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Thursday, June 11, 2015

Section 29 (1) (a) read with Section 3 (K) (1) (VIII) of the Insecticides Act, 1968.= Thus, by the time the complaint was taken cognizance, the shelf life of the product was expired long ago and thereby the valuable rights of the accused conferred under Section 24(3) and (4) of the Insecticides Act, 1968, were defeated for no fault of the petitioners/accused. In similar circumstances and in respect of a case relating to drawing the sample of Monochrotophos 36% SL (Milphos) and filing the complaint belatedly after expiry of the shelf life - liable to be quashed


collected four samples of each 250 ML of
Monochrotophos 36% SL (Milphos) manufactured by Accused No.3    
and sealed them and prepared Form XXI and sent the sealed
sample--Monochrotophos 36% SL ( Milphos) to the Deputy  
Director of Agriculture, Pesticide Testing and Coding Centre,
Samiti Complex, Old Malakpet, Hyderabad, for analysis.  After
analysis, the Analyst sent a report stating that sample does not
confirm the relevant specification in the active ingredient test
conducted and hence, it is MISBRANDED .

A valuable right had been conferred on the accused to have the
sample tested from the Central Insecticides Laboratory and in the
circumstances of the case, the accused have been deprived of that right, thus,
prejudicing them in their defence.

The above decision squarely applies to the facts of the
present case.  In the instance case also, the petitioners/accused
were deprived of their rights accrued under Section 24(3) and
(4) of Insecticides Act, 1968 due to apathy of the complainant.
Hence, continuation of proceedings, in the considered view of
this Court, will amount to abuse of process of law.

Accordingly, the Criminal Petition is allowed and the
Proceedings in C.C.No.758 of 2014 on the file of Judicial First Class
Magistrate, Kurnool, are hereby quashed against the
petitioners/accused Nos. 1 to 4.



THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

Criminal Petition No.1526 of 2015

02-06-2015

M/s. New Rythu Fertilizers, Rep. by Y.Manthanna Atmakur, Kurnool District and
others..... Petitioners

@The State of Andhra Pradesh Rep. by its Public Prosecutor,High Court of
Judicature at Hyderabad For the State of Telangana and The State of Andhra
Pradesh and another.. Respondents  

!Counsel for Petitioners : Sri M. Ravindra Nath Reddy

^Counsel for Respondent No.1: Asst. Public Prosecutor

<Gist:

>Head Note:

? Cases referred:
1)      (2010) 7 SCC 726
2)      (1999) 8 SCC 190


HONBLE SRI JUSTICE U. DURGA PRASAD RAO        
Criminal Petition No.1526 of 2015

ORDER:
        In this petition filed under Section 482 Cr.P.C, the
petitioners/A.1 to A.4 seeks to quash the proceedings in
C.C.No.758 of 2014 on the file of Judicial First Class Magistrate,
Kurnool.
02.      The factual matrix of the case is thus:
      The complainant is the Mandal Agricultural Officer, Atmakur,
Kurnool District.  Accused Nos. 1 and 2 are partners of the firm--
M/s New Rythu Fertilizers. A.3 is the Manufacturing Firm of
Pesticides situated at Alwal District, Rajasthan. Whereas, the
accused No.4 is the person responsible for Quality Control of
Accused No.3 Firm.
(a)      On 06.08.2011 LW.1--Mandal Agricultural Officer &
Insecticides Inspector, Atmakur, inspected the premises of
Accused No.1 and 2 at Atmakur and served notice in Form No. XX
to A.2 and collected four samples of each 250 ML of
Monochrotophos 36% SL (Milphos) manufactured by Accused No.3    
and sealed them and prepared Form XXI and sent the sealed
sample--Monochrotophos 36% SL ( Milphos) to the Deputy  
Director of Agriculture, Pesticide Testing and Coding Centre,
Samiti Complex, Old Malakpet, Hyderabad, for analysis.  After
analysis, the Analyst sent a report stating that sample does not
confirm the relevant specification in the active ingredient test
conducted and hence, it is MISBRANDED .  LW.1 served Analyst
Report to A.2 on 30.08.2011 and obtained acknowledgment.
LW.1 also seized the Invoice No.1131103617, dated 07.07.2011
of M/s New Rythu Fertilizers, Atmakur and 26 bottles each 250 ML
and packed under the cover of panchanama.  The Joint Director of
Agriculture, Kurnool, sent proposals to the Collector and District
Magistrate, Kurnool, along with the opinion of Assistant Public
Prosecutor, Kurnool, to accord authorization to LW.1 to prosecute
Accused Nos. 1 to 4 under the provisions of Insecticides Act, 1968
and authorization was given accordingly.  Hence, the complaint
under Section 29 (1) (a) read with Section 3 (K) (1) (VIII) of the
Insecticides Act, 1968.
03.     Aggrieved, the petitioners/Accused Nos. 1 to 4 filed the
instant petition seeking quashment on the main plank of argument
that the shelf life of pesticide i.e., Monochrotophos 36% SL
( Milphos) was expired by 12.07.2012 and the LW.1 drew sample
on 06.08.2011 and sent for analysis and Analyst Report was
served on the petitioner/Accused No.2 on 30.08.2011.  Further,
on 02.12.2011, a show cause notice dated 17.09.2011 was served
on the petitioner/Accused No.3 by the Joint Director of
Agriculture, Kurnool, to furnish the particulars of the persons
responsible for manufacture of the said mis-branded product and
petitioner/Accused No.3 vide Reply Letter dated 07.12.2011,
informed that he was not satisfied with the result and wants to
contest the contents of the Analytical Report.  But inspite of it, the
complainant even without mentioning about the said Reply Letter
dated 07.12.2011, filed the complaint before the trial Court on
17.05.2014 which was returned on 19.06.2014 and represented
on 28.06.2014 and ultimately the complaint was taken cognizance
on 31.01.2014 and as such, long prior to the filing of the
complaint and taking cognizance, the shelf life of the product was
expired and so the petitioners/accused lost their valuable right of
seeking to send another sample for analysis to Central
Insecticides Laboratory (CIL) and hence, continuation of
proceedings against the petitioners/Accused will amount to abuse
of process of law and therefore may be quashed.  They relied
upon the following decisions:
(1)  NORTHERN MINERAL LIMITED v. UNION OF INDIA      
AND ANOTHER .  
(2) STATE OF HARYANA v. UNIQUE FARMAID (P)      
LIMITED AND OTHERS .  

