Avani Seeds Ltd Thro Vasantbhai ... vs State Of Gujarat
2021 Latest Caselaw 5985 Guj

    R/CR.MA/13348/2019                          JUDGMENT DATED: 15/06/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC. APPLICATION NO. 13348 of 2019

                                  With

      R/CRIMINAL MISC. APPLICATION NO. 13386 of 2019

                                  With

      R/CRIMINAL MISC. APPLICATION NO. 13372 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

=============================================

1     Whether Reporters of Local Papers may be                      ___
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?                       Yes

3     Whether their Lordships wish to see the fair copy             ___
      of the judgment ?

4     Whether this case involves a substantial question             ___
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

=============================================
        AVANI SEEDS LTD THRO VASANTBHAI RAMCHANDRA
                          KHAMBETE
                            Versus
                      STATE OF GUJARAT
=============================================
Appearance:
MR SK PATEL(654) for the Applicant(s) No. 1,2,3,4
MS MONALI BHATT APP for the Respondent(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 2
=============================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 15/06/2021

                         COMMON ORAL JUDGMENT

R/CR.MA/13348/2019 JUDGMENT DATED: 15/06/2021

1. Common issue has arisen in all the captioned

matters, by consent of both the parties, the matters were

heard finally and are being disposed of by this common

judgment.

2. These petitions have been filed under Article

226 of the Constitution of India as well as under section

482 of the Code of Criminal Procedure for quashing and

setting aside the complaints under Section 6 and 7 of the

Seeds Act, 1966 read with Section 10 of Seeds Rules,

1968 being:

(i) Criminal Case No.01 of 2019 in Cr.M.A. No.13348 of

2019 pending in the Court Judicial Magistrate, First

Class, Varahi-Santalpur;

(ii) Criminal Case No.2193 of 2018 in Cr.M.A. No.13372

of 2019 pending in the Court Judicial Magistrate, First

Class, Surendranagar;

(iii) Criminal Case No.36 of 2019 in Cr.M.A. No.13386 of

2019 pending in the Court Judicial Magistrate, First

Class, Patan.

R/CR.MA/13348/2019 JUDGMENT DATED: 15/06/2021

3. Facts in all these maters are more or less same.

The applicants have challenged the proceedings pending

before the Judicial Magistrate on the ground that the

applicants are prejudiced, since they could not avail the

right of getting the sample seeds examined by the Central

Seed Testing Laboratory, as the sample lost its shelf-life

and therefore the applicants were deprived of their

valuable right of reanalysis.

4. Mr. S.K. Patel, learned advocate for the

applicants in all the captioned matters relying on the

judgment of Khodiyar Agro Through Trada nanlal

Gandhubhai & Ors. Vs. Agriculture officer Shri J.D.

Gondaliya & Ors., reported in 2018 LawSuit (Guj.) 24,

wherein reliance has been made in the Supreme Court

judgment in case of Mahyco Vegetable Seeds Ltd.

(Now known as Maharashtra Hybrid Seeds Co. Pvt.

Ltd.) & Ors. Vs. State of Maharashtra & Ors.,

[Criminal Appeal No.1092 of 2017 dated 10.07.2017],

submitted that Section 16(2) of the Seeds Act, 1966,

permits the accused - vendor or the complainant to make

R/CR.MA/13348/2019 JUDGMENT DATED: 15/06/2021

an application to the Court for sending the sample to the

Central Seed laboratory for its report.

5. Advocate Mr. Patel, submitted that such right

can be availed by the accused - vendor after the

institution of the prosecution under the Seeds Act and the

report of the Central Seed Laboratory shall supersede the

report given by the seeds analyst. Mr. Patel contended

that after the prosecution was launched against the

applicants in all the captioned matters and prior to the

date of appearance on issuance of summons, shelf life of

sample got lost and therefore the applicants could not

have the benefit of the provisions made under Section

16(2) of the Seeds Act, 1966. Mr. Patel submitted that as

there was deprivation of the right guaranteed by law to

the accused - vendor, further proceedings in the Court of

Judicial Magistrate would be futile and therefore has

prayed for quashing the prosecution in all the matters.

6. Ms. Monali Bhatt, learned APP for the

respondent State, submitted that when the prosecutions

were launched before the concerned Judicial Magistrates,

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the sample seeds were within the shelf-life and the report

of the Gandhinagar Laboratory declared the samples as

sub-standard and therefore submitted that the institution

of the prosecution cannot be considered as invalid. She

submits that there could not be any contravention to the

rights of the accused causing any prejudice to the

defence. Ms. Monali Bhatt, submits that after the

opportunity of explanation to the applicants was given,

under requisite sanction, the prosecution was launched.

Hence, supporting the launching of the prosecution, Ms.

Monali, learned APP, prayed for rejecting of all the

matters.

7. In Criminal Misc. Application No.13348 of

2019, the relevant particulars are as under:

Lot No. Sample Sample Date of Case Summo Appear Shelf-

collected Received Report filed on ns ance life of by State issued Before the Laborato date the seeds ry Court ASL-18-01- 26.06.2018 30.06.20 30.10.20 09.01.20 09.01.20 22.02.20 18.02.

