MADAN, J. - (1.) IN this criminal misc. petition, others dated 30. 3. 2000 (Ann. 3) of the Addl. Chief Judicial Magistrate Bhawani Mandi (Jhalawar) confirmed by the Special Judge (SC/st Prevention of atrocities Act) Jhalawar on 15. 9. 2000 (Ann. 4) have been challenged with further prayer to quash proceedings pending against petitioners (1) Gupta Chemicals (P) Ltd. & (2) Pushpendra Gupta in Cr. Case No. 149/95.
(2.) IN nut shell the circumstances resulting in prosecution of the petitioners are that on 31. 7. 1992 an INsecticide INspector Ram Swaroop Sharma holding post of Agriculture Officer. Plant Protection inspected shop of M/s Ramchandra Jai Narain Bhutra Bhawani Mandi and took a sample of Sungor 30% EC, Batch No. SE10 having manufacturing date as January 92 & expiry as June 93. This sample was sent for analysis and as per its report of 20th October 1992 it was not conforming to prescribed standards, thereby a show cause notice was sent on 20. 12. 92 to the dealer, distributor and manufacturer. The petitioners are manufacturers of aforesaid sample of insecticide. After sanction for prosecution u/s. 31 of the INsecticide Act, 1968 (for short `act'), criminal complaint was filed by the INsecticide INspector (respondent No. 2) before Addl. Chief Judicial Magistrate Bhawani Mandi on 27. 7. 1995 against the dealer (from whom the sample of insecticide was taken by the respondent No. 2), distributor and manufacturing company so also their Directors & Managers for violation of Sections 3 (k) and 17 (10 (a), punishable u/s. 29 (1) (a) of the Act. Accordingly criminal proceedings commenced against petitioner No. 1 (Manufacturing company) and No. 2 Pushpendra Gupta (Quality Control Dy GM of the petitioner No. 1) so also others viz dealer & distributor. However, on 3. 2. 96 an application was filed before the trial Court u/s. 258 Crpc for quashing these criminal proceedings and to release all the accused. This application was dismissed directing the learned counsel for the served accused to produce remaining unserved accused, by the impugned order dated 30. 3. 2000, against which two revision petition Nos. 68 & 69 of were filed by M/s Ramchandra Jainarain Bhutra & others (including the petitioners) but were dismissed by the revisional court by its order dated 15. 9. 2000. Hence this criminal misc. petition. The first and foremost grievance of the petitioners in this petition is that entire criminal proceedings against all the accused in criminal complaint filed by respondent No. 2 (Insecticide Inspector) pending before the trial court be quashed because once the petitioners as well as other accused including the dealer and distributor specifically in their respective reply to show cause notice, had requested for reanalysis, inasmuch as the sample had expired before filing of the complaint, but no reanalysis has been got done by the respondent No. 2, thereby it has resulted in depriving all the accused of their statutory right of defence u/s. 24 (4) of the Act and further causing miscarriage of justice and that apart continuation of such proceedings being vitiated by provisions of the Act is a show prosecution and abuse of process of law so as to cell for interference by this Court by invoking Section 482 Crpc, so also for passing order u/s. 258 Crpc which has been declined by the trial court and revisional court. The learned Public Prosecutor supported the reasonings assigned by the courts below under the impugned orders. Having considered rival contentions and perused the impugned orders, it is explicitly clear that though prayer has also been made to quash proceedings but in fact this petition u/s. 482 Crpc assails the orders declining to invoke Sec. 258 Crpc for stoppage of proceedings upon complaint of the respondent No. 2 Insecticide Inspector for violation of provisions of the Act. In my considered view, power u/s. 258 Crpc to stop the proceedings can be exercised sparingly and only if there is no evidence against the accused, he can be discharged or acquitted as the case may be, depending on the stage to which the proceedings have reached, and above all from a plain reading of Section 258 Crpc it is patently clear that power to stop proceedings can only be exercised in any summons case instituted otherwise than upon complaint. In other words, exercise of such power u/s. 258 is restricted firstly to summons case and secondly it can be exercised in summons cases instituted upon complaint. Section 2 (w) defines `summons case' which means a case relating to an offence and not being a `warrant case'. `warrant case' is defined in Section 2 (x), which means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Offence alleged in the impugned complaint is punishable u/s. 29 of the Act. according to which for the first offence maximum punishment is two years or with fine which may extend to two thousand rupees or with both. Sec. 2 (d) Crpc defines `complaint' which means any allegation made orally or in writing to a Magistrate with a view to his taking action under Crpc that some person whether known or unknown, has committed an offence but does not include a police report. According to explanation to Sec. 2 (d) Crpc a report made by a police officer in a case which discloses after investigation the commission of a non cognizable offence