Madras High Court
Sh.Jaikumar Sedha vs J.Chandrakala on 22 November, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.11.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.2258 of 2019
and
Crl.MP(MD)Nos.1206 and 1207 of 2019
Sh.Jaikumar Sedha : Petitioner/1st Respondent
Vs.
J.Chandrakala
Agriculture Officer,
Thiruchuzhi @ M.Reddiapatti : Respondent/Complainant
Prayer: Criminal Original Petition is filed under Section 482
Cr.P.C., to call for the records relating to the proceedings in STC
No.358 of 2018 on the file of the Judicial Magistrate, Aruppukottai
and quash the same as devoid of merits as against the petitioner.
For Petitioner : Mr.M.Kannan
For Respondent : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis
2
ORDER
This petition is filed by the petitioner seeking quashment of
the case in STC No.358 of 2018 on the file of the Judicial
Magistrate, Aruppukottai.
2.The case of the prosecution in brief:-
On 12.08.2015, the Agricultural Officer/Insecticides Inspector
lifted samples from the shop of Sri Ayyanar Traders Insecticides
Shop, Kalloorani and the insecticides called branded as Profenofos
50% E.C insecticide (100 ML). One part of the sample was handed
over to the owner of the shop namely Muniyappan and the 2 nd
sample was sent to the Insecticides Analyst, PTL, Vaigai Dam,
Theni District. The analyst gave a report in Form XVII, dated
12.09.2015 opined that it is misbranded quality, which does not
satisfy the requirement of the standard that has been prescribed in
section 3(K)(i) of the Insecticides Act, 1968.
3.Based upon the above said report, the Assistant Director of
Agriculture, M.Reddiapatti issued a show cause notice, dated
23.06.2016 calling for explanation, which was received by the
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petitioner, on 05.07.2016 and reply was given, on 07.07.2016.
They also intended to send another sample for re-analysis to the
Central Insecticides Laboratory, Faridabad. The allegation in the
show cause notice was repudiated by the petitioner. But without
sending the samples for reanalysis, the complaint has been filed
before the trial Court on 22.11.2017 and it was taken on file on
22.02.2018 and in the meantime, it was returned for rectifying
some defects. The shelf life period of the insecticide expired on
01.12.2016. Beyond the period of shelf life period, the private
complaint has been filed.
4.Challenging the said complaint, this petition has been filed
by the petitioner mainly on the ground that it has been mentioned
in the grounds of this petition that sanction that has been accorded
by the concerned authority is invalid under law, because of non
application of mind. The manufacturing Company has not been
impleaded as a party in the criminal proceedings. No opportunity
was given to the petitioner for exercising his right of re-analyzing
the insecticides. So there is a clear violation of the statutory
provisions. So for all the reasons, the proceedings initiated by the
respondent sought to be quashed as illegal.
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5.Heard both sides.
6.A simple question of legal issue that has been raised by this
petitioner, which requires to be answered in the light of the various
judgments rendered by the Hon'ble Supreme Court and that too
which is now become more or less well settled.
7.It is not in dispute that the sample was lifted from Sri
Ayyanar Traders Insecticide Shop, Kalloorani, which was branded
as Profenofos 50% E.C Insecticide (100 ML) and that was
manufactured and has been distributed through various Agencies
and finally, it reached the hands of Sri Ayyanar Traders Insecticide
Shop, Kalloorani, for being sold to the customers directly. So being
the manufacturer of the above said insecticides, this petitioner has
been arrayed as A1. A2 and A3 were the intermediation agencies or
the distributors as the case may be. A4 is one S.Muniyappan, who
is the owner of the above said Ayyanar Traders Insecticide Shop,
Kalloorani. So as per law, not only the manufacturer, but also the
other distributors and sellers have been arrayed as accused and
this petition has been filed only by the manufacturer, who is A1 in
the above said private complaint.
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8.Now coming back to the legal issue, the learned counsel
appearing for the petitioner would straightway go to the report of
the analysis in PTL-THN.25/2015-16, dated 12.09.2015, wherein it
has been stated that the sample was received by the laboratory on
14.08.2015, which was manufactured on 02.12.2014 and it was
analyzed on 11.09.2015 and the expiry date is mentioned as 1st
December 2016. So it appears that hardly 30 days before the
expiry of the shelf life period of the insecticides, it was analyzed.
