Bio-Stadt India Ltd vs Agriculture Officer
2023 Latest Caselaw 11251 Mad

                                                                           Crl.O.P(MD).No.3600 of 2020

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   Dated : 25.08.2023

                                                            CORAM:

                                  THE HONOURABLE MR. JUSTICE P. DHANABAL
                                              Crl.O.P(MD).No.3600 of 2020


                 Bio-Stadt India Ltd,
                 Poonam Chambers, A Wing, 6th Floor,
                 Dr.A.B.Road, Worly,
                 Mumbai – 400 018,
                 Rep. by its Territory Manager,
                 Balakumaran, M/36 Years,
                 S/o.C.Baskaran                                                ...Petitioner

                                                       Vs

                 Agriculture Officer,
                 O/o. Asst. Director of Agriculture,
                 Musiri,
                 Trichy District – 621 211.                                    ...Respondent

                 PRAYER: Criminal Original Petition filed under Section 482 of the Code of
                 Criminal Procedure, praying this Court to call for the records relating to the
                 proceedings in S.T.C.No.195 of 2017 on the file of the learned Judicial
                 Magistrate, Musiri and quash the same as devoid of merits as against the
                 petitioner.
                                  For Petitioner              : Mr.M.Kannan
                                  For Respondent              : Mr.M.Sakthi Kumar,
                                                                Government Advocate (Crl. Side)

                                                            ORDER

This petition is filed to quash charge sheet passed in S.T.C.No.195 of 2017 https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

on the file of the learned Judicial Magistrate, Musiri.

2.According to the petitioner, on 19.11.2015, the agricultural Officer

Insecticides Inspector took samples from the shops of one Natarajan, Musiri,

Trichy of Profenofos 50% E.C. The respondent sent one sample to

Insecticides Analyst, PTL, Erode and Code No.ADA/MSR/58/2015-16 was

assigned. The date of manufacture of insecticide is 13.09.2014. The expiry

date of the insecticide is 12.09.2016. The batch number of the sample sent for

the analysis is SBS41040. The sample was received by the Insecticides

Analyst, PTL, Erode on 26.11.2015 and he had tested it on 04.12.2015. It is

learnt that Insecticides Analyst had given a report in Form No.XVII dated

04.12.2015 under Insecticides Act holding that the sample is misbranded

quality as defined in Section 3(K)(i) of the Insecticides Act, 1968 for reasons

given therein.

3.The Assistant Director of Agriculture, Musiri issued a show cause

notice dated 15.12.2015 calling for explanation for the deficiency recorded in

the analytical report dated 04.12.2015 to be submitted. The petitioners

company received show cause notice on 04.01.2016 and submitted a reply

dated 05.01.2016 controverting the report of the Insecticides Analyst dated

04.12.2015 and also refuting the allegations in the show cause notice dated https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

15.12.2015. The petitioner's company also enclosed a copy of the analysis test

report done by the company themselves on 13.09.2014 which discloses that

the Insecticides is not misbranded. In the reply dated 07.01.2016, the

petitioner's company clearly expressed its intention to controvert the Analysis

report and adduce the evidence under Section 24 of the Insecticides Act.

Further the petitioner company also formally requested the sample to be sent

for re-analysis to Central Insecticides Laboratory. There was no reply received

either from the respondent or from any of the higher officials of the

respondent department. The respondent had not taken effective steps to sent

sample for re-analysis and belatedly filed this complaint only on 09.09.2016.

4.The Joint Director of Agriculture, Musiri had given a defective and

cryptic Sanction order for launching prosecution without mentioning the name

of the accused, nature of the allegation, date of the occurrence, the facts

constituted in the grounds of satisfaction and the role played by the accused.

Based on the defective sanction order, the respondent had filed a private

complaint before the learned Judicial Magistrate, Musiri. The private

complaint was filed belatedly after the expiry of the shelf life of the

insecticide. The provisions of Section 22 of Insecticides Act have not been

followed. Therefore, the petitioner company has lost a valuable right under

Section 24(4) to seek re-analysis of the sample before the Central Insecticides https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

Laboratory. Therefore, the continuation of the prosecution itself will be an

abuse of process of law.

5.No counter was filed by the respondents.

