Rafel Del Riyo Managing Director vs The State Of Karnataka
2022 Latest Caselaw 1906 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 8th DAY OF FEBRUARY 2022

                       BEFORE
                                                 R
       THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

           CRIMINAL PETITION NO.102512/2021

BETWEEN

RAFEL DEL RIYO,
MANAGING DIRECTOR, SYNGENTA INDIA LIMITED.,
HAVING ITS OFFICE AT SR NO. 110/11/3,
AMAR PARADIGM, BANER ROAD, NEAR SADANAND HOTEL,
PUNE, MAHARASHTRA-411045
                                          ...PETITIONER
(BY SRI HASMAITH PASHA, SR.
COUNSEL APPEARED FOR SRI N.S KINI, ADVOCATE)

AND

THE STATE OF KARNATAKA
THROUGH AGRICULTURAL OFFICER AND
SEEDS INSPECTOR, FARMER'S COMMUNICATION
CENTER, AGRICULTURAL DEPARTMENT
KAGINELE, BYADGI TALUK
HAVERI DISTRICT-581106
                                      ...RESPONDENT
(BY SRI RAMESH CHIGARI, HCGP )

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.PC., SEEKING TO CALL FOR THE RECORDS OF CC
NO.7/2021 FOR OFFENCE PUNISHABLE U/S 6(A) R/W SECTION
19(A) OF SEEDS ACT, 1966, PENDING ON THE FILE OF THE
COURT OF THE SENIOR CIVIL JUDGE AND JMFC BYADGI,
HAVERI DISTRICT AND UPON PERUSAL OF THE SAME BE TO
INTER-ALIA, TO QUASH THE SAID COMPLAINT ALONG WITH
SUMMONING ORDER DATED 16.03.2021 PASSED BY THE TRIAL
COURT AND ALL PROCEEDINGS AND ORDERS IN RELATION TO
                                 2
                                                 Crl.P.No.102512/21




THE SAID COMPLAINT AND TO PASS SUCH FURTHER OR
OTHER ORDERS AS THIS HON BLE COURT MAY DEEM FIT AND
PROPER IN THE FACTS AND CIRCUMSTANCE OF THE CASE.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:

                            ORDER

The petitioner in this petition calls in question the

proceedings in C.C.No.7/2021, pending before the Senior

Civil Judge & JMFC, Byadgi, Haveri District for offences

punishable under Section 6(a) read with Section 19(a) of the

Seeds Act, 1966 ('the Act' for short).

2. Brief facts, as projected by the prosecution, are as

follows:

The petitioner is in the business of production and

distribution of seeds. The other facts with regard to the

petitioner are not germane to be noticed in the case at hand.

On 12-11-2020, a product which is manufactured by the

petitioner was seized by the complainant from a dealer, Sri

Beereshwara Krishi Kendra, Kaginele for its analysis. After

lifting of the sample, the product that was seized was

allegedly found to be of sub-standard quality and the said

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seed was manufactured by M/s Syngenta India Limited ('the

Company' for short) which is a company registered under the

Companies Act. The sample collected was sent to a Seed

Analyst at the Seed Examination Centre, Dharwad on 12-11-

2020. The sample so sent by the complainant was received

by the Seed Analyst on 13-11-2020. On 4-12-2020 the said

Analyst sent his report concluding that the sample sent to

him by the complainant had germination of 81% as against

the prescribed germination of 98.6%. The sample was thus

declared "sub-standard". It is the claim of the petitioner

that the report of the said analyst was never furnished to

him. The seed had life of 9 months from the date of its

manufacture and was to expire on 18-02-2021.

3. On 2-03-2021, a show cause notice was issued by

the complainant to the Company/Syngenta India Limited

along with the report of the Seed Analyst, alleging that the

seed was sub-standard and sought a reply at the hands of

the Company to show cause as to why proceedings should

not be initiated against the Company. The show cause notice

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was received by the Company on 11-03-2021 long after

expiry of three days given to submit its reply. The Company

responded to the show cause notice on 30-03-2021 disputing

the findings of the Seed Analyst and placed on record several

violations of the provisions of the Act while collecting and

analyzing the sample that was submitted and also contended

that since collection and determination of seed was in

violation of the provisions of the Act, the entire process is a

nullity.

