Gujarat High Court

Navkar Hybrid Seeds Private Ltd. Thro ... vs State Of Gujarat on 3 January, 2024

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   R/CR.MA/16028/2021                                     ORDER DATED: 03/01/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                  FIR/ORDER) NO. 16028 of 2021

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NAVKAR HYBRID SEEDS PRIVATE LTD. THRO ASHWIN BOGILAL SHAH
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR. AKASH R PATEL(6715) for the Applicant(s) No. 1,2,3,4,5,6
NOTICE SERVED for the Respondent(s) No. 2
MR. MANAN MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 03/01/2024
                               ORAL ORDER

1. Rule returnable forthwith. Mr. Manan Mehta,

the learned Additional Public Prosecutor waives service of

notice of rule for and on behalf of the respondents.

2. By this application under Section 482 of the Code of

Criminal Procedure, 1973, the applicants -

original accused persons seek to invoke the

inherent powers of this Court, praying for quashing of

the proceedings of the Criminal Case No.429 of 2019

pending before the Judicial Magistrate First Class,

Vayad, District: Arvalli for the offences under Sections

6(a) and 7(b) of the Seeks Act, 1966 read with Section

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10 of the Seeds Rules, 1968.

3. The applicant No.1 herein namely 'Navkar Hybrid

Seeks Private Ltd.' is the dealer, the applicant No.2

namely 'Bavadiya Vanrajdal Shuklabhai' is the authorised

person of the applicant No.1 - firm, and the rest

applicants - accused are sale agency of the applicant.

4. It appears from the materials on record

that the Agriculture Officer, Vayad, in exercise of

his powers under the Seeds Act, 1966 collected

samples of cumin seeds variety "NCCH-0002

BG-II", stage certified, bearing lot No.2015224

from the applicant No.1 for the purpose of analysis. The samples were collected on 21.6.2018. The

samples were sent for analysis to the seeds testing

laboratory at Vayad, District: Arvalli. The laboratory, in

its report dated 10.10.2018, certified the seeds to be

substandard. Ultimately, on 2.4.2019, a complaint

was filed by the respondent No.1 bearing Criminal Case

No.429 of 2019 pending before the Judicial Magistrate

First Class, Vayad, District: Arvalli for the offences

under Sections 6(a) and 7(b) of the Seeks Act, 1966 read

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with Section 10 of the Seeds Rules, 1968.

5. At this stage, it is important to note that shelf life of

the samples was till 25.2.2018. The learned counsel

appearing for the applicants submitted that the

prosecution against the applicants should fail on the

short ground of violation of Section 16(2) of the Seeds

Act, 1966. He would submit that under Section 16(2) of

the Seeds Act, 1966, after the institution of the

prosecution, the accused is vested with a right to make

an application to the Court for sending a part of the

sample to the Central Seeds Laboratory for reanalysis. It

is submitted that by the time, the complaint came to be

filed on 11th April 2014, the samples lost its shelf life. The applicants thereby were deprived of their valuable

right of reanalysis. In support of his submissions, he

placed reliance on a decision of the Supreme Court in

the case of Mahyco Vegetable Seeds Ltd (Now known

as Maharashtra Hybrid Seeds Co Pvt Ltrd) and others

vs. State of Maharashtra and others [Criminal Appeal th No.1092 of 2017 decided on 10 July 2017].

6. In such circumstances referred to above,

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the learned counsel appearing for the

applicants prays that there being merit in

this application, the same be allowed and the proceedings

be quashed.

7. On the other hand, this application has been

vehemently opposed by Mr. Manan Mehta, the

learned A.P.P. appearing for the State. He submitted

that the issue with regard to right of the accused

persons under Section 16(2) of the Seeds Act, 1966 can

be looked into by the Trial Court. According to the

learned A.P.P., this Court may not go into such issue.

The learned A.P.P. submits that there being no merit in

this application, the same be rejected.

8. Having heard the learned counsel appearing for the

parties and having considered the materials on record,

the only question that falls for my consideration is

whether the complaint should be quashed.

