Delhi High Court

M/S. Godrej Consumer Products Limited vs Licensing Officer (Insecticide) on 14 December, 2023

Author: Sudhir Kumar Jain

Bench: Sudhir Kumar Jain

                          $~

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                                Reserved on: September 20, 2023
                                                             Decided on: December 14, 2023
                          +      CRL.M.C. 3528/2019

                                 M/S. GODREJ CONSUMER
                                 PRODUCTS LIMITED                               ..... Petitioner
                                                    Through:     Mr. Rajeev K. Virmani,
                                                                 Senior     Advocate    with
                                                                 Mr.    Vaibhav    Bhadana,
                                                                 Ms. Deveshi Behl and
                                                                 Mr.     Hrithik     Sharma,
                                                                 Advocates.

                                                    V

                                 LICENSING OFFICER (INSECTICIDE) ..... Respondent

                                                    Through:     Mr.    Yudhvir       Singh
                                                                 Chauhan, APP for State.


                                 CORAM

                                 HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

                          JUDGMENT

1. The present petition is filed by the petitioner under section 482

of the Code of Criminal Procedure, 1973 (hereinafter referred to as

"the Code") for quashing the summoning order dated 11.12.2017

Signing Date:21.12.2023 CRL.M.C. 3528/2019 Page 1

and complaint bearing CC no. 13384/2017 titled as Licensing

Officer (Insecticides) V M/s. Rajesh Enterprises and another for

the offence punishable under section 29 of the Insecticides Act, 1968

(hereinafter referred to as "the Act") along with consequential

proceedings which are stated to be pending in the court of Dr.

Sumedh Kumar Sethi, Chief Metropolitan Magistrate, South-West

District, Dwarka Courts, Delhi/successor court (hereinafter referred

to as "the trial court").

2. The respondent/the complainant (hereinafter referred to as

"the respondent") filed a complaint titled as Licensing Officer V

M/s Rajesh Enterprises & another bearing no CC No. 13384/17

under section 200 of the Code pertaining to the offence under section

29(1)(a) of the Act and Insecticide Rules, 1971 framed thereunder

through Insecticide Inspector against M/S. Godrej Consumer

Products Ltd/the petitioner/the accused no. 2 (hereinafter referred to

as "the petitioner") and M/S Rajesh Enterprises, a proprietorship

firm through its Proprietor Mukesh Kumar Mittal/the accused no. 1

on allegations that accused no.l was selling/storing misbranded

Transallethrin 0.25% W/w batch no. FF16-007 Insecticide

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(hereinafter referred to as "the product in question") being

manufactured by the petitioner.

2.1 A.K. Gangwar, Notified Insecticide Inspector, Development

Department, Govt. of Delhi (hereinafter referred to as "the

Insecticide Inspector") on 03.11.2016visited the Godown/sale

counter of the accused no. l situated at 152-A, Todarmal Colony,

Najafgarh, New Delhi-110043for inspection of insecticides and

records. The Insecticide Inspector purchased the product in question

having manufacturing date as September, 2016 and expiry date as

August, 2018 vide Bill/Retail Invoice dated 03.11.2016 from the

premises of the accused no. l and also filled Form XX (under Rule

33). The samples were sealed in containers in presence of the

authorized representative/proprietor of the accused no. l. One sealed

container out of three containers was handed over to the accused no.l,

one container was retained in the office of the complainant and third

container was sent for testing to the Insecticide Analyst i.e. Incharge,

Centralized Coding Cell RPTL C/o Plant Protection Adviser (PPA),

Directorate of Plant Protection, Quarantine & Storage, NH-IV,

Faridabad (Haryana), Govt. of India vide Form XXI (Rule 34) and

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Memo dated 04.11.2016. The respondent received the Report bearing

no 001848 from the Coding Officer, Directorate of Plant Protection,

Quarantine and Storage, NH-IV, Faridabad (Haryana) along with the

Report dated 10.01.2017 from the Regional Pesticide Testing

Laboratory, Bays No.43-45, Sector 31-A, Chandigarh (U.T.)-160030

with result "The sample does not conform to the relevant IS

Specification in the test conducted".

2.2 The result obtained from R.P.T.L. Chandigarh was intimated to

the accused no. l and the petitioner vide Memorandum dated

24.03.2017 along with copy of the Report dated 10.07.2017 with the

directions to furnish the justification/reply within 28 days from the

date of receipt of Memo as to why they were selling, manufacturing

& stocking substandard/misbranded product in question. The accused

no. l filed reply vide letter dated 12.04.2017 to the Memorandum

dated 24.03.2017 wherein raised false and frivolous pleas but did not

request for re-testing of the sample. The petitioner also filed false and

frivolous reply dated 17.04.2017 to the Memorandum dated

24.03.2017 wherein denied the Report dated 10.01.2017.

