Madras High Court
Bio-Stadt India Ltd vs Namakkal District on 10 December, 2021
Crl. O.P. No.8428 & 12205 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 10.12.2021
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. Nos.8428 and 12205 of 2017 and
Crl. M.P.Nos.6030, 6031, 7971 and 7972 of 2017
Bio-Stadt India Ltd.,
SIDCO Industries Complex
Lane – 3, Bari – Brahmana
Jammu & Kashmir – 181 133
Represented by its Sales Unit Lead
Mr.V.Jegatheesan ...Petitioner in Crl.O.P.No.8428 /2017
/2nd Respondent
Syngenta India Ltd.,
Represented by its Sales Unit Lead
Mr.R.Nagarajan
S/o.A.Ramu
Amar Paradigm
S.No.110/11/3, Baner Road
Pune – 411 045 ... Petitioner in Crl.O.P.No.12205/2017
/ 3rd Respondent
Versus
The State of Tamil Nadu
By Agriculture Officer
Namagiripettai
RasipuramTaluk
1/12
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Crl. O.P. No.8428 & 12205 of 2017
Namakkal District
(The present Agriculture Officer
Tmt.A.Umamaheswari) ....Respondent/Petitioner
in both Crl.O.Ps
Common Prayer: Criminal Original Petitions filed under Section 482 of
Cr.P.C. to call for the records relating to the proceedings in S.T.C.No.739 of
2016 on the file of the learned Judicial Magistrate, Rasipuram and quash the
same as devoid of merits as against the petitioners.
For Petitioners
in both OPs ... Mr.M.Purusothaman
For Respondents ... Mr.R.Kishore Kumar
in both OPs Government Advocate (Crl.side)
------
COMMON ORDER
These Criminal Original Petition have been filed to quash the
proceedings in S.T.C.No.739 of 2016 pending on the file of the Judicial
Magistrate Court, Rasipuram.
2. It is case of the prosecution that on 18.08.2015, the Agricultural
Officer lifted the samples of insecticide known as “Curacron” (Profenofos)
from the shop of Ponny Agro Service, Mangalapuram and divided them into
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Crl. O.P. No.8428 & 12205 of 2017
three parts. Out of the three parts, one sample was handed over to the
owner of the shop, second sample was sent to the Court and third sample
was sent to the Insecticide Analyst. The report of the Analyst was received
on 16.09.2015 stating that the sample referred to in the report is of
misbranded quality resulting in the issuance of a show-cause notice dated
25.09.2015 to the petitioners herein calling for explanation. The respondent,
not being satisfied with the reply submitted by the petitioners, filed a private
complaint before the Court for the offence under Section 29 (a) of the
Insecticides Act, 1968.
3. It is the main contention of the learned counsel appearing for the
petitioners that the petitioners being the manufacturer and dealer, no report
from the referral laboratory has been served on them at the earlier point of
time to enable them to have the second sample tested from the Central
Laboratory. It is further submitted that the prosecution has not been
launched immediately and it has been launched only in the year 2016, by
that time the insecticide has expired and therefore, when the right to have
the second sample tested has been denied, the continuation of prosecution
against these petitioners is nothing but an abuse of process of law. Learned
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Crl. O.P. No.8428 & 12205 of 2017
counsel further submitted that the sanction has been accorded by the
concerned authority mechanically as the accused has not been named in the
sanction order and such sanction is not valid in the eye of law. In sum and
substance, it is the submission of the learned counsel for petitioners that the
petitioners being the manufacturer and dealer, they cannot be prosecuted
when the opportunity to have the second sample tested has been lost by the
act of the complainant and the sanction accorded by the Authority also does
not contain the name of these petitioners and therefore, the learned counsel
prayed for quashing of the complaint. In support of his contention, the
learned counsel relied on a judgment of the Hon'ble Supreme Court in
Northern Minerals Limited and others Vs. Rajasthan Government and
Another reported in (2016) 12 SCC 298, a judgment of High Court of
Rajasthan in M/s.S.N.Chemicals Vs. State of Raj. & Ors. reported in 1999
SCC Online Raj 733 and an order of this Court dated 22.11.2021 made in
Crl.O.P (MD) No.2258 of 2019 [Sh.Jaikumar Sedha Vs. J.Chandrakala,
Agricultural Officer].