9. Section 16(2) of the Seeds Act, 1966 reads as under:

"16 Report of Seed Analyst.

(1) ......

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(2) After the institution of a prosecution under this Act, the accus ed 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 subsection (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 subsection (1) of section 15 are intact and may then dispatch 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."

10. The plain reading of Section 16(2) of the Act, 1966

would indicate that the report of the local seeds testing

laboratory is not final and conclusive so as to hold the

accused guilty of the contravention of the provisions of

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the Act. Under Section 16(2) of the Act, after filing of a

complaint and issue of process, an

opportunity is available to the accused to

challenge the report by way of making an application to

the Court for sending the samples to the

Central Seeds Laboratory for retesting or

rechecking the veracity of the report of the

local seeds laboratory, and as per Subsection (3) of the

Section 16 of the Act, this report of the Central Seeds

Testing Laboratory supersedes the report of the local

seeds testing laboratory. This right has to be exercised

by the accused. If the accused does not apply before the

Court concerned, then he cannot complain of breach of

Section 16(2) of the Seeds Act or his right to get the samples reanalyzed.

11. In the case at hand, as the shelf life 25.2.1018, the

prosecution case should have been filed within that

period. The learned counsel appearing for the applicants

rightly contended that the Indian Seeds Minimum

Certification Manual itself prescribes the validity period

of such certificates. If it is not done, then, an

opportunity of challenge and rebutting the local seeds

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testing laboratory by submitting the seeds beyond the

period of shelf life to the Central Seeds Testing

Laboratory would be lost. As such, the basic right of

the accused to defend himself by proving the correctness

or otherwise of the local seeds testing

laboratory report is taken away or made

nugatory by launching the prosecution beyond the period

of shelf life. Since the right to defend is one of the

fundamental rights and if such rights are taken away by

delay or laches on the part of the prosecuting agency,

the prosecution becomes illegal. [See: S.

Jayanarayana vs. State of Karnataka (2003 Cri. L.J.

3245)].

12. At this stage, let me look into the two decisions of

the Supreme Court.

13. In the case of Mahyco Vegetable Seeds Ltd (supra),

the Supreme Court observed in para 4 as under:

"The point agitated is short and precise. The sample of seeds was taken on 01.09.2002 and the report of the Seeds Analyst is dated 26.09.2002. The shelf life of the sample was till 07.11.2002 which is evident from the details of the

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samples taken, mentioned in FormVIII. A complaint was filed on 31.01.2003. Under Section 16(2) of the Seeds Act, 1966 after institution of above prosecution, the accused or the complainant, as may be, is vested with a right to make an application to the Court for sending a part of the sample to the Central Seed Laboratory for reanalysis. Such pari materia provisions in other statutes have been held by this Court to be mandatory. Vesting a valuable right either in the accused or the complainant as may be."

14. In the case of State of Haryana vs. Unique Farmaid

(P) Ltd. and others [(1999) 8 SCC 190], the Supreme

Court observed as under:

"If the expiry date of the sample was not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the dates of manufacture of the article and the expiry date are mentioned.

Section 30 provides for defences which may or may not be allowed in prosecution under the Act, Section 30(1) only prescribes in effect that ignorance would be no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. The procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused he

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certainly has the right to seek dismissal of the complaint. Then in order to safeguard the right of the accused to have the sample tested from the Central Insecticide Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, the expiry date of the insecticide was already over and sending of the sample to the Central Insecticides Laboratory at that late stage would be of no consequence. Therefore, in view of Ss. 24(3) and 245 (4) of the Insecticides Act the report of the Insecticide Analyst was 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 the accused have been deprived of that right, thus, prejudicing them in their defence. In these circumstances, the High Court was right in concluding that it would be an abuse of the process of the Court if the prosecution was continued against the accused persons. The High Court rightly quashed the

15. In Unique Farmaid (P) Ltd (supra), the Supreme

Court in para 12 of the judgment has made the

following observations:

"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

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Laboratory under subsection (4) of Section 24 of the Act. Under subsection (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."