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2.3 The respondent issued another Memorandum dated 01.05.2017

to the replies dated 12.04.2017 and 17.04.2017 received from the

accused no. l and the petitioner. The respondent further directed the

accused no. 1 and the petitioner to furnish their justification within 10

days from the receipt of Memorandum dated 01.05.2017 and in case

they fail to furnish the justification within stipulated period then it

will be presumed that they don't have nothing to say and the legal

proceedings would be initiated against them in accordance of law.

The accused no. 1 with regard to Memorandum dated 01.05.2017

submitted false and frivolous reply dated 09.05.2017 and raised same

contentions which were taken in reply dated 12.04.2017. The

petitioner in response to Memorandum dated 01.05.2017 sent reply

dated 09.05.2017 based on false and frivolous contentions and also

raised contentions which were taken in reply dated 17.04.2017. The

accused no. 1 and the petitioner did not make request for re-testing of

sample in question and also did not deposit requisite fee. The replies

filed by the accused no. 1 and the petitioner were not found

satisfactory and are liable to be summoned, tried and punished under

Section 29 of the Act and the Insecticide Rules, 1971 for deliberately

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selling, stocking, marketing and manufacturing the misbranded

insecticides. It was prayed that the accused no 1 and the petitioner be

summoned, tried and punished for having committed offence under

section 29(1)(a) read with section 3(k) of the Insecticide Act, 1968.

3. The court of Dr. Sumedh Kumar Sethi vide order dated

11.12.2017 summoned the accused no. 1 and the petitioner by

observing that offence under section 29 of the Act has been

committed by the accused no. 1 and the petitioner as the content of

the insecticide Transallethrin was found to be 0.778% rather than

0.25 % as claimed in the popular 'Hit' brand manufactured by the

petitioner and sold by accused no. 1.

4. The petitioner being aggrieved filed the present petition

wherein stated that present complaint was filed for violation of

offence under section 29(1)(a) of the Act in respect of an insecticide

Transallethrin 0.25% w/w Batch No. FF16-007 i.e. the product in

question stated to be manufactured by the petitioner on allegations

that a sample of Transallethrin 0.25% w/w of Batch No. FF16-00T

i.e. the product in question with manufacturing date as September,

2016 and expiry date as August, 2018 was lifted from the premises

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the accused no. 1 on 03.11.2016 and was sent for analysis on

04.11.2016 and was allegedly found to be misbranded vide Report

dated 10.01.2017 (mentioned as 16.01.2017 in petition). The perusal

of Form XX being the intimation to the seller/the accused no 1

reflects that it was in respect of a sample of an insecticide "d-trans

Allethrin 0.25% w/w" with manufacturing date September, 2016 and

expiry date August, 2018 and drawn on 03.11.2016 and not in respect

of Transallethrin0.25%. The perusal of Report dated 10.01.2017

reflects that the sample of "d-trans Allethrin 0.25%" did not conform

to the relevant IS Specifications in the test conducted and said report

was not in respect of Transallethrin 0.25%.

4.1 The petitioner is carrying business of manufacturing and

marketing fast moving consumer goods including mosquito and bug

repellent spray cans under the brand name "HIT". The petitioner is a

reputed company and is well known for its quality products. The

petitioner challenged the present complaint on grounds that the

petitioner was deprived of its valuable statutory rights under section

24(4) of the Act of getting the second sample tested from the Central

Insecticides Laboratory (CIL). The petitioner was served with

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summons on 17.10.2018 and was provided with a copy of the

complaint on 23.01.2019 and by that time the sample of the

insecticide had already expired in August, 2018 and due to this

reason trial is vitiated. The second sample was not produced before

the trial court with the complaint in breach of the statutory provision

under section 22(6)(ii) of the Act but was rather produced on

25.02.2019 upon an application of the petitioner. The complaint is

also vitiated as it pertains to insecticide "Transallethrin 0.25%"

whereas sample of an insecticide "d-trans Allethrin 0.25% w/w" was

drawn and was accordingly analysed. The Report dated 10.01.2017

stated that the sample of the analysed insecticide "does not conform

to the IS specification in the test conducted" but Bureau of Indian

Standards has not published any IS specifications for "d-trans

Allethrin 0.25% w/w" and no such specification is mentioned in the

Report dated 10.01.2017 which also vitiated Report dated

10.01.2017. The purported analysis is also vitiated as the Report

dated 10.01.2017 was not made within the statutory period of 30 days

as per section 24(1) of the Act as sample was received by the

laboratory on 05.11.2016 and report is dated16.01.2017 which is

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more than 70 days after receipt of sample. The statutory consent

dated 10.07.2017 under section 31(1) of the Act for initiation of

prosecution is invalid due to non-application of mind as it relies on a

purported test report from Regional Pesticides Testing Laboratory

(RPTL), Kanpur and no such test report from RPTL, Kanpur was

placed on record as Report dated 10.01.2017 relied on in present

complaint is prepared by RPTL Chandigarh/Directorate of Plant

Protection, Quarantine & Storage, Faridabad. The petitioner does not

manufacture "Transallethrin 0.25%" and as such cannot be

prosecuted in respect of said insecticide.

