Madras High Court
Bio-Stadt India Ltd vs Tmt.V.Malarkodi on 10 December, 2021
Crl. O.P. Nos.2356 and 11792 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.2356 and 11792 of 2017 and
Crl. M.P.Nos.1670, 1671, 7736 and 7737 of 2017
Bio-Stadt India Ltd.,
Lane – 3, SIDCO Industries Complex
Bari – Brahmana
Jammu & Kashmir – 181 133
Represented by its Sales Unit Lead
Mr.V.Jegatheesan ..Petitioner in
Crl.O.P.No.2356/2017/2nd 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.11792 /2017
/3rd Respondent
Versus
The State of Tamil Nadu
By Agriculture Officer
Kabilar Malai
Namakkal District
(The present Agriculture Officer
1/11
https://www.mhc.tn.gov.in/judis
Crl. O.P. Nos.2356 and 11792 of 2017
Tmt.V.Malarkodi ....Respondent/Petitioner
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.653 of
2016 on the file of the learned Judicial Magistrate, Paramathi and quash the
same as devoid of merits as against the petitioners.
For Petitioner ... Mr.M.Purusothaman
For Respondents ... Mr.R.Kishore Kumar
Government Advocate (Crl.side)
------
COMMONORDER
This application has been filed to quash the proceedings in
S.T.C.No.653 of 2016 pending on the file of the Judicial Magistrate Court,
Paramathi.
2. It is case of the prosecution that on 03.12.2015, the Agricultural
Officer lifted the samples of insecticide known as “Curacron” (Profenofos)
from the shop of Sri Murugan Farmers Association, Kabilarmalai and divided
them into 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 15.12.2015 stating that the sample referred to in the report is of
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Crl. O.P. Nos.2356 and 11792 of 2017
misbranded quality resulting in the issuance of a show-cause notice dated
23.12.2015 to the petitioner herein calling for explanation. The respondent,
not being satisfied with the reply submitted by the petitioner, 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 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
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Crl. O.P. Nos.2356 and 11792 of 2017
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.
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
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Crl. O.P. Nos.2356 and 11792 of 2017
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 03.12.2015. 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 06.10.2014 and the date of expiry
was on 05.10.2016. 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 03.12.2015 and analyst report being received on 15.12.2015,
the prosecution has been launched with inordinate delay on 20.07.2016.
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
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Crl. O.P. Nos.2356 and 11792 of 2017
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 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
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Crl. O.P. Nos.2356 and 11792 of 2017
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 20.07.2016. According to the
learned counsel for petitioners, though the first hearing was fixed by the
learned Magistrate on 21.09.2016, the petitioners did not receive any
summons and the insecticide itself got expired on 05.10.2016. Such being the
position, the right to 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.
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Crl. O.P. Nos.2356 and 11792 of 2017
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 02.05.2016.
Thereafter, on 20.07.2016 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
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
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Crl. O.P. Nos.2356 and 11792 of 2017
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 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
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Crl. O.P. Nos.2356 and 11792 of 2017
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.653 of 2016 on the file of the learned Judicial
Magistrate, Paramathi is quashed. Consequently, the connected
miscellaneous petitions are closed.
10.12.2021
gpa/gba
https://www.mhc.tn.gov.in/judis
Crl. O.P. Nos.2356 and 11792 of 2017
N. SATHISH KUMAR, J
gpa/gba
To
3. The Public Prosecutor
Madras High Court
Chennai.
Crl. O.P. Nos.2356 and 11792 of 2017 and
Crl. M.P.Nos.6030, 6031, 7736 and 7737 of 2017
10.12.2021
https://www.mhc.tn.gov.in/judis