shall be deemed to be a complaint. According to Sec. 2 (1) Crpc, `non cognizable offence' means an offence for which a police officer has no authority to arrest without warrant, whereas as per Sec. 2 (c) `cognizable offence' means an offence for which a police officer may in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. In the instant case though proceedings have been initiated in a summons case but upon a complaint having been filed before the Magistrate. The Magistrate has already taken cognizance of the offence. Therefore, this was not a case where it could be said that proceedings has been instituted otherwise than on a complaint. As per the impugned order of the learned subordinate Magistrate, after having taken cognizance of the offence, only dealer and distributor (accused) have put their appearance and no appearance has been put on behalf of the manufacturing company or its Director & Managers (who are arrayed as accused in the complaint) including present two petitioners and, therefore, there was no question having arisen to release all the accused by invoking Section 258 Crpc. In my considered view, the learned subordinate Magistrate has rightly held application dated 3. 2. 96 as not maintainable and the reasons assigned by him are sustainable for not invoking Section 258 Crpc. Therefore, I do not find any justification to exercise inherent powers of this Court u/s. 482 Crpc against the impugned orders of two courts below because there is no abuse of process of any court or otherwise any circumstance to secure the ends of justice.
(3.) FURTHER this petition u/s. 482 Crpc is not maintainable at the instance of the accused (petitioners) who as is evident from the impugned order of the learned subordinate Magistrate have not at all appeared before him in complaint after having taken cognizance of the commission of offence u/s. 29 of the Act despite issue of process and summons against them, inasmuch as if carefully looked at the application u/s. 258 Crpc filed on 3. 2. 96 (certified xerox copy thereof has been produced as Ann. 2 to the instant petition) I find that it bears signature of one Jainarain Bhutra from whose shop sample was taken by the respondent No. 2 which was found not conforming to the prescribed standard. That being so, the learned Magistrate in his order dated 30. 3. 2000 directed the counsel for the other accused to produce rest of co- accused. Moreover the present petition u/s. 482 Cr. PC is only by the manufacturing company and its Dy. GM (quality control) (who have even not put their appearance before the Magistrate in complaint case), and not by other co-accused atleast the dealer from whose shop the insecticide sample was taken by the inspector (respondent No. 2), because under sub Section (3) of Sec. 24 of the Act the report signed by an Insecticide Analyst shall be conclusive evidence only against a person from whom the sample had been taken, and that apart, sub section (4) comes into operation unless the sample has already been tested or analysed in the Central Insecticide Laboratory. That being so, the Apex Court in YRS Rao vs. Dy Director of Agriculture (1), held as under:- "we are of the view that under sub section (3) of Section 24 the report signed by an Insecticide Analyst shall be conclusive evidence only against a person from whom the sample had been taken and who had the opportunity to notify his intention to contest its correctness as mentioned therein but had availed of such opportunity. "sub-section (4) comes into operation when the sample has not already been tested or analysed in the Central Insecticide Laboratory. " Where a person has under sub-sec. (3) of Section 24 notified intending for adducing evidence in controversion of the Insecticide Analyst's report the Court may by its own motion, or in its discretion at the request of either the complainant or of the accused cause the sample of the insecticide produced before the Court u/s. 22 (6) to be sent for test or analysis to the Central insecticide Laboratory which shall make the test or analysis and report in writing signed by or under the authority of its Director, the result thereof and such report shall be conclusive evidence of the facts stated therein and of nothing else. I lent support from decision in YRS Rao vs. Dy Director of Agriculture (supra) wherein the Apex Court, however, categorically observed. "we are not now called upon to decide in this case which arises out of a writ petition whether such report can be read against a person from whom the same is not taken. This is the function of the criminal court. We leave open this question as well as the question of constitutionality of the provision if such report is said to be conclusive evidence also against such person. " No doubt, sub-section (3) of Sec. 24 of the Act gives a right to a person from whom the sample was taken for controversion of the insecticide analyst's report against the evidence of the facts stated in the report of insecticide analysis but it does not give such a right to a person from whom the sample was not taken viz. distributor or manufacturer herein. Hence this petition is also not maintainable at the instance of the manufacturing company on the ground of deprivation of a right which is not given to u/s. 24 (4) of the Act for reanalysis. ;