4.2 The Report dated 10.01.2017 was vague and ambiguous and

was not containing relevant details to enable the petitioner or accused

no. 1 to rebut the results. The petitioner vide reply dated 17.04.2017

refuted allegations mentioned in the Memorandum dated 24.03.2017

and conclusion of the Report dated 10.01.2017 and requested the

Insecticides Inspector to withdraw the Memorandum and reserved its

right to adduce further evidence. The petitioner also seriously

disputed validity of the Report which did not set out about the

method of puncturing the aerosol products, testing methodology,

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testing apparatus/equipment adopted and used by RPTL conforms to

the Central Insecticide Board's recommendations to test the

insecticide. The petitioner also requested the Insecticide Inspector to

provide the details of testing mechanism adopted by the RPTL as

well as the testing mechanisms prescribed for such purpose. The

accused no 1 also filed its reply to Memorandum vide letter dated

19.04.2017. The petitioner and the accused no 1 notified their

intention of adducing evidence to controvert Report within 28 days

of being notified under cover of the Memorandum as required under

section 24(3) of the Act. The respondent also ignored requests

contained in the reply of the petitioner to provide information as to

the methodology of the test, whether protocols followed were in

compliance with CIL standards, etc. and instead on a total non-

application of mind asked the petitioner to show cause once again by

its Memorandum No. F.I 1(2)/Sample/IT/S/2016-17/34 dated

01.05.2017 which was responded by the petitioner vide letter dated

09.05.2017 wherein petitioner referred earlier reply dated 17.04.2017

to the Memorandum and reiterated intention of the petitioner to

adduce other evidence.

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4.3 A.P. Saini, Licensing Officer (insecticide), Govt. of NCT of

Delhi gave permission/consent for institution of the case vide

Consent Order no F.11(1)/ll()/Sample/PP/2016-17/112 dated

10.07.2017 on basis of test report from Regional Pesticides Testing

Laboratory (RPTL), Kanpur but no such test report from RPTL

Kanpur has been placed on record. It demonstrated complete non-

application of mind on part of the Licensing Officer while passing the

Consent Order.

4.4 The respondent at the time of filing the complaint did not

produce the second sample before the trial court as required under

section 22(6) of the Act. The petitioner also filed an application

under section 22(6)(ii) of the Act for production of the second sample

before the trial court. The Insecticide Inspector on 25.02.2019

produced the second sample before the trial court and the trial court

vide order dated 25.02.2019 observed that the sample had already

expired in August 2018. Accordingly the statutory right provided to

the petitioner under Section 24(4) of the Act regarding testing of

second sample by CIL was taken away due to no fault of the

petitioner. The proceedings before the trial court is abuse of process

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of law and the complaint along with consequential proceedings

cannot continue.

4.5 The petitioner further pleaded that the petitioner was deprived

of valuable statutory rights under Section 24(4) of the Act of getting

second sample tested from the Central Insecticides Laboratory (CIL).

The petitioner reserved its right to adduce further evidence in

controversion of Report dated 10.07.2017. The respondent acted in

breach of the mandatory statutory provision contained in section

22(6)(ii) of the Act as the second sample of the insecticide was not

produced before the trial court with the complaint but was produced

on 25.02.2019 upon an application of the petitioner. The complaint is

also vitiated as it pertains to an insecticide "Transallethrin 0.25%"

whereas sample of insecticide "d-trans Allethrin0.25% w/w" was

drawn and analysed. The prosecution is based on a test report which

stated that the sample of the insecticide analysed "does not conform

to the IS specification in the test conducted" but Bureau of Indian

Standards has not published any IS specifications for "d-trans

Allethrin 0.25% w/w". The analysis is also vitiated as not conducted

and the Report thereof was not been prepared within the statutory

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period of 30 as per section 24 (1) of the Act. The statutory consent

dated 10.07.2017 under section 31(1) of the Act for initiation of

prosecution is invalid being made on non-application of mind. It

relies on a purported test report from Regional Pesticides Testing

Laboratory (RPTL), Kanpur but no such test report from RPTL

Kanpur was placed on record. The Petitioner does not hold any

registration for insecticide Transallethrin 0.25% and does not

manufacture it. It was prayed that the complaint bearing no13384 of

2017 along with consequential proceedings including summoning

order dated 11.12.2017 be quashed.