4. After filing the reply on 30-03-2021 neither the

Company nor the petitioner heard anything from the

complainant. The petitioner then received information

through accused Nos. 2 and 3, the dealers, that a complaint

was registered by the complainant in Complaint No.7 of 2021

before the competent Court by registering it on 6-03-2021.

On registration of the said complaint, the learned Magistrate

has taken cognizance of the offences punishable under

Sections 6 and 19 of the Act, which has driven the petitioner

to this Court calling in question the entire proceedings.

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5. Heard Sri Hasmath Pasha, learned senior counsel

representing the petitioner and the learned High Court

Government Pleader representing the respondent-State.

6. The learned senior counsel would urge the following

contentions:

(i) The petitioner is only a Managing Director of the Company. The Company ought to have been made a party to the proceedings and the proceedings are fatal in the absence of the Company being made a party.

(ii) He would contend that under Section 16 of the Act which deals with the report of the Seed Analyst, if the sample taken is against the interest of the Dealer, Trader or the Company they would have an opportunity to get a second opinion in the matter.

(iii) He would submit that the shelf life of the seed expired on 18-02-2021 but the show cause notice itself is issued after the expiry of the shelf life of the seed and the proceedings initiated long thereafter has caused prejudice and has vitiated entire proceedings.

7. The learned senior counsel would place reliance

upon the following judgments:

(i) MAKSOOD SAIYED v. STATE OF GUJARAT -

(2008) 5 SCC 668;

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(ii) ANEETA HADA v. GODFATHER TRAVELS AND

TOURS PRIVATE LIMITED - (2012) 5 SCC 661;

iii) RAVINDRANATH BAJPE v. MANGALORE SPECIAL

ECONOMIC ZONE LIMITED - (2021) SCC ONLINE

806;

iv) STATE OF HARYANA v. UNIQUE FARMAID

PRIVATE LIMITED - (1999) 8 SCC 190 &

v) THE MANAGING DIRECTOR, M/S ANUP PRODUCT

LIMITED v. STATE OF KARNATAKA - ILR 2001

KAR 5216.

8. On the other hand, the learned High Court

Government Pleader would refute the submissions and

contend that the petitioner is liable for the alleged sub-

standard quality of the seed and it is for the petitioner to

come out clean in the trial by producing such evidence which

would demonstrate the quality of the seed to the prescribed

germination. Since cognizance is already taken in the case at

hand, it is his submission that this Court should not

interfere and let the trial to go on.

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9. I have given my anxious consideration to the

submissions made by the learned senior counsel and the

learned High Court Government Pleader and have perused

the material on record. In furtherance whereof, the following

points arise for my consideration:

     (i)    Whether      the   complaint    was
            maintainable without the Company
            being   made    an accused   in the
            proceedings?

(ii) Whether the entire proceedings get vitiated on account of prejudice and violation of Section 16 of the Act?

10. Point No.(i): Whether the complaint was

maintainable without the Company being made an

accused in the proceedings?

11. It is not in dispute that the petitioner is the

Managing Director of Syngenta India Limited which is a

Company registered under the Companies Act, 1956. The

entire proceedings are initiated for offences punishable under

Sections 6(a) and 19(a) of the Act. Sections 6 and 19 and 21

of the Act read as follows:

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"6. The Central Government may, after consultation of the Committee and by notification in the Official Gazette, specify -

(a) the minimum limits of germination and purity with respect to any seed of any notified kind or variety:

(b) the mark or label to indicate that such seed conforms to the minimum limits of germination and purity specified under clause (a) and the particulars which marks or label may contain.

... ... ...

19. Penalty.--If any person--

(a) contravenes any provision of this Act or any rule made thereunder; or

(b) prevents a Seed Inspector from taking sample under this Act; or

(c) prevents a Seed Inspector from exercising any other power conferred on him by or under this Act, he shall, on conviction, be punishable--

(i) for the first offence with fine which may extend to five hundred rupees, and

(ii) in the event of such person having been previously convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

... ... ....

21. (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be

Crl.P.No.102512/21

guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub- section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. - For the purpose of this section,-

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm."