4. Heard the learned Government Advocate (Crl.side) on the above
submissions.
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Crl. O.P. No.8428 & 12205 of 2017
5. The learned Government Advocate (Crl.side) submitted that the
show-cause notice has been issued to the manufacturer and dealer within the
stipulated time, but they failed to avail the opportunity of having the second
sample tested and therefore, the petitioners cannot now be heard to contend
that the opportunity was not given to them to have the second sample tested
and he opposed for quashing of the complaint.
6. This Court perused the entire materials available on record.
7. As pointed out supra, the sample was lifted on 18.08.2015. It is
relevant to note that the present petitioners are manufacturer and dealer. It
is clear from Annexure IV enclosed in the typed-set of papers that the date
of manufacture of the sample lifted was on 12.09.2014 and the date of
expiry was on 11.09.2016. The entire prosecution has proceeded on the
basis that the sample of the insecticide known as “Curacron” (Profenofos) is
a misbranded one. It is relevant to mention that the prosecution ought to
have been initiated within a period well before the expiry of the product. In
the cases on hand, it is not in dispute that the Insecticide Inspector having
lifted the sample on 18.08.2015 and analyst report being received on
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Crl. O.P. No.8428 & 12205 of 2017
25.09.2015, the prosecution has been launched with inordinate delay on
29.08.2016. Section 22 of the Insecticides Act, 1968 deals with procedure
to be followed by the Insecticide Inspector. Sub-section (5) of Section 22 of
the said Act makes it clear that where an Insecticide Inspector takes the
sample of any insecticide for the purpose of test or analysis, he shall intimate
such purpose in writing in the prescribed form to the person from whom he
takes it and in the presence of such person unless he wilfully absents
himself, shall divide the sample into three portions and effectively seal and
suitably mark the same and permit such person to add his own seal and
mark to all or any of the portions so sealed and marked. Sub-section (6) of
Section 22 of the said Act also makes it clear that one portion of the sample
so divided can be handed over to the person from whom the sample is seized
and from the remaining two portions, one shall be sent to the Insecticide
Analyst for test or analysis and the other portion shall be produced before
the Court where the proceedings is being initiated in respect of such
insecticide. Section 24 of the Act deals with the report of Insecticide
Analyst. After receipt of the analysis report, it is the duty of the Insecticide
Inspector to deliver one copy of the report to the person from whom the
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Crl. O.P. No.8428 & 12205 of 2017
sample was taken. On such delivery of report, an option is given to the
person from whom the sample is taken to inform the Insecticide Inspector or
the Court that he intends to adduce evidence in controversion of the report.
Absolutely, no material is available on record to show that the analysis
report has been sent either to the manufacturer or to the dealer in these
cases. The purpose of sending such copy to the person against whom
prosecution is initiated is to have a second opinion from the accredited
Central Laboratory. It is not the case of the prosecution that such a report
has been sent to the petitioners herein immediately after the receipt of the
report from the Laboratory. Not stopping with that, one more opportunity is
also available to the parties to have the second sample tested if the
prosecution is launched without any delay and in such case also, at the
request of the party, the Court can send the second sample for examination
by the Central Laboratory. Admittedly, in these cases, the prosecution has
been launched on 29.08.2016. According to the learned counsel for
petitioners, though the first hearing was fixed by the learned Magistrate on
13.10.2016, the petitioners did not receive any summons and by that time,
insecticide got expired on 11.09.2016. Such being the position, the right to
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Crl. O.P. No.8428 & 12205 of 2017
have the second sample tested has been totally denied by the lack of time
and also delay in initiating the prosecution. Therefore, if the sample is sent
after the summons have been served, no purpose would be served.