5. The respondent filed reply to petition wherein denied contents

of the petition. The respondent primarily stated that in the complaint

the name of the sample in question was wrongly mentioned as

"Transallethrin0.25%" instead of "D-TransallethrinO.25%"due

to typographical error. The second sample was produced on the

directions of the Court and the respondent has not breached section

22(6)(ii) of the Act. The petitioner has failed to avail the

opportunity of getting the sample in question re-tested despite two

opportunities.

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6. It is reflecting that the Insecticide Inspector on 03.11.2016

visited the Godown/sale counter of the accused no. l situated at 152-

A, Todarmal Colony, Najafgarh, New Delhi-110043 and purchased

the product in question having manufacturing date as September,

2016 and expiry date as August, 2018 vide Bill/Retail Invoice dated

03.11.2016 and also filled Form XX. The accused no. l was allegedly

found selling/storing misbranded insecticide Transallethrin 0.25%

W/w batch no. FF16- 007 which was stated to be manufactured by

the petitioner. The Insecticide Inspector took three

samples/containers which were sealed in presence of the authorized

representative/proprietor of the accused no l. Out of three sealed

containers, one sealed container was handed over to the accused no l,

one container was retained in the office of the complainant and third

container was sent for testing to the Insecticide Analyst i.e. In charge,

Centralized Coding Cell RPTL C/o Plant Protection Adviser (PPA),

Directorate of Plant Protection, Quarantine & Storage, NH-IV,

Faridabad (Haryana), Govt. of India vide Form XXI and Memo

dated 04.11.2016. The respondent received the Report bearing no

001848 from the Coding Officer, Directorate of Plant Protection,

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Quarantine and Storage, NH-IV, Faridabad (Haryana) along with the

Report dated 10.01.2017 from the Regional Pesticide Testing

Laboratory, Bays No.43-45, Sector 31-A, Chandigarh (U.T.)-160030

with result "The sample does not conform to the relevant IS

Specification in the test conducted" which was intimated to the

petitioner and accused no 1vide Memorandum dated 24.03.2017. In

Report bearing no 001848 and Report dated 10.01.2017, the name of

the Insecticide sample purporting to be contained in the sample was

mentioned as "d-trans allethrin-0.25% Aerosol". The petitioner

claimed that it does not manufacture "Transallethrin 0.25%".The

Report dated 10.01.2017 did not mention IS specifications for "d-

trans Allethrin 0.25% w/w". The petitioner and the accused no 1 were

asked to furnish the justification/reply within 28 days regarding

selling, manufacturing & stocking substandard/misbranded product in

question. The accused no l and the petitioner filed reply vide letter

dated 12.04.2017and dated 17.04.2017 respectively wherein they

reserved their rights to adduce such further evidence which may

deemed to be necessary and to be heard in person. The respondent

issued another Memorandum dated 01.05.2017 to the replies dated

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12.04.2017 and 17.04.2017 submitted by the accused no l and the

petitioner with direction to furnish their justification within 10 days

from the receipt of the Memorandum dated 01.05.2017. The accused

no. 1 and the petitioner with regard to Memorandum dated

01.05.2017 again submitted respective replies dated 09.05.2017. The

accused no 1 and the petitioner did not specifically make request for

re-testing of sample of product in question. However, the petitioner

claimed and alleged violation of its statutory rights under section

24(4) of the Act for not sending second sample to Central

Insecticides Laboratory (CIL) for re-testing. The Licensing Officer

(Insecticide), Govt. of NCT of Delhi vide consent order dated

10.07.2017 accorded permission for institution of complaint against

the petitioner and the accused no 1 and in consent order test report

from Regional Pesticides Testing Laboratory (RPTL), Kanpur was

also referred. The petitioner and the accused no 1 were summoned

for offence under section 29 of the Act vide summoning order dated

11.12.2017 passed by the trial court. The respondent did not produce

second sample before trial court along with complaint but produced

on 25.02.2019 on an application of the petitioner and trial court vide

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order dated 25.02.2019 observed that the sample had already expired

in August 2018.

7. The learned Senior Counsel for the petitioner argued as under:-

7.1 The petitioner has been deprived of its valuable statutory rights

to have second sample re-analysed for conclusive result under section

24(4) of the Act and relied on State of Haryana V Unique Farmaid

Pvt. Ltd. and others, (1999) 8 SCC 190.