Section 6 deals with the minimum limit of germination and

purity with respect to any seed of any notified kind or variety.

Section 19 deals with penalty. Section 19(a) directs any

person indulging in acts contrary to any provisions of the Act

or the Rules would become liable for prosecution under the

Crl.P.No.102512/21

Act. Section 21 deals with offences by companies. Therefore,

the directors of the Company are also held to be vicariously

liable and become liable to be proceeded against and

punished.

12. It is not in dispute that the Company is not made a

party in these proceedings which is in violation of Section 21

(supra). The proceedings without, at the outset, the Company

being made a party would not be maintainable. The issue in

this regard need not detain this Court for long or delve

deeper in to the matter as identical provisions of the

Negotiable Instruments Act, 1881 have been interpreted by

the Apex Court in the case of ANEETA HADA1 (supra)

wherein the Apex Court has held as follows:

"53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company.

As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a

(2012) 5 SCC 661

Crl.P.No.102512/21

strict construction of the provision would be necessitous and, in a way, the warrant.

56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term "as well as" in the section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words "as well as" have to be understood in the context.

59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag- net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is

Crl.P.No.102512/21

overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove."

The said judgment in the case of ANEETA HADA has been

followed in plethora of cases by the Apex Court and this

Court. Section 21 of the Act , is in pari materia with section

141 of the Negotiable Instruments Act 1881 considered by

the Apex Court in the case of Aneeta Hada. Therefore, the

entire proceedings would stand vitiated as the complaint

itself, without at the outset the company being made a party,

would not be maintainable. Therefore, I answer the point

arising in favour of the petitioner.

13. Point No.(ii): Whether the entire

proceedings get vitiated on account of prejudice and

violation of Section 16 of the Act?

14. Seeds were collected from a dealer by the

complainant. The dealer is accused No.3. The sample was

collected or seized on 12-11-2020. The sample collected was

sent to the Analyst at the Seed Examination Centre in the

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Department of Agriculture, Government of Karnataka. The

sample that was sent by the complainant was received by the

Seed Analyst on 13-11-2020 as could be seen from the

documents appended to the petition. The Seed Analyst

submits his report on 4-12-2020 opining that germination of

the seed was at 81% as against the prescribed germination in

terms of Section 6 of the Act at 98.6%. The Seed Analyst

declared the seed to be "sub standard".

15. The seed that was taken during the search was

manufactured on 19-05-2020. The shelf life of that particular

seed was to expire on 18-02-2021. If the said Analyst had

submitted his report on 04-12-2020, nothing stopped the

respondent/complainant to take further proceedings in

accordance with law. After the life of the seed expired on 18-

02-2021, a show cause notice is issued to the Company to

show cause as to why proceedings should not be initiated for

sub-standard quality of the seed. After issuing a show cause

notice, a complaint is registered by the respondent/

complainant invoking Section 19 of the Act before the learned

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Magistrate at Byadagi and the learned Magistrate takes

cognizance of the offence.

16. It is now germane to notice the report of the Seed

Analyst and its aftermath. Section 14 of the Act deals with

powers of the Seed Inspector and Section 15 deals with the

procedure to be followed by the Seed Inspector. Therefore,

the power of seizure is available under Section 14 to a Seed

Inspector and the procedure to be followed after such seizure

is dealt with under Section 15. Sections 14 and 15 of the Act

read as follows:

"14. (1) The Seed Inspector may-

(a) take samples of any seed of any notified kind or variety from -

(i) any person selling such seed; or

(ii) any person who is in the course of conveying, delivering or preparing to deliver such seed to a purchaser or a consignee;

or

(iii) a purchaser or a consignee after delivery of such seed to him;

(b) send such sample for analysis to the Seed Analyst for the area within which such sample has been taken;

Crl.P.No.102512/21

(c) enter and search at all reasonable times, with such assistance, if any, as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed and order in writing the person in possession of any seed in respect of which the offence has been or is being committed, not to dispose of any stock of such seed for a specific period not exceeding thirty days or, unless the alleged offence is such that the defect may be removed by the possessor of the seed, seize the stock of such seed;

(d) examine any record, register, document or any other material object found in any place mentioned in clause (c) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act; and

(e) exercise such other powers as may be necessary for carrying out the purposes of this Act or any rule made thereunder.