6.The learned counsel appearing for the petitioner has argued that on

19.11.2015, the respondent inspected the shop of the petitioner and took

samples of profenofos 50% E.C., and one sample was sent to Insecticides

Analyst, PTL, Erode and date of manufacture is 13.09.2014 and the date of

expiry is 12.09.2016. Thereafter, the sample was received by the Analyst on

26.11.2015 and the same was tested on 04.12.2015. Thereafter, the Anaylyst

sent a report stating that the sample referred was misbranded quality as

defined in Section 3(K)(i) of the Insecticides Act, 1968 and thereafter, the

Assistant Director of Agriculture, Musiri issued a show cause notice dated

15.12.2015 and the same was received by the petitioner on 04.01.2016 and the

same was suitably replied on 07.01.2016 controverting the report of the

Insecticides Analyst dated 04.12.2015. In the said reply notice, the petitioner

clearly expressed its intention to controvert analysis report and adduce the

evidence under Section 24 of the Insecticides Act. But the respondent

Department instead of sending the samples for re-analysis without depsoiting

the samples before the competent Court had dragged the proceedings and then https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

the complaint was lodged only on 09.09.2016.

7.As per Section 22 of Insecticides Act, the Insecticide Inspector shall

divide sample taken into three portions. One portion of the said sample so

divided shall be restored to the person from whom the sample was taken by

the sample was taken by the Insecticide Inspector. One another portion shall

be immediately sent to the Insecticides Analyst for testing. The other sample

shall be produced before the Court. In this case, the aforesaid procedures have

not been followed. As per Section 24 of Insecticides Act, the Analyst shall

submit his report of analysis to the Insecticide Inspector within a period of 30

days in duplicate. The Insecticide Inspector on receipt of the report shall

deliver one copy of the report to the person from whom the sample was taken

and retain the other copy for use in any prosecution in respect of the sample.

Such report shall be conclusive evidence unless the person from whom the

sample was taken he was within 28 days of receipt of the report notified in

writing to the Insecticide Inspector or the Court intending to adduce evidence

in controverting of the report. If the sample has not been re-analyzed as per

Section 24(3), this Court by its own motion or on the request either of the

complainant or of the accused cause the sample of the insecticides produced

before the Magistrate under Section 22(6) of the Act to be sent for analysis to

the Central Testing Laboratory.

https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

8.In this case, the prosecution has been launched before the trial Court

after a long delay and the shelf life of the insecticides came to expire on

12.09.2016 even before the filing of the case. Thereafter, the petitioner

company has lost a valuable right under Section 24(4) to seek re-analysis of

the sample before the Central Insecticides Laboratory. Therefore, the charge

sheet is liable to be quashed.

9.To support his contention, he relied on the decision of the Hon'ble

Supreme Court in the case of Northern Mineral Limited v. Union of India

and Another reported in (2010) 7 Supreme Court Cases 726.

10.The learned Government Advocate appearing for the respondent has

contended that the respondent has inspected the shop of the petitioner on

19.11.2015 and at that time, they took samples and the same was sent for

laboratory for analysis and the same was analyzed and found misbranded in

respect of active ingredients content even after allowing the permissible

tolerance limits of 3% deviation from the nominal declared value. Thereafter,

the explanation was called for from the concern through registered post and

given sufficient time to answer and the explanation was not satisfactory. After

the completion of the formality, the complainant placed materials before the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

Sanctioning Authority. After verifying the materials and applying mind, the

Sanctioning Authority issued consent letter to prosecute the case and thereby,

the complaint has been filed. Since the chemical analysis report is as against

the petitioner, the petitioner has to face trial. There is no procedural

irregularities as alleged by the petitioner and this petition is liable to be

dismissed.

11.Heard both sides and perused the materials available on records.

12.On perusal of the records, it is observed that the respondent has filed

complaint before the learned Magistrate and the same was taken on file as

S.T.C.No.195 of 2017. The petitioner's contention is that on 19.11.2015, the

sample of Profenofos 50% E.C., was taken. The respondent sent one sample to

Insecticides Analyst, PTL, Erode. The date of manufacture of insecticide is

13.09.2014. The expiry date of the insecticide is 12.09.2016. He had tested it

on 04.12.2015. As per report, the sample was referred misbranded quality as

defined in Section 3(K)(i) of the Insecticides Act, 1968 for reasons given

therein. Thereafter, the respondent has issued show cause notice to the

petitioner on 15.12.2015 and the same was received on 06.01.2016. The reply

was sent on 07.01.2016 controverting the report of the Insecticides Analyst

dated 04.12.2015. The prosecution has filed complaint only on 09.09.2016 https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

and the same was returned and re-presented on 14.06.2017 and the same was

taken on file on 17.06.2017.