7.2 The present complaint is based on a Report which is invalid

and contrary to the Act as it was prepared beyond statutory period of

30 days. The sample was received by the laboratory on 05.11.2016

but Report was made on 10.01.2017 (mentioned as 16.01.2017 by the

petitioner).

7.3 As per Report, the sample did not conform to IS (Indian

Standard) specifications but the Bureau of Indian Standards Act,

2016 has not made or published any standard for the insecticide d-

trans Allethrin and relied on Dr. R. Venkatachalam and another V

State, Crl. M.C.1767-68 of 2006 dated 09.05.2013.

7.4 The statutory Consent Order dated 10.07.2017 under section

31(1) of the Act was granted without application of mind. The

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consent is based on an analysis at Regional Pesticides Testing

Laboratory, Kanpur whereas the complaint is based on an alleged

testing at Chandigarh. The Report stated to be prepared by Kanpur

Laboratory is not placed on record. The Consent Order reflects that

the sample of insecticide Transallethrin 0.25% was drawn whereas

Form XX filed with the complaint pertains to sample of "d-trans

Allethrin which also reflects non-application of mind. The learned

Senior Counsel relied on Harjeet Singh V State, 1998(46) DRJ96

and Krishna Agencies V State of Rajasthan, S.B. Criminal Misc.

Petition no. 297/2006 decided on 28.11.2013 by the High Court of

Rajasthan.

7.5 The prosecution is vitiated as it pertains to an insecticide

Transallethrin 0.25% w/w whereas sample of insecticide d-trans

Allethrin was drawn and analysed. It was according argued that the

complaint and summoned issued to the petitioner are liable to be

quashed.

8. The Additional Public Prosecutor argued to the contrary and

made arguments based on pleas and averments as mentioned in short

reply. It was argued that the petition is liable to be dismissed.

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9. The respondent filed present complaint in respect of insecticide

Transallethrin on allegations that accused no. l was found

selling/storing misbranded insecticide Transallethrin 0.25% W/w

batch no. FF16-007 stated to be manufactured by the petitioner

during visit of the Insecticide Inspector on 03.11.2016 at 152-A,

Todarmal Colony, Najafgarh, New Delhi-110043and Form No. XX

was also filled. The sample was sent for testing to the Insecticide

Analyst and Report bearing no 001848 from the Coding Officer,

Directorate of Plant Protection, Quarantine and Storage, NH-IV,

Faridabad (Haryana) along with the Report dated 10.01.2017 from

the Regional Pesticide Testing Laboratory, Chandigarh (U.T.)-

160030 with result "The sample does not conform to the relevant

IS Specification in the test conducted" was received. The perusal

of Form XX which is intimation to person/licensee from whom the

sample is taken reflects that sample of insecticide/misbrand d-trans

Allethrin 0.25% w/w was taken on 03.11.2016 by the Insecticide

Inspector from the premises of the accused no 1.The Report bearing

no. 1574/CCC/RPTL/37/2016-17/001848 from Directorate of Plant

Protection, Quarantine &Storage, NH-IV, Faridabad (Haryana)-

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121001 along with Report dated 10.01.2017 from Directorate of Plant

Protection Quarantine & Storage , Regional Pesticide Testing

Laboratory, Chandigarh also reflects that it was in respect of

insecticide d-transallethrin 0.25% Aerosol. The respondent in

Memorandum dated 24.03.2017 issued to the accused no. 1 and the

petitioner also mentioned name of the misbrand insecticide as d-

Trans Allethrin 0.25 % W/w batch No. FF16-007.It is reflecting that

entire prosecution against the petitioner is based on insecticide d-

transallethrin 0.25% Aerosol but in complaint, insecticide

Transallethrin 0.25% W/w batch no. FF16-007 is mentioned. The

Additional Public Prosecutor argued that in the complaint, insecticide

Transallethrin 0.25% W/w batch no. FF16-007 was wrongly

mentioned. There is force in argument advanced by the Additional

Public Prosecutor for the respondent that in complaint insecticide

Transallethrin 0.25% W/w batch no. FF16-007 was wrongly

mentioned. The entire prosecution cannot be vitiated by mere wrong

mentioning of insecticide in the complaint particularly when in the

documents i.e. Form XX and Report dated 10.01.2017 relied upon by

the respondent, name of the insecticide is correctly mentioned. No

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prejudice was caused to the petitioner by wrong mentioning of the

insecticide in the complaint although the respondent should have

taken proper care regarding mentioning of correct name of the

insecticide in complaint. There is no force in arguments advanced by

learned Senior Counsel for the petitioner that prosecution is vitiated

on ground that the complaint is filed in respect of insecticide

Transallethrin 0.25% W/w batch no. FF16-007 while sample of

insecticide d-trans Allethrin 0.25% w/w was taken on 03.11.2016 by

the Insecticide Inspector.