BLK-4411              18            18       19       19       19       2019




7.1               In Criminal Misc. Application No.13372 of

2019, the relevant particulars are as under:

R/CR.MA/13348/2019 JUDGMENT DATED: 15/06/2021

Lot No. Sample Sample Date Case Summons Appearanc Shelf collected Received of filed issued e Before -life by State Repo on date the Court of Laborato rt the ry seeds ASL-18-01- 05.06.2018 12.06.20 30.10. 24.12. 24.12.2018 25.01.2019 22.01.

BLK-4402              18               2018 2018                                    2019



7.2               In Criminal Misc. Application No.13386 of

2019, the relevant particulars are as under:

Lot No. Sample Sampl Date of Case Summons Appearanc Shelf-

collected e Report filed issued e Before life of Receiv on date the Court the ed by seeds State Labora tory ASL-18-01- 26.06.201 27.06.2 30.10.2 15.01. 15.01.2019 11.02.2019 26.01.

BLK-4404 8 018 018 2019 2019

7.3 In all the above cases, the prosecution has been

launched on the ground of low germination quality of

seeds i.e. Gravel (Bajari) seeds variety "Avani-444++". As

per the Seeds Act, 1966, 95% germination is required and

the report of the laboratory declared germination of the

seeds as 02% and thereby considered the sample as sub-

standard.

8. Having heard the learned advocates for both

the sides and on perusal of the record on hand, the major

question which requires consideration in the facts of the

R/CR.MA/13348/2019 JUDGMENT DATED: 15/06/2021

matters that prosecution is launched under Seeds Act and

before process of summons comes to be served by the

Court, the sample loses its shelf-life, whether

continuation of the prosecution can be challenged in view

of the deprivation of the valuable right vested with the

accused - vendor for making an application to the Court

of sending the sample for report from the Central Seeds

Laboratory?

8.1 Section 16 of the Seeds Act relates to the

report of the Seeds Analyst. As per the provision, after

receipt of the sample, Seeds Analyst analysis the sample

at the State Seed Laboratory and delivers a copy of report

of the result in a prescribed form to the Seed Inspector

and another copy to the person from whom the samples

have been taken. Section 16(2) of the Seeds Act further

makes a salutary provision in favour of the accused -

vendor.

8.2 Section 16 of the Seeds Act reads as under:

"16. Report of Seed Analyst: (1) The Seed Analyst shall, as soon as may be after the

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receipt of the sample under sub-section (2) of section 15, analyse the sample at the State Seed Laboratory and deliver, in such form as may be prescribed, one copy of the report of the result of the analysis to the Seed Inspector and another copy thereof to the person from whom the sample has been taken.

(2) After the institution of a prosecution under this Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending any of the samples mentioned in clause (a) or clause (c) of sub-section (2) of section 15 to the Central Seed Laboratory for its report and on receipt of the application, the court shall first ascertain that the mark and the seal or fastening as provided in clause (b) of sub-section (1) of section 15 are in tact and may then despatch the sample under its own seal to the Central Seed Laboratory which shall thereupon send its report to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of the analysis.

             (3)     The report sent by the Central Seed
             Laboratory      under       sub-section        (2)       shall

supersede the report given by the Seed Analyst under sub-section (1).

(4) Where the report sent by the Central Seed Laboratory under sub-section (2) is produced in any proceedings under section 19, it shall not be necessary in such proceedings to

R/CR.MA/13348/2019 JUDGMENT DATED: 15/06/2021

produce any sample or part thereof taken for analysis."

8.3 Section 16(3) of the Seeds Act makes provision

of supersession of the report of the Seed Analyst on

receipt of the report from the Central Seed Laboratory.

Such report of the Central Seed Laboratory becomes part

of the proceedings before the Court under the Seeds Act.

The bare reading of Section 16(2) of the Act clearly

indicates that the report of the State Seed Laboratory is

not final and conclusive to hold the accused guilty for the

contravention of the provisions of the Seeds Act. After the

institution of the prosecution under the Act, the accused -

vendor or the complainant becomes entitle to apply

before the Court for sending the samples to the Central

Seeds Laboratory for its report. On receipt of the

application, the Court shall first ascertain the mark and

the seal or fastening as provided in clause (b) of sub-

section (1) of section 15 of the Seeds Act to find out

whether they are in tact and then may dispatch the

sample under the Court seal to the Central Seed

Laboratory, which laboratory shall thereupon sends its

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report to the Court in the prescribed form within one

month from the date of receipt of the sample, specifying

the result of the analysis. This basic right of the accused

is for his defence to challenge the correctness of the local

seeds analyst report. The said right to defend is in terms

of provisions as a fundamental right. Here in all the

cases, the shelf-life of the sample got lost prior to the

date of appearance of the vendor - accused in the Court.