Therefore, when the very right granted under the Statute has been denied,
the continuation of prosecution against such person is nothing but abuse of
process.
8. Yet another flaw that cannot be ignored altogether is that the
sanctioning authority has accorded a sanction without even naming the
accused and initially the sanction has been accorded on 09.05.2016.
Thereafter, on 29.08.2016 the complaint has been filed. Therefore, this
Court is of the view that right of the petitioners to have the re-analysis of the
sample was taken away by lapse of time due to delay in filing the complaint
and the shelf-life of the sample also got expired and hence, continuation of
prosecution against these petitioners is nothing but a abuse of process of law
and the same is liable to be quashed.
9. In S.N.Chemicals case (cited supra), Rajasthan High Court has
held in paragraph 8 that in the absence of details of the accused in the
sanction order, such sanction cannot be held to be valid in the eye of law. In
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Crl. O.P. No.8428 & 12205 of 2017
Crl.O.P (MD) No.2258 of 2019, this Court vide order dated 22.11.2021
held that due to lapse of time, the right to have the second sample tested is
also lost, hence the complaint is not maintainable. In Northern Minerals
Limited case cited supra, the Hon'ble Supreme court has held that the 28
days time period for second sample tested after receipt of the show-cause
notice apply only to the person from whom the sample is lifted and not
applicable to the other accused proceeded against and held that the vital right
vested in the accused to get the sample re-tested to controvert the report of analysis
of the sample obtained by the Insecticide Inspector, stood frustrated and the
prosecution cannot succeed. The relevant paragraph is paragraph 13 and the same
reads as follows:
'13. Insofar as the contention of the learned counsel for the
respondents in distinguishing the right of the person from whom
the sample was taken, as mandated under Section 24(3) is
concerned, we need only refer to sub-Section (4) of Section 24 of
the Act which extends the above right, even to the complainant and
the accused. Read harmoniously, therefore, we have no hesitation
to conclude, that insofar as the person from whom the sample was
taken, the right to raise an objection is circumscribed by requiring
him to indicate his intention to do so within 28 days of the receipt
of the copy of the report. There is however no such limitation of
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Crl. O.P. No.8428 & 12205 of 2017
time placed by the legislature on the complainant and/or the other
accused proceeded against. In the above view of the matter,
insofar as the present appeal is concerned, we find, that a vital
right vested in the appellants/accused to get the sample re-tested
(from the Central Insecticides Laboratory), to controvert the
report of analysis of the sample obtained by the Insecticide
Inspector, stood frustrated. The appellants have lost the right to
disprove their guilt. The appellants cannot be proceeded against,
when they have, for no fault of their own, lost a vital right of
defence. We are satisfied to conclude, that under sub-Section (4) of
Section 24 of the Act, an accused other than a person from whom
the sample is taken, also has a right to adduce evidence in
controversion of the Insecticide Analysit's Report, and in case the
accused avail of the above right under sub-Section (4) of Section
24, he must bear the expenses of the test or analysis, to be made by
the Central Insecticides Laboratory (under sub-Section 5 of
Section 24).
Accordingly, these Criminal Original Petitions are allowed and the
proceedings in S.T.C.No.739 of 2016 on the file of the learned Judicial
Magistrate, Rasipuram is quashed. Consequently, the connected
miscellaneous petitions are closed.
10.12.2021
gpa/gba
https://www.mhc.tn.gov.in/judis
Crl. O.P. No.8428 & 12205 of 2017
https://www.mhc.tn.gov.in/judis
Crl. O.P. No.8428 & 12205 of 2017
N. SATHISH KUMAR, J
gpa/gba
To
3. The Public Prosecutor
Madras High Court
Chennai.
Crl. O.P. Nos.8428 and 12205 of 2017 and
Crl. M.P.Nos.6030, 6031, 7971 and 7972 of 2017
10.12.2021
https://www.mhc.tn.gov.in/judis