10. A.P. Saini, Joint Director (Agri.), Licensing Officer

(Insecticide) Govt. of NCT of Delhi in exercise of the powers

conferred upon him under section 31(1) of the Insecticide Act by

virtue of the Notification no. 72(26)/69-70/Dev./PP/21278 dated

13.11.1975 accorded permission/consent bearing no F.11(1)/II(

)/Sample/PP/2016-17/112 dated 10.07.2017for institution of the case

under section 29 of the Act and Rule 71against the accused no.1 and

the petitioner after being satisfied on careful examination of the

analysis report of Regional Pesticide Laboratory, Kanpur dated

09.01.2017 and formed opinion that the accused no. 1 and the

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petitioner have committed violations of the provisions of Insecticide

Act, 1968. The relevant part of Consent Order dated 10.07.2017 is

reproduced as under:-

AND WHEREAS I, A.P. Saini, Jt. Director (Agriculture) Licensing Officer (Insecticide), Govt. of NCT of Delhi, notified vide Notification No. F.56(333)/07/Dev. HQ/5797 dated 21.03.2014, am satisfied after careful examination of the analysis report of Regional Pesticide Laboratory, Kanpur dated 09.01.2017 that M/s. Rajesh Enterprises and M/s. (Godrej Consumer Products Ltd. have committed violations of the provisions of Insecticide Act, 1968.

Now I, therefore, in exercise of the powers conferred upon me U/s. 31(1) of the Insecticide Act by virtue of Notification No.72(26)/69-70/ Dev./PP/21278 dated 13.11.1975, I, A.P. Saini, Licensing Officer (Insecticide), Govt. of NCT of Delhi hereby give my permission/ consent for institution of the case U/s. 29 of the Insecticide Act and Rule 71.......

10.1 The perusal of consent order dated 10.07.2017 also reflects

that it was passed in respect of misbranded insecticide Transallethrin

0.25% W/w batch no. FF16-007 with manufacturing date as

September 2016 and expiry date as August 2018 which was stated to

be purchased by the Insecticide Inspector vide Bill/Retail Invoice

dated 03.11.2016 and Form XX (under Rule 33) was also obtained.

The relevant part of consent order dated 10.07.2017 is reproduced as

under:-

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AND WHEREAS during the inspection from the premises of M/s.Rajesh Enterprises, Shri A.K. Gangwar purchased Transallethrin 0.25% W/w batch no. FF16-007 mfg. date September 2016 and Expiry Date - August 2018 the date of manufacturing being manufactured by M/s. Godrej Consumer Products Ltd. vide Bill/Retail Invoice dated 03.11.2016. Along with the said Bill, Shri A.K. Gangwar also obtained a Form No. XX (under Rule 33), in which the details of Sample were taken.

10.2 The learned Senior Counsel argued that consent order dated

10.07.2017 is vitiated as it was passed without application of judicial

mind by the concerned authority. The consent order was passed in

respect of insecticide Transallethrin 0.25%W/w batch no. FF16-007

while as per Form XX, Report dated 10.07.2017 and Memorandum

dated 24.03.2017 sample of insecticide d-trans Allethrin was taken

from the premised of the accused no 1 on 03.11.2016 and on basis of

analysis Report dated 09.01.2017 stated to be prepared by Regional

Pesticide Laboratory, Kanpur which was never placed on record.

10.3 Section 31(1) of the Act deals with cognizance and trial of

offences. It creates a bar on prosecution of offences under the Act in

absence of written consent of the State Government or a person

authorised by the State Government. It reads as under:-

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31. Cognizance and trial of offence:- (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorised in this behalf by the State Government.

10.4 It is accepted legal proposition that an authority vested with

discretionary power should exercise discretion by applying its mind

to given set of facts and circumstances of the case. If any authority

takes decision without application of mind then decision is bad and

cannot be legally sustained. The sanctioning authority while

according sanction/consent order must consider relevant material and

evidence with due application of mind. The sanctioning/consent order

must disclose that the concerned authority has actually applied its

mind by considering relevant factors and evidence at time of granting

sanction or consent order. The Supreme Court in Mansukhlal

Vithaldas Chauhan V State of Gujarat, 10 (1997) 7 SCC 622

observed as under:-

18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by

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extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.

19. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not.

10.4.1 The Supreme Court in State of Rajasthan V Tarachand

Jain, 1974 SCR (1) 146 also observed as under:-

We find that the position of law is that the burden of proof that the requisite sanction had been obtained rests upon the prosecution. Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be, proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority.