By the time, the accused was summoned to appear in the

Court, they lost their right of getting the samples

reanalyzed from the Central Seed Laboratory as provided

under sub-section (2) of Section 16 of the Seeds Act.

Whether these circumstances would vitiate the trial and

thereby could be considered as an abuse of process of

Court is to be answered in these present matters.

9. In the case of State of Haryana Vs. Unique

Farmaid (P) Ltd. & Ors., reported in (1999) 8

Supreme Court Cases 190, similar set of circumstances

were pleaded before the Hon'ble Supreme Court, wherein

the prosecution was launched against the Unique

Farmaid (P) Ltd., who moved the High Court under

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Section 482 of the Cr.P.C. read with Article 227 of the

Constitution of India for quashing the complaint and the

consequential proceedings. By the time, summoned to

appear in the Court was served, the accused lost their

right to get reanalyzed the sample in the C.I.L. in terms of

sub-section (4) of Section 24 of the Insecticides Act, 1968.

The Hon'ble Supreme Court after considering the

provisions of law as laid down under Sections 22, 24 and

30 of the Insecticides Act, 1968, observed that the

valuable rights conferred upon the accused to have

sample tested from the C.I.L. were deprived, thus,

prejudicing them in the defence.

10. It would be very much fruitful to extract

hereinbelow Section 24 of the Insecticides Act, 1968 to

verify the facts of the present matters and to answer the

issue whether the rights as guaranteed under Section

16(2) of the Seeds Act were deprived.

"24. 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

R/CR.MA/13348/2019 JUDGMENT DATED: 15/06/2021

the Insecticide Inspector submitting 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 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

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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.

(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."

10.1 The comparative analysis of Section 24 of the

Insecticides Act along with Section 16 of the Seeds Act,

would make it clear that the accused under the

Insecticides Act would have a right to notify in writing to

the Insecticide Inspector or the Court before which any

proceedings in respect of samples are pending, his

intention to adduce evidence in contravention of the

report. Thus, as per the provision of Section 24 of the

Insecticide Act even before launching of prosecution, the

accused within 28 days on receipt of copy of report may

notify in writing to Insecticide Inspector his intention to

challenge the Insecticide Analyst report.

10.2 While on bare reading of sub-section (2) of

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section 16 of the Seeds Act, it could be deduced that, it is

only after the institution of the prosecution, the accused -

vendor would get his right before the Court to declare by

way of application of his intention to challenge the report

of the state seed laboratory. Sub-section (2) of section 16

does not provide of making known the intention to adduce

the evidence in contravention of the seed analyst's report

to the Seed Inspector. Thus the accused - vendor would

have no other option but to wait for the institution of the

prosecution under the Seeds Act and thereafter on his

appearance in the Court can avail his right to give the

application before the Court concerned praying to send

the samples for reanalysis before the Central Seed

Laboratory. Here in all the captioned cases, before the

the applicants could file their appearances in the Court,

the shelf-life of the samples got lost. Therefore, after the

expiry of the shelf-life, any application before the

concerned Court for reexamination of the samples, would

lose significance, since the report would bear no result.

11. The Seed Inspector would be very well aware of

the provisions of the Act. Section 16(2) of the Seeds Act is

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a safeguard provided to the accused - vendor. Thus, it

would become incumbent on the Seed Inspector to file

the complaint within such time period ensuring that the

right of the accused does not get lost. In all the matters

on hand, when the applicants were asked to present

themselves before the Court, pursuant to the launching,

the expiry date of the seeds were already over. The

applicant were deprived of their rights as guaranteed

under Section 16(2) of the Seeds Act. The prosecution has

sufficient time after the receipt of the report from the

State Seed Laboratory to expeditiously prefer the

prosecution, which could have provided sufficient time to

the Court to present the accused to avail the statutory

defence available to them.

12. In all the present cases, the procedural lapse

deprived the valuable rights of the applicants to have

sample tested from the Central Seed Laboratory. In these

circumstances, the prosecution pending in all the Court

concerned would be futile and ultimately be redundant.

Thus, the continuation of the proceedings against the

applicant ultimately would be wastage of precious time of

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the Court, as valuable rights of defence got lost during

the proceedings and there would not be any possibility of

conviction in the matters. Hence, the Court is of the

opinion that these are fit cases, where the inherent

powers of the Court under section 482 of the Cr.P.C.

could be exercised in favour of the applicants for securing

the ends of justice.

13. In the result, the applications are allowed. (i)

Criminal Case No.01 of 2019 in Cr.M.A. No.13348 of

2019 pending in the Court Judicial Magistrate, First

Class, Varahi-Santalpur (ii) Criminal Case No.2193 of

2018 in Cr.M.A. No.13372 of 2019 pending in the Court

Judicial Magistrate, First Class, Surendranagar and (iii)

Criminal Case No.36 of 2019 in Cr.M.A. No.13386 of

2019 pending in the Court Judicial Magistrate, First

Class, Patan, and the consequential proceedings initiated

in pursuance thereof are quashed and set aside qua the

present applicants. Rule is made absolute.

(GITA GOPI, J.) Pankaj