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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: NATIONAL ORGANIC CHEMICAL INDUSTRIES LTD.

DATE OF JUDGMENT:       25/10/1996

BENCH: K. RAMASWAMY, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel for the parties.      This appeal  by special  leave arises against the order of the  High Court of Punjab & Haryana at Chandigarh made on March 13,  1992 in  Criminal Miscellaneous  No.6835-M(A)  of 1991.      The admitted  position is  that  the  respondent  is  a manufacturer  of   Monocil,  an   Insecticide.   Insecticide Inspector visited  the factory  of the  respondent on August 18, 1988  and had  taken two  samples of  Monocil from batch No.0319, manufactured  in March,  1988  when  the  same  was exposed for  sale in  August, 1989. Admittedly, he had taken two samples  thereof and  sent one  of the  samples  to  the Public Analyst.  The Public  Analyst  in  his  report  dated October 12,1988  reported that  the  ingredients  used  were 33.02%  E.C.   as  against   the   specification   of   36%. Accordingly,  it   was  not   in  conformity  with  the  ISI specifications.  Consequently,   he  opined   that  it   was adulterated. On  receipt  thereof,  show  cause  notice  was issued on  October 21,  1988 as to why the respondent should not  be   proceeded  against  for  sale  of  an  adulterated insecticide. On  receipt thereof, the respondent had given a reply on  November 7,  1988 requesting the appellant to send the second  sample to  Central Insecticides Laboratory so as to enable  them "to  adduce evidence in controversion of the allegations  made   against  us  you  may  please  have  the retained/refer sample  analysed by  CIL", that was not done. The complaint  was lad  on March 25, 1989 for prosecution of the respondent in the Court of the Chef Judicial Magistrate, Kapurthala.  The  respondent  challenged  the  same  in  the proceedings under  Section  482  of  the  Code  of  Criminal Procedure. In  the impugned  order, the  High Court has held that the appellant had delayed in taking action; nor was the sample in  the custody  of the appellant sent to the Central Insecticides Laboratory;  the  appellant  had  deprived  the respondent of its valuable defence due to delay. Under these circumstances,  the   proceedings  for  prosecution  of  the respondent is  a  waste  of  public  time;  accordingly,  it quashed the  proceedings. Though,  prima facie,  we are  not

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impressed with  the reasoning  given by  the High  Court, on perusal and  conjoint reading of Section 21,22 and 24 of the Act, we  are of  the view  that ultimate conclusion to quash the complaint, in the circumstances, is right. The substance of the  question is: whether the appellant has complied with the statutory  requirements envisaged  under Section 22 read with Section  24(3) and  (4) of  the Act?  Section 21 of the Insecticides Act, 1968 (for short, the ’Act’) gives power to the Insecticide  Inspector  to  enter  and  search,  at  all reasonable times  and with  such assistance,  if any,  as he considers necessary,  any premises in which he has reason to believe that  an offence  under the  Act or  the rules  made thereunder has been or is being or is about to be committed, for the purpose of satisfying himself that the provisions of the Act  or the  rules made  thereunder or the conditions of any certificate of registration or licence issued thereunder are being  complied with  etc. He  shall have power to enter and search  the premises  and take  action, as  contemplated under the  Act including to take samples of any insecticides and send  such  samples  for  analysis  to  the  Insecticide Analyst for its test in the prescribed manner. The procedure has been  prescribed under Section 22 of the Act. The manner n which  Insecticide Inspector  is empowered  to  seize  the record etc. and also to send such analysis to the Analyst is provided therein. Subsection (5) & (6) provide the manner in which the  samples of an insecticide for the purpose of test or analysis, shall be taken; it reads as under:      "(5) Where an Insecticide Inspector      takes a  sample of  an  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      willfully  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:      Provided that where the insecticide      is made  up in  containers of small      volume,  instead   of  dividing   a      sample    as     aforesaid,     the      Insecticide Inspector  may, and  if      the insecticide  be such  that t is      likely   to   deteriorate   or   be      otherwise   damaged   by   exposure      shall,  take   three  of  the  said      containers after  suitably  marking      the  same   and,  where  necessary,      sealing them."      "(6)  The   Insecticide   Inspector      shall  restore  one  portion  of  a      sample so divided or one container,      as the  case may  be, to the person      from whom  he takes  it  and  shall      retain the remainder and dispose of      the same as follows:      (i) one  portion or  container,  he      shall   forthwith   send   to   the      Insecticide  Analyst  for  test  or      analysis; and