10.4.2 It was observed by this court in Harjeet Singh V State, 1998

(46) DRJ 96 and also relied on by the learned Senior Counsel for the

petitioner as under:-

13. The sanction to prosecute is a very vital and important matter. It constitutes a condition precedent to the institution of the prosecution. The sanctioning authorities either the Central Government or the State Government have absolute discretion either to grant sanction or

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withhold the sanction. It must be clearly borne out from the sanctioning order that before granting sanction or withholding sanction, the sanctioning authority had all the necessary facts constituting the offences before it. It should also be clear from the sanctioning order that there has been proper application of mind before taking the decision.

Grant of sanction or withholding of the sanction is not an idle formality or acrimonious exercise but a solemn and sacrosanct act which has to be performed with extreme caution and care. This is virtually the foundation on which the entire future course of action is totally dependent.

10.5 The Joint Director (Agri.), Licensing Officer (Insecticide)

Govt. of NCT of Delhi was expected to pass consent order dated

10.07.2017 for institution of the case under section 29 of the

Insecticide Act and Rule 71 against the accused no.1 and the

petitioner after due application of mind. However, perusal of Consent

Order dated 10.07.2017 reflects that it was passed on basis of

irrelevant consideration and in mechanical manner without due

application of mind. The authority passed the consent order dated

10.07.2017 with reference to insecticide Transallethrin 0.25% W/w

batch no FF16-007 and after considering Report dated 09.01.2017

stated to be prepared by Regional Pesticide Laboratory, Kanpur. In

fact, the sample of insecticide d-trans Allethrin was taken on

03.11.2016 and subsequently analysis Report bearing no.

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1574/CCC/RPTL/37/2016-17/001848 received from Directorate of

Plant Protection, Quarantine &Storage, NH-IV, Faridabad (Haryana)-

121001 along with Report dated 10.01.2017 from Directorate of Plant

Protection Quarantine & Storage , Regional Pesticide Testing

Laboratory, Chandigarh were received. It is apparent that authority

passed the consent order dated 10.07.2017 on basis of irrelevant

consideration and without application of mind. It is established that

authority has not considered sample of d-trans Allethrin and Report

dated 10.01.2017 at time of passing consent order dated 10.07.2017

and accordingly Consent Order dated 10.07.2017 is vitiated by non-

application of mind and irrelevant consideration. The learned Senior

Counsel rightly argued that Consent Order dated 10.07.2017 was

passed without application of mind. The present complaint is

accordingly bad in law.

11. The learned Senior Counsel for the petitioner argued that the

respondent has violated section 24(4) of the Act as the petitioner was

deprived of its statutory right to have second sample re-analysed as

per section 24(4) of the Act and relied on State of Haryana V

Unique Farmaid Pvt. Ltd. and others, (1999)8SCC190. The

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Additional Public Prosecutor for the respondent argued that the

petitioner has failed to avail the opportunity of getting the sample

in question re-tested despite two opportunities. The Insecticide

Inspector on 03.11.2016 found that the accused no. l was

selling/storing misbranded insecticide stated to be manufactured by

the petitioner and Form XX was filed/obtained. Subsequently, the

analysis Report dated 10.01.2017 was received with the result "The

sample does not conform to the relevant IS Specification in the

test conducted". The respondent vide Memorandum dated

24.03.2017 intimated about Report dated 10.01.2017 to the accused

no. 1 and the petitioner. The accused no. l and the petitioner vide

respective reply vide letter dated 12.04.2017and dated

17.04.2017reserved their rights to adduce further evidence as may be

deemed necessary. Thereafter the respondent issued another

Memorandum dated 01.05.2017 and the accused no 1 and the

petitioner submitted replies dated 09.05.2017 wherein they did not

specifically make request for re-testing of sample of misbrand

insecticide by the Central Insecticides Laboratory but again reserved

rights to adduce such other evidence as may be deemed necessary

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and right to be heard in person. The respondent filed complaint

bearing no 13384 of 2017 on 11.07.2018 which was listed on

12.07.2018 for hearing before the trial court. The summoning order

was passed on 11.12.2017.The sample expired in August, 2018. The

petitioner appeared before the trial court on 22.10.2018 after being

served with summons on 17.10.2018 and filed an application for

production of second sample under section 22(6)(ii) of the Act. The

respondent produced second sample before the trial court on

25.02.2019 and trial court vide order dated 25.02.2019 observed that

the sample had already expired in August 2018.

11.1 Section 24 of the Act deals with Report of Insecticide Analyst.

Sub clauses (3) & (4) read as under:-

(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

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evidence in controversion of the Insecticide Analysts 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, 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.

