N.K.KAPOOR, J. - (1.) PETITIONER seeks quashing of complaint Annexure P-1 and consequent proceedings initiated under the said complaint i.e. summoning order and notice dated 23.7.1993.
(2.) A complaint under section 3(k)(i), 17, 18, 29 and 33 of the Insecticides Act, 1968 (for short 'the Act') read with rule 27(5) of the Insecticide Rules, 1971 (for short 'the Rules') was filed in the Court of Chief Judicial Magistrate, Faridkot, on 10.4.1992. According to the complaint, M/s Nagindera Trading Company, Jaitu, was dealing in Insecticides/Pesticides, who held a licence duly issued by the Licensing Authority i.e. Chief Agricultural Officer, Faridkot. As per provisions of the Act, dealer and manufacturer are under legal obligation to observe all provisions as contained in the Act and the Rules. Sh. Balbir Singh, Insecticides Inspector, along with Sh. Harbhajan Singh, Agricultural Sub Inspector, visited the shop of the accused disclosing their identity and intimated their desire to draw the sample of Monocrotophos 36% S.L. manufactured by ML - Industries, Ghaziabad. During checking, it was found that 30 pieces of one litre pack were lying inside the shop. Necessary papers were prepared and sample of the drug was taken. The contents were put in three separate containers duly sealed the cloth bags with metal seal. One sealed sample and one form XII was handed over to Mr. Jagdish Singh at the spot and other two portions of the sample along with Form No. XII were submitted in the office of Chief Agricultural Officer. As per analyst's report, sample does not conform to ISI specifications in respect of its percentage active ingredients, contents i.e. 30.10% instead of 36%. A copy of the analysis report was served upon the dealer as well as manufacturer along with show cause notice. This way prima facie a case of misbranded insecticide against the dealer as well as distributor was made which is now sought to be quashed by the petitioner. The case of the petitioner is that as soon as he had been served with a show cause notice on account of alleged misbranding of insecticide, he approached the Judicial Magistrate vide application dated 22.10.91, Annexure P-6, praying therein that second sample lying with the applicant be sent to some Central Laboratory for testing. This was resisted by the Insecticide Inspector vide reply Annexure P-7 on the ground that the petitioner has no cause till the complaint is instituted. Since the complaint has not been instituted so far, the sample cannot be sent for analysis at this stage. Judicial Magistrate declined to send the sample on the ground that he has no power to entertain the request of the petitioner at this stage as no complaint had been instituted nor any proceedings are pending. The petitioner has further highlighted that in his reply to the show-cause notice dated 15.10.1991 he brought to the notice of the Chief Agricultural Officer that insecticide bearing batch No. 0105 was manufactured in May, 1991 whose shelf life will expire in April, 1992. According to the petitioner, the medicine was purchased from a sealed container of the company and the sample was also taken from the sealed container. This way the petitioner cannot interfere with the ingredients of the medicine. He is thus innocent. Yet he made a request that the sample be sent for testing from any other laboratory also. This communication is dated 26.10.1991. With these averments it is urged by the petitioner that for no fault of the petitioner, he has been deprived of his legal right to get the sample re-tested from any other laboratory since the shelf life of the sample has expired in April, 1992. On this ground alone, the complaint deserves to be quashed.
(3.) REPLY of the Insecticide Inspector is on the usual lines making reference to the filing of complaint in the Court of Chief Judicial Magistrate, taking of the sample and it having been found to be misbranded etc. In reply to specific averment of the petitioner that despite request made to the Chief Judicial Magistrate to send the sample for re-testing as its shelf life is likely to expire, it has been stated by the answering respondents that such a request was rightly declined as till then no complaint had been filed by the respondent and thus there were no pending proceedings. This way the order passed by the Chief Judicial Magistrate on 20.1.1992 is also perfectly legal. The sole contention of the learned counsel for the petitioner is that the petitioner has been deprived of his right to get the second sample tested from any other laboratory on account of inaction or callousness on the part of the respondent. Pursuance to the show-cause notice issued by the Chief Agricultural Officer, a request was made to get the sample tested from any other laboratory vide Annexure P-5. This request was made long before the expiry of shelf life of the sample i.e. May, 1992. Not only this, petitioner approached the Judicial Magistrate to send the second sample for analysis even before the complaint was filed by the respondent. Somehow the Judicial Magistrate declined to exercise jurisdiction on the ground that it has no power to entertain such a request as no complaint has yet been instituted nor any proceedings are pending. A right to get sample reanalysed has been conferred vide sections 24(3) and 24(4) of the Act which reads as under :- "24(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 to Insecticide Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to produce evidence in contravention of the report. Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person under sub-section (3) notified his intention of adducing evidence in contravention of the Insecticide Analyst's 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 make the test or analysis is report in writing signed by, or under the authority of Director of the Central Insecticides Laboratory (sic) the result thereof, and such report shall be conclusive evidence of the (sic) stated therein." ;