(2) Where any sample of any seed of any notified kind or variety is taken under clause (a) of sub-section (1), its cost, calculated at the rate at which such seed is usually sold to the public, shall be paid on demand to the person from whom it is taken.

(3) The power conferred by this section includes power to break-open any container in which any seed of any notified kind or variety may be contained or to break-open the door of any premises where any such seed may be kept for sale:

Provided that the power to break-open the door shall be exercised only after the owner or any other person in occupation of the premises, if he is present

Crl.P.No.102512/21

therein, refuses to open the door on being called upon to do so.

(4) Where the Seed Inspector takes any action under clause (a) of sub-section (1), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures on a memorandum to be prepared in the prescribed form and manner.

(5) The provisions of the Code of Criminal Procedure, 1898 (5 of 1898), shall, so far as may be, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under section 98 of the said Code.

15. (1) Whenever a Seed Inspector intends to take sample of any seed of any notified kind or variety for analysis, he shall-

(a) give notice in writing, then and there, of such intention to the person from whom he intends to take sample;

(b) except in special cases provided by rules made under this Act, take three representative samples in the prescribed manner and mark and seal or fasten up each sample in such manner as its nature permits.

(2) When samples of any seed of any notified kind or variety are taken under sub-section (1), the Seed Inspector shall-

(a) deliver one sample to the person from whom it has been taken;

(b) send in the prescribed manner another sample for analysis to the Seed Analyst for

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the area within which such sample has been taken; and

(c) retain the remaining sample in the prescribed manner for production in case any legal proceedings are taken or for analysis by the Central Seed Laboratory under sub-section (2) of section 16, as the case may be.

(3) If the person from whom the samples have been taken refuses to accept one of the samples, the Seed Inspector shall send intimation to the Seed Analyst of such refusal and thereupon the Seed Analyst receiving the sample for analysis shall divide it into two parts and shall seal or fasten up one of those parts and shall cause it, either upon receipt of the sample or when he delivers his report, to be delivered to the Seed Inspector who shall retain it for production in case legal proceedings are taken.

(4) Where a Seed Inspector takes any action under clause (c) of sub-section (1) of section 14:

(a) he shall use all despatch in ascertaining whether or not the seed contravenes any of the provisions of section 7 and if it is ascertained that the seed does not so contravene, forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock of the seed seized;

(b) if he seizes the stock of the seed, he shall, as soon as may be, inform a magistrate and take his orders as to the custody thereof;

(c) without prejudice to the institution of any prosecution, if the alleged offence is such that the defect may be removed by the

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possessor of the seed, he shall, on being satisfied that the defect has been so removed, forthwith revoke the order passed under the said clause.

(5) Where as Seed Inspector seizes any record, register, document or any other material object under clause (d) of sub-section (1) of section 14, he shall, as soon as may be, inform a magistrate and take his orders as to the custody thereof."

(Emphasis supplied)

After transmission of the seed to the Seed Analyst by the

Seed Inspector in terms of Section 15, the Seed Analyst is

required to prepare a report under Section 16. Section 16 of

the Act runs as follows:

"16. (1) The Seed Analyst shall, as soon as may be after the 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 intact and may then despatch the sample under its own seal to the Central Seed

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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 produce any sample or part thereof taken for analysis."

(Emphasis supplied)

17. In terms of Section 16, the Seed Analyst shall as

soon as possible on receipt of sample prepare a report of the

sample and furnish the same to the Seed Inspector and

another copy thereof to the person from whom the sample

was taken. Sub-section (2) of Section 16 grants liberty to the

accused after institution of the prosecution under the Act, on

payment of a prescribed fee, to make an application to the

Court for sending any of the sample to a Central Seed

Laboratory for its report and on receipt of such application,

the Court will ascertain the mark and seal or fastening and

may then despatch the sample under its own seal to the

Central Seed Laboratory. The purport of sub-section (2) of

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Section 16 is, after institution of the prosecution the accused

will have liberty to get the sample verified and tested for the

second time by the Central Seed Laboratory, which would be

a second opinion, resulting in vindication of the stand of the

prosecution or the accused. Therefore, sub-section (2) of

Section 16 assumes great significance, as it can either save

the accused from the prosecution or result in the prosecution

continuing with the trial.