04.     Per contra, while opposing Petition, the learned Assistant
Public Prosecutor opposed the petition and argued that the
petitioners/accused are entitled to seek for sending the second
sample for analysis before the Court only and therefore, their right
is not defeated and hence, the petition is not maintainable.
05.     In the light of the above rival arguments, the point for
determination is:
       whether there are merits in this petition to allow?
06.     POINT:  A perusal of the record shows that  Form XXI ( vide
Rule 34) of Insecticides Act, 1968, prepared by LW.1 would show
that the sample product which was obtained from the premises of
Accused Nos. 1 and 2 is Monochrotophos 36% SL        ( Milphos)
and  its manufacturing date is 12.01.2011 and expiry date is
12.07.2012.  The Apex Court in NORTHERN MINERAL LIMITED      
( 1 supra), has delineated the importance and relevance of
mentioning the expiry of shelf life of the insecticides and
pesticides.  It observed in Para No.10 thus:
       We find substance in the submission of Mr. Nehra and the decision
relied on clearly supports his contention.  The statue mandates disclosure of
expiry date of the insecticide.  The form prescribed for submission of the
report
by the Insecticide Analyst contains columns for the dates of the manufacture
and expiry.  Insecticides are substances specified in the Schedule to the
Insecticides Act and from perusal thereof it is evident that many of the
substances with passage of time may lose their identity if exposed or come into
contact with other substance. Therefore, there is no escape from the
conclusion that shelf life of an insecticide shall have its bearing when it is
tested or analysed in the laboratory.

07.     Be that it may, admittedly, the sample was drawn on
06.08.2011 and copy of Analyst Report was sent to Accused
on 30.08.2011.  Further, LW.1 sent a Notice dated 17.09.2011
on 02.12.2011 to the petitioner/Accused No.3 and he sent a
Reply dated 07-12-2011 which was received by 09-12-2011.
Copy of the said Reply Letter sent by the petitioner/accused
No.3 is pertinent to mention here.  The Reply Letter reads
thus:



The Joint Director of Agriculture,                                    07-12-2011
Kurnool (AP)

Sub:  Your Show Cause Notice No.D4/4706/111, Dt. 17.09.2011  

Dear sir,

We are in receipt of show cause notice referred above on 02.12.2011 and
thereby come to understand that one sample of Monocrotophos 36% Batch  
No.C00557 (Mfd.01/11 and expiry 7/12) drawn from M/s New Rythu Fert,
Atmakur, Kurnool District, for analysis was found misbranded.  In this respect,
we want to submit as under for your kind consideration.
1.      That the sample is marginally misbranded and we honestly feel it is for
the reason of defective sampling or analysis.
2.      We are not satisfied with the result and want to contest the contents of
the analytical report.
Please do the needful at your earliest.

