENT:

1) The proceeding is filed under Section 482 of

the Code of Criminal Procedure and also under Articles

226 and 227 of the Constitution of India to challenge the

order made by the learned Judicial Magistrate, First Class,

Sillod dated 28-6-2002 by which the Judicial Magistrate

has refused to drop the proceeding of Criminal Case

No.479/1993 pending before him. This proceeding is filed

under sections 29(1)(a), 18(1)(c) of the Insecticides Act,

1966 (hereinafter referred to as "the Act"). The order of

the Judicial Magistrate was challenged by filing Criminal

Revision No.151/2002 and the revision is dismissed. The

said decision is also under challenge and further relief of

quashing of the proceeding itself is claimed. Only one

ground is raised that in view of late filing of the complaint

in the Court, the petitioner accused has lost the right

given under section 24(3) of the Act to get second sample

tested through the Central Insecticides Laboratory. Both

the sides are heard.

                                            3       Application 1145 of 2005

     2)               The complaint is filed for        offence punishable

under sections 29(1)(a), 18(1)(c) of the Act. Accused No.1

is the manufacturer of insecticide (Dimethyl 30% H.C.)

(Rogar 30). In this area ordinarily ladies who commit

suicide use this insecticide as poison.

3) On 12-3-1992 the Insecticide Inspector

collected sample of this insecticide from retailer, accused

No.3 and sent it for analysis on 13-3-1992. The Insecticide

Analyst gave report on 8-5-1992 to the effect that the

sample failed and it was misbranded having higher

percentage than the prescribed percentage (misbranded

under section 3(k)(i) of the Act).

4) In the application filed before the Judicial

Magistrate present applicants had contended that the

expiry date of the insecticide was October 1992 and as the

complaint was filed on 8-2-1993 after the expiry date,

there was no opportunity to the accused to get second

sample tested as provided under section 24(3) of the Act.

On this ground prayer was made to drop the proceeding.

It appears that first time during argument before the

4 Application 1145 of 2005

Magistrate it was submitted that along with the letter

dated 24-7-1992 report of the Analyst was supplied and

they had informed the Inspector their intention to adduce

evidence in controversion of the report of the Insecticide

Analyst. The learned Judicial Magistrate and the learned

Judge of the Sessions Court have considered this defence

and it is observed that the right ought to have been

exercised within 28 days as mentioned in section 24(3) of

the Act and the period needs to be counted from the date

of receipt of the report and as the right was not exercised

within the prescribed period, no relief can be granted to

the present petitioners. It is observed that opportunity

needs to be given to lead evidence to show that the report

was handed over on 24-7-1992 to the complainant side. As

per the record, the reply was sent by the accused, present

petitioners, after 31 days and in that reply intention was

expressed that they wanted to controvert the report of the

Insecticide Analyst.

5) The record and the submission show that no

other ground was raised before the Courts below. This

Court has carefully gone through the scheme of the Act.

5 Application 1145 of 2005

The provisions of the Act do not show that there is

prohibition to file complaint after the expiry period of the

insecticide. On the other hand, provision of section 24(3),

(4) and (5) of the Act shows that right given to the

accused is subject to these provisions and they are as

under :-

"24. Report of Insecticide Analyst.-- (1 ) .....

(2) .....

(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 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 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 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 report shall be conclusive evidence of the facts stated therein.

6 Application 1145 of 2005

(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."

6) Wording of the provision of section 24(3) shows

that step for sending second sample needs to be taken by

the accused and that step needs to be taken within 28

days of the receipt of copy of report of Insecticide Analyst.

Rule 25 of the Rules framed under the Act is also relevant

in that regard. Provisions of section 24 (3) of the Act and

the rules from Chapter VI of the Insecticides Rules, 1971

(with Schedule) show that fees for testing are fixed when

sample is required be sent to Central Insecticides

Laboratory and the fees need to be paid by accused in

such a case. Thus, it is necessary for the accused to give

written application or intimation to the Inspector and the

fees also need to be paid by the accused to show that he

really wants to exercise such right. If such procedure is

not followed, accused cannot say that he has lost the right

to get tested second sample through the Central

Insecticides Laboratory. The record and the submissions

made in the present matter do not show that the

aforesaid procedure was followed by the accused. The

7 Application 1145 of 2005

Statement of Objects and Reasons of the Act show that

percentage of the substance which acts as poison cannot

be allowed to be increased to protect the life. These

provisions in that regard are mandatory in nature. The

Courts cannot take such matters lightly. If right to get

second sample tested through Central Insecticides

Laboratory is not exercised, in view of the aforesaid

provisions, the report of the Insecticide Analyst can be

used as evidence. In the present matter, this Court has no

hesitation to hold that right was not exercised by the

accused within 28 days from the date of receipt of the

report of Government Analyst and so it is not open to the

accused to contend that the accused has lost the right to

get second sample tested through the Central Insecticides

Laboratory. In view of these circumstances this Court

holds that the Courts below have not committed any error

in not giving the relief of dropping the proceed or setting

aside the proceedings. In the result, the application is

dismissed. Rule is discharged. Interim relief is vacated.

Sd/-

(T.V. NALAWADE, J.)

rsl