KUMAR ASSANDAS VAZIRANI Vs. SUNIL PRAKASH GUPTA

JUDGEMENT

(1.) Criminal Misc. Case No. 4961 of 1998 is directed against the order dated 9-1-1998 passed by the learned S.D.J.M., Bhubaneswar in 2(c) C.C. No. 4 of 1998 taking cognizance of offences under Sections 420 of the Indian Penal Code read with Sections 3(k), 29 and 33 of the Insecticides Act,1968. Criminal Misc. Case No. 2731 of 1999 is directed against the order dated 13-1- 1999 passed by the learned S.D.J.M., Dhenkanal in I.C.C.Case No. 2 of 1999 taking cognizance of offence under Section 420 of the Indian Penal Code.

(2.) Prosecution case in Crl.Misc. Case No. 4961 of 1998, as is revealed from the petition is that on 28-2-96 at about 2.30 p.m. the opposite party No. 1 who is designated Insecticides Inspector for Orissa seized Phosphamidon 85% S. L. batch No.A0980227 in presence of two witnesses from the shop of opposite party No. 2. The manufacturing date of the seized article was 13- 10-1995 and the expiry date was 12-10-97. After seizure of the article, same was divided into three parts, out of which one part was kept with the opposite party No. 1 and the second part was sent to the Director, Regional Pesticide Testing Laboratory, Kanpur. The Kanpur authority in turn sent the same to Regional Pesticide Testing Laboratory, Chandigarh. After testing report was obtained and it was reported that the sample doesn't conform to the relevant I.S. specification and therefore mis-branded. After receipt of the notice the opposite party No. 1 issued notice to show cause to M/s. United Phosphorus Limited and the opposite party No. 2 on 5-8-96 with a request to accord permission to launch prosecution against the Firms. The petitioners submitted their show cause within a week and not being satisfied with the show-cause, prosecution was launched after obtaining sanction from the State Government on 26-11-97. After prosecution was launched learned Magistrate took cognizance of offences mentioned above which is under challenge before this Court. Shri Routray, learned counsel for the petitioners submitted that in the show cause M/s. United Phosphorus Limited had replied that the product of the same batch of drug conforms to the required standard andtherefore they weren't with the agreement with the report of Regional Pesticide Testing Laboratory, Chandigarh and prayed for re-analysis of the sample as required under the statute. However, there was no response to such request. The order is challenged by Sri Routrary on further ground that the complaint at Bhubhaneswar is not maintainable since seizure was made at Dhenkanal. According to Sri Routrary, learned S.D.J.M. lacks territorial jurisdiction to entertain the complaint. Further ground raised in the application is that the opposite party No. 2 is not the retailer nor a licensee to sell the product of M/s. United Phosphorus Limited and therefore seizure of article from an unauthorized retailer is not binding on the petitioners. It is also challenged on the ground that there was no mention in the complaint that the petitioners are in charge of manufacture, sale or distribution of the articleson behalf of M/s. United Phosphorus Limited and therefore they could not be prosecuted. The main ground of challenge in the application is that though the sample was sent for chemical examination on 29-2-96, report was signed by the Chemical Analyst on 4-7-96 i.e.after 126 days which is in violation of Section 24(1) of the Act. Therefore,the chemical report should be ignored. It was also contended by Sri Routray that the prosecution having been launched after expiry of the use period of the pesticides, the petitioners lost their right to get the sample re-examined as provided under the statute. Similar being the allegations in other case and d same questions having been raised, both the cases were taken up for hearing and disposed of.

(3.) Learned counsel for the petitioners Sri Routray referring to Section 24 of the Insecticides Act contended that as provided in the said section, the Insecticides Analyst to whom a sample of any insecticide has been submitted for test, shall within a period of 60 days deliver to the insecticide In-spector a signed report in duplicate in the prescribed form. In the present case admittedly, the report having been submitted much after expiry of 60 days, there was clear violation of the said provision and therefore the prosecution could not be launched against the petitioners. Shri Mishra, learned counsel for the opposite party No. 1 on the other hand, submitted that though there is no dispute that the report has been received much after the statutory period, the complaint case cannot be dismissed because of negligence on the part of the Insecticides Analyst in sending report within the statutory period. It was further contended by Sri Routrary that due to such delay in getting the report the petitioners lost their right to get the sample re-analysed and in the meantime shelf-life of the insecticide of which sample was taken had already expired. According to Sri Routray, the petitioners