18. It is germane to consider the dates noticed

hereinabove. The date of collection of sample is 12-11-2020.

The Seed Analyst gave his report on 4-12-2020. The life of

the seed was till 18-02-2021. All these are undisputed facts.

After the life of the seed itself had expired by the time

prosecution was launched which was on 16-03-2021 the

right of the accused to get the seed re-assessed by the

Central Seed Laboratory under sub-section (2) of Section 16

is rendered illusory. An important right of the accused is

taken away by the callous action on the part of the

prosecution. If the life of the seed had expired, the seed

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cannot be sent for a second opinion by the Central Seed

Laboratory. It ought to have been done prior to the expiry of

life of the seed. Therefore, taking away the right under sub-

section (2) of Section 16 has caused great prejudice to the

petitioner or even the Company against whom the notice is

issued.

19. It is trite law that procedural violation causing

prejudice will have to be construed strictly and it cannot be

said that trial should continue notwithstanding the right

under sub-section (2) of Section 16 being taken away by

indolence of the respondent/complainant. Reference made to

the judgment of the Apex Court in the case of UNIQUE

FARMAID PRIVATE LIMITED2 (supra) in the circumstances

is apposite. In the said case the Apex Court holds as follows:

"11. Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of 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 certainly has the right to seek dismissal of the complaint. There cannot be two opinions about that.

(1999) 8 SCC 190

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Then in order to safeguard the right of the accused to have the sample tested from the Central Insecticides 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. This issue is no longer res integra. In State of Punjab v. National Organic Chemical Industries Ltd. [(1996) 11 SCC 613 : 1997 SCC (Cri) 312 : JT (1996) 10 SC 480] this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have the sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost despatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal [(1998) 5 SCC 343 : 1998 SCC (Cri) 1315] under the Drugs and Cosmetics Act, 1940, Municipal Corpn. of Delhi v. Ghisa Ram [AIR 1967 SC 970 : (1967) 2 SCR 116] , Chetumal v. State of M.P. [(1981) 3 SCC 72 : 1981 SCC (Cri) 632] and Calcutta Municipal Corpn. v. Pawan Kumar Saraf [(1999) 2 SCC 400 : 1999 SCC (Cri) 218] all under the Prevention of Food Adulteration Act, 1954."

(Emphasis supplied)

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The Apex Court in the afore-extracted judgment was

interpreting Insecticides Act, 1968 , provisions of which are

in pari materia with that of the Seeds Act. The Apex Court

has clearly held that the right of the accused to get the

sample tested again, a right that is conferred under the

Insecticides Act gets deprived if the proceedings are not

initiated without any loss of time. The Apex Court further

holds that the accused had been deprived a valuable right

statutorily available to him and order obliteration of criminal

proceedings against the accused therein. The aforesaid

judgment of the Apex Court in the case of UNIQUE FARMAID

is followed by this Court again interpreting Insecticides Act in

THE MANAGING DIRECTOR, M/S ANUP PRODUCT

LIMITED3's case (supra) wherein a learned single Judge of

this Court holds as follows:

"2. The alleged offence pertains to the material, trade name of which is ANUFEM and the commercial name is FENVALRATE. Certain undisputed facts may be set out. Purchase was made on 28.11.1994. It was sent for analysis to the Insecticides Control Laboratory at Bellary on 29.11.1994. The Analyst tested it on

ILR 2001 KAR 5217

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9.12.1994 and opined that the sample does not conform to the set standard.

