MEWA SINGH Vs. PRITHIPAL SINGH INSECTICIDES

JUDGEMENT

(1.) CRIMINAL Misc. No. 10833-M of 1990 and 10836-M of 1990 shall be disposed of by common order as these involve almost the same legal controversy although the factual matrix is different. In criminal Misc. No. 10836-M of 1990 manufacturer through its Regional Manager Sh. Mewa Singh seeks quashment of the complaint for offence under Section 3(k)(i) read with Sections 17, 18, 29 and 33 of the Insecticides Act, 1968 on various grounds. In this case Sh. Pirthpal Singh-Insecticides Inspector Sultanpur Lodhi District Kapurthala has taken the sample of Penvel brand Fenvelerate insecticide bearing batch No. 579 on 23-1-1987 From M/s. Garg Sales Corporation, Mandi Road, Sultanpur Lodhi dealing in the sale of pesticides The Inspector selected there packets of Penvel brand Fenelerate insecticide batch No. 579 for purpose of Sampling in the presence of Sh. Naveen Kumar, incharge of the business of the said firm. Shri Naveen Kumar has signed the relevant forms as sole proprietor of the firm. Each container of sample was sealed in the presence of Sh. Naveen Kumar accused. One of the sample was handed over to Sh. Naveen Kumar, the other two were sent to the Chief Agriculture Officer, Kapurthala for getting the sample to be analysed, and other to be retained in the said office. Later on one sample was sent to the Director, Central Plant Protection Training Instituted, Rajinder Nagar, Hyderabad a duly notified branch of Central Insecticide Laboratory. The Director, Central Insecticides Laboratory on testing of the sample opined that the sample does not conform to the relevant ISI specifications as per manufacturers method in its active Ingredient content and thus declared it misbranded as per provisions of Section 3(k)(i) of the Insecticide Act, 1968. The insecticide was supplied to the dealer by M/s Modern Plant Production Centre, near Adda Bastian, G.T. Road Jalandhar City and it was manufactured by M/s Searle (India) Limited having its head office at Bombay. Thus, after obtaining the necessary sanction from the Joint Director of Agriculture Punjab under Section 3(1) of the Act, a complaint for offences under Section 3(k)(i), 17, 18, 29 and 33 of the Act read with Rule 27(5) of the Insecticide Rules 1971 was filed against the dealer, distributor and manufacturer before Sub Divisional Judicial Magistrate, Sultanpur Lodhi. The Sub Divisional Judicial Magistrate, Sultanpur Lodhi issued summons to the petitioner which were received on 21.11.1989 The manufacturer seeks the quashment of complaint interalia on the ground that the complaint was filed on 10-7-1989 much after the expiry date of the insecticide i a. November, 1981 and the process was served upon the petitioners in November, 1989. It has resulted in loss of valuable right of manufacturer to get the sample retested from the Central Laboratory. It was also maintained that there was no standard of toxicity prescribed by any authority under the Insecticides Act, and thus the report of analyst that the sample contained higher active ingredient is of no consequence. Reliance in this regard was placed in a decision in Madan Dangi and Ors. v. State of Punjab, 1987 Criminal Law Journal 138. The objection regarding the loss of valuable right to get the sample retested from the Central, Laboratory under Section 24(4) of the Act due to not getting the sample tested from the State Analyst was also taken. The receipt of the Insecticides analysis beyond the period of 60 days under Section 24(i) of the Act by the Insecticide Inspector was also stressed. The non service of the report of the Insecticides Laboratory Analyst on the person from whom the sample was drawn within the stipulated period was also taken. It was also maintained that the provisions of Section 24 does not require the serving of Analyst report upon the manufacturer and if the dealer from whom the sample of insecticides taken does not challenge it the report becomes final. Thus, vires of Section 24 of the Act have been challenged on the ground of being violative of Rules of natural justice, The analogous provisions of Food Adulteration Act were referred in connection with supplying the report of the Public Analyst to the dealer from whom the sample was taken as well as to the person who supplied the article and it is provided that either or both of them to challenge the report within 10 days. Provisions of Sections 18-A, 23 and 25 of the Drugs and Cosmetics Act providing for supplying of copy of the report to the manufacturer was also stressed in this regard. The validity of consent for prosecution under Section 31(1) was also assailed on the ground of non application of the mind as well as on the ground that it was (sic) after the expiry of shelf life of the product. The decision of the apex Court in A.K. Roy v. State of Punjab, AIR 1986 Supreme Court, in the matter of sanction was also referred in this regard.

(2.) I have heard the learned counsel for the parties besides perusing the record.

(3.) IN Criminal Misc. No. 10833-M of 1990, the sample of Fenvalrate was taken on 19-1-88. The label on the container revealed that it was manufactured in August, 1987 and the date of expiry was July 1989, whereas the complaint was filed on 11-7-89 and the service of the summons on the petitioners was effected on or about 31-5-1990 requiring them to attend the Court on 14.6 1990, Thus it can be well said that the petitioners were made aware of their prosecution of the offences under the Act much after the expiry of the period of the life shelf of the insecticide as in this case also the sample was got tested at the outset from the Central Insecticides Laboratory, Faridabad.