11.2 Issue which needs consideration is that whether averments

made by the petitioner in replies dated 17.04.2017 and 09.05.2017 in

response to Memorandum dated 24.03.2017 and 01.05.2017 that the

petitioner reserved its right to adduce other evidences as may be

deemed necessary is sufficient to notify intention of the petitioner for

adducing evidence in controversion of analyst report dated

10.01.2017 as per section 24 (3) &(4) of the Act. The Supreme Court

in Northern Mineral Ltd V Union of India and another, (2010) 8

SCR 1 dealt with said issue and observed that the act of the accused

notifying in writing its intention to adduce evidence in controversion

of the report shall give right to the accused and would be sufficient to

clothe the Magistrate the jurisdiction to send the sample to Central

Insecticide Laboratory for analysis and it is not required to state that

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it intends to get sample analysed from the Central Insecticides

Laboratory. It was observed as under:-

11. From a plain reading of Section 24(3) of the Act, it is evident that an accused within 28 days of the receipt of the copy of the report of the Insecticide Analyst to avoid its evidentiary value is required to notify in writing to the Insecticide Inspector or the Court before which the proceeding is pending that it intends to adduce evidence in controversion of the report. Section 24(4) of the Act provides that when an accused had notified its intention of adducing evidence in controversion of the Insecticide Analyst report under Section 24(3) of the Act, the court may of its own motion or in its discretion at the request either of the complainant or the accused cause the sample to be sent for analysis to the Central Insecticides Laboratory. Under the scheme of the Act when the accused had notified its intention to adduce evidence in controversion of the report of the Insecticide Analyst, the legal fiction that the report of the Insecticide Analyst shall be conclusive evidence of the facts stated in its report looses its conclusive character. The Legislature has used similar expression i.e. the "intention to adduce evidence in controversion of the report" in both subsection (3) and sub- section (4) of Section 24 of the Act, hence both the expression has to be given one and the same meaning. Notification of an intention to adduce evidence in controversion of the report takes out the report of the Insecticide Analyst from the class of "conclusive evidence"

contemplated under subsection (3) of Section 24 of the Act. Further intention of adducing evidence in controversion of the Insecticide Analyst report clothes the Magistrate the power to send the sample for analysis to the Central

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Insecticides Laboratory either on its own motion or at the request of the complainant or the accused. In face of the language employed in Section 24(4) of the Act, the act of the accused notifying in writing its intention to adduce evidence in controversion of the report in our opinion shall give right to the accused and would be sufficient to clothe the Magistrate the jurisdiction to send the sample to Central Insecticide Laboratory for analysis and it is not required to state that it intends to get sample analysed from the Central Insecticides Laboratory. True it is that report of the Insecticides Analyst can be challenged on various grounds but accused can not be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion. The moment it is done conclusive evidentiary value of the report gets denuded and the statutory right to get the sample tested and analysed by the Central Insecticides Laboratory gets fructified.

11.2.1The Supreme Court in Northern Mineral Ltd V Union of

India and another also referred State of Haryana V Unique

Farmaid (P) Ltd. &others, (1999) 8 SCC 190 which was also relied

on by the learned Senior Counsel for the petitioner. The Supreme

Court in State of Haryana V Unique Farmaid (P) Ltd. & others as

under:-

12. It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub- section (4) of Section 24 of the Act.

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Under sub-section (3) of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, prejudicing them in their defence.

11.3 The petitioner was supplied with analysis Report dated

10.01.2017 vide Memorandum dated24.03.2017 and the petitioner

vide letter dated 17.04.2017reserved right to adduce further evidence

and a right to be heard in person. The petitioner again in

response/reply dated 09.05.2017 to another Memorandum dated

01.05.2017 reserved right to adduce such other evidence as may be

deemed necessary and right to be heard in person. This plea of the

petitioner is sufficient to notify its intention to adduce evidence in

controversion of analyst Report dated 10.01.2017 although the

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petitioner did not specifically make request for re-testing of sample

of misbrand insecticide by the Central Insecticides Laboratory. The

petitioner as such notified its intention for re-testing of sample within

28 days. The Report dated 10.01.2017 in these circumstances lost it

conclusive character. The respondent produced sample of contraband

before the trial court on 25.02.2019 and by that time sample had

already expired in August 2018. The petitioner as such was deprived

his valuable statutory right for re-testing of sample as section 24 (3)

& (4) of the Act and due to this reason prosecution of the petitioner

by filing complaint is vitiated. The argument advanced by the learned

Senior Counsel to this effect is legally sustainable. There is no force

in argument advanced by the Additional Public Prosecutor that the

petitioner has failed to avail the opportunity of getting the sample

in question re-tested despite two opportunities.