Sub-section (2) of Section 24 of the Act requires that a copy of the said report shall be delivered by the Insecticide Inspector to the person from whom the sample was taken. In pursuance of the said requirement under sub-section (2), a copy was delivered on 27.1.1995. As per sub-section (3) of Section 24 of the Act, the above said report of the insecticide Analyst would be conclusive, unless, within 28 days of the receipt of the notice under sub-section (4), the person concerned notifies to the Insecticide Inspector in writing about his intention to adduce evidence in controversion of the said report. Within the said period of 28 days, the Insecticide Inspector was intimated in writing by the communication dated 20.2.1995. Sub-section (4) of Section 24 inter alia provided that, where sample has not already been tested or analysed in the Central Insecticides Laboratory, like in the present case where it was in a Laboratory other than the Central Insecticides Laboratory, and where a person has under sub-section (3) notified his intention of adducing evidence in controversion of the Insecticides 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 Section 22(6) of the Act to be sent for analysis to the Central Insecticides Laboratory, and the result thereof shall be conclusive evidence of the facts stated therein. With this right accrued to the petitioners to have the sample tested in the Central Insecticides Laboratory and thereby to adduce evidence in controversion of the report earlier issued by the Insecticide Analyst, it was to be expected that the prosecution would be launched at the earliest, at any rate, before the shelf life of the material concerned would expire, and to have the sample tested by the Central Insecticides Laboratory, the reason being that,

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without launching of the prosecution, the Court would not be seized of the matter in order to decide under sub-section (4) of Section 24 of the Act in the matter of sending the sample to the Central Insecticides Laboratory. It is therefore to be expected that, prosecution will be launched expeditiously, at any rate before the expiry of the shelf life of the material concerned. It so happened that while shelf life of the material concerned expired in February 1995, complaint itself came to be lodged in December 1995.

The Supreme Court happened to deal with a similar situation and this is what the Supreme Court said in this regard in State of Haryana v. Unique Farmaid P. Limited. [ 1999 (3) CC. Cases (SC) 101.]

"Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides 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, expiry date of the insecticide was already over the sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In the State of Punjab v. National Organic Chemical Industries Ltd., (JT 1996 (10) SC 480) this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of valuable rights statutorily available to him. On this

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view of the matter, the Court did not allow the criminal complaint to proceed against the accused. We have cases under Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involved in the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brijlal Aiitlal [(1998) 5 SCC 343] under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram (AIR 1967 SC

970); Chenmal v. State of Madhya Pradesh [(1981) 3 SCC 72]; and Calcutta Municipal Corporation v. Pawan Kumar Saraf [(1999) 2 SCC 400] all under the Prevention of Food Adulteration Act of 1954.

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 and sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24, report signed by the Inseclicildes 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 Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases, Insecticides 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 Insecticides Analyst, therefore, not conclusive. A valuable right had been conferred on the accused to have to 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.

In these circumstances, High Court was right in concluding that it will be an abuse of the process of the Court if the prosecution is

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continued against the respondents - the accused persons. High Court rightly quashed the criminal complaint. We uphold the order of the High Court and would dismiss the appeals."

(Emphasis supplied)

In the light of the facts obtaining as afore-narrated and the

judgments of the Apex Court extracted hereinabove, both

with regard to the Company not being made a party and the

entire proceedings getting vitiated on account of prejudice

being caused to the accused, in my considered view, this is a

fit case where this Court has to exercise its jurisdiction

under Section 482 of the Cr.P.C. and obliterate the

proceedings against the petitioner, failing which such

proceedings would become an abuse of the process of the law

and result in miscarriage of justice.

20. Before parting with the case, it may not be inapt, to

observe that plethora of cases are brought before the Court,

like the case at hand, wherein prosecution is launched after,

either the period of limitation is over or where the right of the

accused available in the statute gets extinguished, by sheer

inaction on the part of the respective departments. The Apex

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Court in the case of PEPSI FOODS LTD. V. SPECIAL

JUDICIAL MAGISTRATE4, has observed as follows:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course."

Criminal law is set in motion by the departments particularly

empowered to launch prosecution against the violators of the

provisions of the respective enactments, as a matter of

course, as is done in the case at hand. It is therefore, the

head of such Departments should endeavour to put their

house in order and direct the officers empowered to initiate

or launch prosecution, if they chose to do so, to do so

without any loss of time, as "administrative indolence

cannot be and should not be countenanced".

21. For the aforesaid reasons, I pass the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The impugned proceedings in C.C.No.

7/2021 pending before the Senior Civil

(1998) 5 SCC 749

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Judge & JMFC, Byadgi, Haveri District

stands quashed qua the petitioner.

(iii) The Registry is directed to transmit a copy

of this order to the Chief Secretary,

Government of Karnataka for necessary

steps to be taken with regard to the

observations in the course of the order.

SD/-

JUDGE Vb/-