Thanking you,
For Insecticides (India) Limited,
xxxxxxxxxxxxx
(Authorized Signatory)

a)         Thus, in the above said Reply Letter, the
petitioner/Accused No.3 made it clear that he was not satisfied
with the result of analysis and wants to contest the contents of
the analytical report and requested the authorities to do the
needful at the earliest. The Letter purports that
petitioner/Accused No.3 wanted the authorities to send
another sample for analysis.  In Northern Mineral Limited
(1 supra), the Honble Apex Court has held that  mere
expression of intention to adduce evidence in contraversion of
analyst report implies demand to send the samples to the
C.I.L for second analysis and the accused need not specifically
request for sending the report to C.I.L.  The Honble Apex
Court held thus:
     From the language and the underlying object behind Sections 24(3) and
(4) of the Act as also from the ratio of the aforesaid decisions of this Court,
we
are of the opinion that mere notifying the intention to adduce evidence in
controversion of the report of the Insecticide Analyst confers on the accused
the right and clothes the Court with the jurisdiction to send the sample for
analysis by the Central Insecticides Laboratory and an accused is not required
to demand in specific terms that the sample be sent for analysis to the Central
Insecticides Laboratory.  In our opinion, the mere intention to adduce evidence
in controversion of the report, implies demand to send the sample to the
Central Insecticides Laboratory for test and analysis.

08. So, from the Letter dated 07.12.2011 of
petitioner/Accused No.3, it is clear that he was not satisfied
with the analyst report and he wants to contest the contents
of the same and thereby he was preferring to exercise his
right under Section 24(3) and (4) of Insecticide Act, 1986.
Section 24 of the said Act reads thus:
         Section 24:  Report of Insecticide Analyst:
(1)     xxxx
(2)     xxxx
(3)     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 sample are pending that he intends
to adduce evidence in controversion of the report

(4)     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 of the
Insecticide Analysts report, the Court may, of its own motion or in its
discretion at the request either of the complainant or of the accused,
cause the sample of the insecticide produced before the Magistrate
under sub-section (6) of Section 22 to be sent for test or analysis to
the said laboratory, (which shall, within a period of thirty days, 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 the result thereof, and such report shall be conclusive
evidence of the facts stated therein
(5)     Xxxx
09.     However, inspite of knowing the clear intention of the
petitioners/accused the complainant, it appears, did not take
any action to send the second sample for analysis within shelf
life of the product.  On the other hand, he filed complaint on
17.05.2014 which was ultimately taken cognizance by the trial
Court on 31.10.2014.  Thus, by the time the complaint was
taken cognizance, the shelf life of the product was expired
long ago and thereby the valuable rights of the accused
conferred under Section 24(3) and (4) of the Insecticides Act,
1968, were defeated for no fault of the petitioners/accused.
In similar circumstances and in respect of a case relating to
drawing the sample of Monochrotophos 36% SL (Milphos) and  
filing the complaint belatedly after expiry of the shelf life, the
Honble Apex Court in the case of State of Haryana (2 supra)
held that the accused deserve quashment of the proceedings.
it held thus:
         It cannot be gainsaid, therefore, that the respondents in these appeals
have been deprived of their valuable right to have the sample tested from the
Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act.
Under sub-section (3) of Section 24 report signed by the Insecticide Analyst
shall be evidence of the facts stated therein and shall be conclusive evidence
against the accused only if the accused do not, within 28 days of the receipt of
the report, notify in writing to the Insecticide Inspector or the Court before
which proceedings are pending that they intend to adduce evidence to
controvert the report.  In the present cases, the Insecticide Inspector was
notified that the accused intended to adduce evidence to controvert the report.
BY the time the matter reached the Court, the shelf life of the sample had
already expired and no purpose would have been served informing the Court of
such an intention.  The report of the Insecticide Analyst was, therefore, not
conclusive.  A valuable right had been conferred on the accused to have the
sample tested from the Central Insecticides Laboratory and in the
circumstances of the case, the accused have been deprived of that right, thus,
prejudicing them in their defence.

10.     The above decision squarely applies to the facts of the
present case.  In the instance case also, the petitioners/accused
were deprived of their rights accrued under Section 24(3) and
(4) of Insecticides Act, 1968 due to apathy of the complainant.
Hence, continuation of proceedings, in the considered view of
this Court, will amount to abuse of process of law.
11.             Accordingly, the Criminal Petition is allowed and the
Proceedings in C.C.No.758 of 2014 on the file of Judicial First Class
Magistrate, Kurnool, are hereby quashed against the
petitioners/accused Nos. 1 to 4.
      As a sequel, miscellaneous petitions pending, if any, shall
stand closed.

_________________________  
U. DURGA PRASAD RAO, J    
Date: 02.06.2015 

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