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    (ii) the  second, he  shall produce      to   the    court   before    which      proceedings, f  any, are instituted      in respect of the insecticide."      A  reading  thereof  would  indicate  that  Insecticide Inspector is  empowered to  take samples of insecticides for the purpose  of test or analysis, as contemplated and in the manner laid  down in  the Act and the rules. He 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. Under  the proviso, where the insecticide is made up in containers  of small  volume instead of dividing a sample as specified,  the Insecticide  Inspector may,  and  if  the insecticide be  such that  it is likely to deteriorate or be otherwise damaged by exposure, shall, take three of the said containers  after  suitably  marking  the  same  and,  where necessary,  sealing   them.  Under   sub-section  (6),   the Insecticide Inspector  thereafter shall  restore one portion of a sample so divided or one container, as the case may be, to the  person from whom he takes it and he shall retain the remainder and  dispose of  the same  as envisaged in clauses (i) and  (ii). After  the receipt  of the report, subsection (3) of  Section 24 declares that "any document purporting to be a  report signed  by an  Insecticide  Analyst,  shall  be evidence of  the facts  stated therein,  and  such  evidence shall be  conclusive unless  the person from whom the sample was taken  has within  twenty-eight days of the receipt of a copy of  the report,  notified in  writing, the  Insecticide Inspector or  the Court  before  which  any  proceedings  in respect of  the same  are pending, that he intends to adduce evidence in  controversion of the report." Subsection (4) of Section 24  envisages that  "unless the  sample has  already been  tested   or  analysed   in  the  Central  Insecticides Laboratory,  where   a  person  has  under  sub-section  (3) notified   his    intention   of    adducing   evidence   in controversion, the  Insecticide Analyst’s  report, the court may, of  its own  motion or  n its discretion at the request either of  the complainant  or of  the  accused,  cause  the sample of  the insecticide  produced before  the  magistrate under Subsection  (6) of  Section 32  to be sent for test or analysis to  the said  laboratory, which shall make the test or analysis  and report  in writing  signed by, or under the authority, of  the  Director  of  the  Central  Insecticides Laboratory, under  Subsection  (4)  shall  be  paid  by  the complainant or the accused, as the court shall direct. Thus, it would  be clear  that after the inspection and seizure of the insecticide,  the Insecticide Inspector shall divide the insecticide into  three portions, as contemplated and in the manner  prescribed  and  deliver  one  such  sample  to  the manufacturer or  person from whom insecticide was taken. One should be sent to the Insecticide Analyst. After the receipt of the  report, the  accused would be notified of the result of the  report. Thereafter,  the complaint is required to be lodged n  the Court.  At that stage, two options are open to the accused.  The accused s entitled to have one copy of the sample entrusted to him to have it notified to the Court for proving to  be contrary  to the  conclusive evidence  of the report of the analyst; after such a notification having been given to  the Court,  he is  entitled to  have it  tested by Central Insecticide  Laboratory and  adduce evidence  of the report so  given. That  such certificate  by the Director of the CIL   has  a  proof  of  his  defence  to  dislodge  the conclusiveness attached  to the  report of  the  Insecticide Analyst under  sub-section (3)  of  Section  24.  The  other

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option is,  after the  complaint is  laid in  the Court, the copy of  the sample  that is  lodged with  the Court  by the Insecticides Inspector, would be requested to be sent by the Court to  the CIL  and the report thus given by the Director of CIL  shall be  conclusive evidence  as  to  the  quality, consent and  facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court.      Unfortunately, in  this case,  the  appellant  did  not adopt   the course as was required under the Act. Of course, the respondent,  without availing of the remedy of report by Director of CIL, may not be entitled to plead deprivation of the statutory  defence. But  the complaint  should be lodged with utmost  dispatch so  that the  accused may opt to avail the statutory  defence. The  appellant had  not given  third sample to  the respondent.  As a  result, the respondent has been deprived  of his  statutory  opportunity  to  have  the sample tested  by the  CIL. Resultantly,  the respondent has been deprived of a valuable defence statutorily available to him.  Under  these  circumstances,  we  think  that  further proceedings in  the Court  of the  Chief Judicial Magistrate would  be   rendered  fruitless.  Consequently,  though  for different reasons  the complaint quashed by the Court may be justified warranting no interference.      The appeal is accordingly dismissed.