Sample was lifted on 12.08.2015 and analyzed on 11.09.2015.
There is no delay. But but shelf life period is mentioned as 1st
December 2016. In the report, it has been mentioned that as per
the prescribed Indian Standard of the insecticides, the acidity of
the sample exceeds by 0.27% as against the prescribed value of
1.0%. Since it does not satisfy the requirement of the standard
prescribed, it has been classified as “misbranded”. Now the
manufacturer, who is the petitioner herein made a request for
reanalysis on 7th April 2016. But that was rejected, by letter, dated
23.07.2016 (it has been wrongly mentioned as 26.07.2016). The
request has been rejected stating that since the request has been
made beyond the prescribed period, the request has been rejected.
So he was directed to send response for misbranding. So after the
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above said rejection of the reanalysis request, a complaint has been
filed before the Magistrate Court, on 22.11.2017. But as mentioned
above, it has been returned for rectification of defects and finally, it
has been taken cognizance on 22.12.2018.
9.From the chronological events, shows that it has been filed
before the court concerned only after the shelf life insecticide
period was over I.e., the shelf life period expired on 1st December
2016. It has been presented before the court on 22.07.2017, which
means beyond the shelf life period of insecticide. The legality of
taking cognizance, as mentioned earlier, has been questioned by
the petitioner in view of the settled position of law.
10.We will straightaway go away in the case of Northern
Mineral Limited Vs. Union of India and another [(2010)7
SCC 726]. In that case, sample was lifted on 10.09.1993. It was
sent to the laboratory for analysis and the report was given on
13.10.1993. The notice report was sent to the accused on
01.11.1993 and on 17.11.1993, the accused intimated his intention
to adduce evidence in contravention of the report shelf life period
expired on 1st February 1994. The permission to file complaint was
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given on 23.02.1994 and the complaint was filed only on
16.03.1994. The Hon'ble Supreme Court by going through the
various provisions and Acts and previous judgments of that issue,
has observed that after receiving the report from the analyst,
within 28 days of the receipt of the copy, the accused must notify in
writing, either to the Inspector or the Court expressing his
intention to adduce evidence in contravention of the report. After
receiving such a request, it is obligatory on the part of the Court or
the Officer, the sample must be sent to the laboratory within 30
days for analysis. So what was the Hon'ble Supreme Court,
observed that when such a request has been notified by the
accused, then it is obligatory on the part of the complainant to
respond, it is sufficient for passing the criminal prosecution. The
Hon'ble Supreme Court has also notified the usual manner in
which, the matter has been dealt with by the authorities. So here
also, the complaint has been filed, much after the period of the
shelf life period. Originally, the show cause notice has been issued
by the authorities on 15.09.2015 to the Ayyanar Traders and to this
petitioner. The reply of this petitioner seeking reanalysis has been
made before the expiry of the shelf life period of the drug. As
mentioned above, due to lapse of time, it has been rejected.
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Having rejected the request that has been made by the complainant
ought to have filed before the concerned court immediately, so that
another opportunity might have been available to the petitioner to
make the request to the court to send the sample for reanalysis.
But that right has been rejected to the petitioner by way of filing
criminal prosecution. Since the main issue has been answered in
favour of the petitioner, the other issues need not be taken into
consideration. So, as pointed out by the Hon'ble Supreme Court,
since the complaint has been filed much after the expiry of the shelf
life period of the insecticide, the prosecution is bad in law and is
required to be quashed.
11.Accordingly, this criminal original petition stands allowed.
The case in STC No.358 of 2018 pending on the file of the Judicial
Magistrate, Aruppukottai is quashed. Consequently, connected
Miscellaneous Petitions are closed.
22.11.2021
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall be
the responsibility of the
advocate/litigant concerned.
To,
1.The Judicial Magistrate,
Aruppukottai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
Crl.OP(MD)No.2258 of 2019
22.11.2021
https://www.mhc.tn.gov.in/judis