16. In the case of Smt. Mallela Laxmi and others vs.

State of Andhra Pradesh [2003 Cri. L.J. 638], the

Andhra Pradesh High Court, by relying upon

the judgment of the Supreme Court, in the case of State

of Haryana vs. Unique Farmaid (supra), while

considering the provisions of Section 16(2) of the Seeds

Act, 1966 in para 14 of the judgment, has made the

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following observations:

"14. It is clear from Section 16 of the Act that the petitioners had the right to send the sample for analysis to the Central Seed Laboratory. It is a statutory right conferred on the petitioners, which cannot be deprived. Deprival of the said right would certainly cause prejudice since the valuable right to get the sample analysed is lost. I am of the considered view that the shelf life of the seed has expired and there is no purpose in continuing the prosecution as it amounts to abuse of process of the Court as adumbrated by the Supreme Court in the aforesaid decisions. The department itself has to be blamed for the sorry state of affairs for launching the prosecution belatedly and sleeping over the matter. When once prejudice is caused to the petitioners, they are certainly entitled to invoke the inherent powers of this Court. Hence, I disagree with the contentions advanced by the learned Public Prosecutor. Since the shelf life of the seed has expired, the question of sending the same to Central Seed Laboratory for analysis does not arise and the petitioners are certainly entitled to seek quashing of the proceedings."

17. In the case of S.A. Jayanarayana vs. State of

Karnakata [2003 Cri. L.J. 638], the Karnataka

High Court, after considering the provisions of

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Section 16(2) of Seeds Act 1966, has also taken the

similar view.

18. The Bombay Court, in the case of

Shivakumar vs. State of Maharashtra [(2010) 2

FAC 239], considered identical provisions of the

Prevention of Food Adulteration Act 1954, the Drugs and

Cosmetics Act, 1940, the Seeds Act 1966 and the

Insecticides Act 1968. While referring various judgments

of the Supreme Court, including the judgment in the

case of State of Haryana vs. Unique Farmaid (supra),

has taken similar view and further observed that in case

of such violation, the prosecution cannot succeed and it

is of no use in continuing with the prosecution. The order passed by the Bombay High Court stands

confirmed by the Supreme Court in the Special Leave to

Appeal (Criminal) No. 6332 of 2010.

19. In the case of the Municipal Corporation of Delhi vs.

Ghisa Ram [1948 997 (supp) FAC 93] in the Criminal

Appeal No. 194 of 1966 decided on 23rd November 1966,

in para 9 of the judgment, the Supreme Court has made

the following observations:

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"9. In the present case, the sample was taken on the 20th September, 1961. Ordinarily, it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. It, however, appears that delay took place even in obtaining the report of the Public Analyst, because the Public Analyst actually analysed the sample on 3rd October, 1961 and sent his report on 23rd October, 1961. It may be presumed that some delay in the analysis by the Public analyst and in his sending his report to the prosecution is bound to occur. Such delay could always be envisaged by the prosecution and consequently, the elementary precaution of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector. If such a precaution had been taken the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to enable the respondent to exercise his right under Section 13(2) of the Act without being handicapped by the deterioration of his sample. The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962 and no explanation is forthcoming when the complaint in Court was filed about seven months after the report of the Public Analyst has

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been issued by him. This is, therefore, clearly a case when the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution. In such a case, we think that the respondent entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecution."

20. In a catena of judgments, relied upon

by the counsel for the applicants, the Court has

laid down that the samples have to be tested by the

Central Laboratory before the expiry of shelf life of the

sample and if the shelf life of the sample

has expired, it causes prejudice. The

complaint therefore, stands vitiated for the sole reason that the applicants accused have

been deprived of their valuable rights, as

provided under the provisions of Section 16(2) of the

Seeds Act.

21. In view of the aforesaid discussion, this application

succeeds and is hereby allowed. The proceedings of the