13.The main contention of the petitioner is that as per Section 22 of

Insecticides Act, the Insecticide Inspector ought to have divided the sample

into three portions. One portion of the said sample is to be restored to the

person from whom the sample was taken by the Insecticide Inspector and

another portion shall be immediately sent to the Insecticides Analyst for

testing and another sample shall be produced before the Court. But in this

case, there is no any sample sent to the Court as per Section 22 of the

Insecticides Act. Further as per Section 24 of the Insecticides Act, Insecticide

Analyst shall submit his report of analysis to the Insecticide Inspector within a

period of 30 days in duplicate. In turn, the Insecticide Inspector on receipt of

the report shall deliver one copy of the report to the person from whom the

sample was taken and retain the other copy for use in any prosecution in

respect of the sample. But in this case, the said procedures have not been

followed.

14.Further the contention of the petitioner is that the opportunity to re-

analysis under Section 24(3) of the Act could not be availed by the petitioner,

since the respondent failed to send the sample for re-analysis. Already the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

petitioner had sent a reply dated 07.01.2016 by controverting the report and

rebutting the allegations of the show cause notice. While so the respondent

has to take steps for re-analysis of the sample as per Section 24(3) of the

Insecticides Act.

15.Such report shall be conclusive evidence unless the person from

whom the sample was taken within 28 days of receipt of the report notified in

writing to the Insecticide Inspector or the Court intending to adduce evidence

in controverting of the report. If the sample has not been re-analyzed as per

Section 24(3) of the Act, this Court by its own motion or on the request either

of the complainant or of the accused cause the sample of the insecticides

produced before the Magistrate No.II under Section 22(6) of the Act to be sent

for analysis to the Central Testing Laboratory.

16.The learned counsel appearing for the petitioner relied upon the

decision of the Hon'ble Supreme Court in the case of Northern Mineral

Limited v. Union of India and Another reported in (2010) 7 Supreme Court

Cases 726, wherein the Hon'ble Supreme Court in para nos.22, 24, 25 reads

as follows:-

“22.From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.

24.No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to Central Insecticides Laboratory.

25.It may be mentioned herein that shelf life of the insecticides had expired even prior to the filing of the complaint. The position therefore which emerges is that by sheer inaction the shelf life of the sample of insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

prosecution against the appellant to continue shall be futile and abuse of the process of Court.”

17.On careful reading of the aforesaid judgment, it is clear that the

underlying object behind Section 24(3)and (4) of the Act is that mere

notifying intention to adduce evidence in controversion of the report of the

Insecticide Analyst confers on the accused the right and clothes the court

jurisdiction to send the sample for analysis by the Central Insecticides

Laboratory and an accused is not required to demand in specific terms that

sample to be sent for analysis to Central Insecticides Laboratory. When the

accused was served with Insecticide Analyst report, the intention was

necessarily required to be conveyed to the Insecticide Inspector, which was so

done by the appellant and the Insecticide Inspector was obliged to institute

complaint forthwith and produce sample and request the court to send the

sample for analysis and test to the Central Insecticides Laboratory. In this case

also, the petitioner submitted a reply controverting the report of the

Insecticide Analyst dated 04.12.2015 and also expressed its intention to

controvert the report and adduce the evidence as per the Insecticides Act. But

the respondent failed to launch prosecution immediately after the reply of the

notice but the prosecution was launched on 09.09.2016 with defect and the

same was returned and thereafter it was re-presented on 14.06.2017. This is https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

after the lapse of expiry period. Therefore, the valuable right of the accused

has been defeated.

18.The Hon'ble Supreme Court in the aforesaid judgment has clearly

stated that shelf life of the insecticides had expired even prior to the filing of

the complaint. The position therefore which emerges is that by sheer inaction

the shelf life of the sample of insecticides had expired and for that reason, no

steps was taken for its test and analysis by the Central Insecticides Laboratory.

Therefore, allowing this criminal prosecution against the petitioner is continue

shall be futile and abuse of process of Court. In the case on hand also, the

prosecution was launched after the expiry of the aforesaid sample and the

right of the accused to sent the sample was defeated and thereby, this Court is

inclined to quash the charge sheet.

19.In the result, this Criminal Original Petition is allowed and the

charge sheet in S.T.C.No.195 of 2017 on the file of the learned Judicial

Magistrate, Musiri, is hereby quashed.

25.08.2023 NCC : Yes/No Internet : Yes/No Index : Yes/No Mrn https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

To

1.The Judicial Magistrate, Musiri.

2.The Agriculture Officer, O/o. Asst. Director of Agriculture, Musiri, Trichy District – 621 211.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.3600 of 2020

P. DHANABAL,J.

Mrn

Crl.O.P(MD).No.3600 of 2020

25.08.2023

https://www.mhc.tn.gov.in/judis