GARG, J. - (1.) THIS criminal misc. petition under Sec. 482 Cr. P. C. has been filed by the petitioners, who are manufactures with the prayer that the proceedings of criminal Case No. 77a/91 State vs. M/s Merta Krishak Kraya Vikrya Sahakari Samiti, Merta City and ors. for the offence under Sec. 29 of the Insecticides act, 1968 (hereinafter referred to as "the Act of 1968") pending in the Court of Judicial Magistrate First Class, Merta City be quashed.
(2.) IT arises on the following circumstances:- On 5. 7. 1991, a complaint was filed by Harnath Singh, Assistant Director Agriculture (Quality Control) and Insecticide Inspector, Jaipur in the Court of Judicial Magistrate, Merta City against the present petitioners, who are Manufacturers and apart form them against M/s Merta Krishak Kraya Vikrya Sahakari Samiti, Merta City District Nagaur and its Manager Nathus Ram, who are dealers of the insecticide in question. IT was stated in the complaint that on 25. 7. 1990, Assistant Director Agriculture (Quality Control) and Insecticide Inspector, Jaipur took sample of the insecticide BHC 10% D. P. (Gamma Isomer 1. 3%) from M/s Merta Krishak Kraya Vikrya Sahakari Samiti, merta City, who was dealer and prepared the fard and in that fard, it was also stated that batch number of the insecticide was RB-05 and date of manufacturing was July 1990 and date of expiry was June, 1992 and he divided the sample into three parts as required by law. One of the samples was sent for analysis to the Insecticide Analyst, State Pesticide Testing Laboratory, Govt. of Rajasthan, Durgapura, Jaipur and the Insecticide Analyst, State Pesticide Testing Laboratory, Government of Rajasthan, Jaipur gave his report on 13. 8. 1990, in which it was reported that the sample did not conform to the relevant IS specification No. 561-1978 in active ingredient and hence, it was misbranded. When the sample was not found in accordance with the prescribed standard, a notice dated 30. 8. 1990 was given by the Assistant Director Agriculture (Quality Control) and Insecticide Inspector, Jaipur to M/s. Merta Krishak Kraya Vikrya Sahakari Samiti, Merta City from whom, sample was taken. After obtaining sanction for prosecuting M/s. Merta Krishak Kraya Vikraya Sahakari Samiti, Merta City and its Manager Nathu Ram and present accused petitioners, the present complaint was filed on 5. 7. 1991 in the Court of Judicial Magistrate, Merta City. On this complaint, the learned Judicial Magistrate, Merta City vide order dated 13. 8. 1991 took cognizance against the present petitioner and others mentioned in the complaint for the offence under Sec. 29 of the Act of 1968. From the record of the lower court, it appears that after taking cognizance against the present petitioners and others on 13. 8. 1991, summons were issued against the present accused petitioners and others for appearance, but the case was adjourned form time to time and despite order to issue summons, summons were not issued and for the first time, summons were issued on 20. 10. 1992 and from the order sheet dated 5. 1. 1993, it appears that on that day Nathu Ram, Manager of M/s. Merta Krishak Kraya Vikraya Sahakari Samiti, Merta City appeared, but the present accused petitioners were served for the first time on 19. 8. 1999. In this petition under Sec. 482 Cr. P. C. the following submissions have been made by the learned counsel appearing for the petitioners:- (1) That since no notice alongwith the report of the Insecticide Analyst was given to the present accused petitioners by the Insecticide inspector, therefore, they have lost the valuable right give to them under Sec. 24 of the Act of 1968 to get the sample to be retested by the central Insecticide Laboratory and thus, on this ground alone, the complaint should be quashed. (2) That date of manufacturing of the sample was July 1990 and date of expiry was June 1992 and till then the accused petitioners were not served either with the court notice or notice on behalf of the Insecticide Inspector and therefore, the shelf life of the insecticide in question expired and in such circumstances, the petitioners have been deprived of their valuable right to get the sample re-tested from the Central Insecticide Laboratory and thus, prejudiced their defence and hence, on this ground also, proceedings should be quashed. On the other hand, the learned Public Prosecutor has submitted that since the complaint has been filed before the expiry period of sample in question and in law, it is not required that a notice be given to the manufacturers and, therefore, this petition under Sec. 482 Cr. P. C. be dismissed. I have heard the learned counsel for the accused petitioners and the learned Public Prosecutor and perused the material available on record.
(3.) BEFORE proceeding further, it would be worthwhile to quote here Sec. 24 of the Act of 1968. "report of Insecticide Analyst.- (1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-Sec. (6) of Sec. 22, shall, within a period of sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form. (2) The Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample. (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 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-sec. (6) of Sec. 22 to be sent for test or analysis to the said laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of, 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) The cost of a test or analysis made by the Central Insecticides laboratory under sub-sec. (4) shall be paid by the complainant or the accused, as the court shall direct. " Sec. 21 of the Act of 1968 empowers the Insecticide Inspector to take samples of any insecticide and send such samples for analysis to the Insecticide Analyst for test in the prescribed manner and as per sub-Sec. (5) of Sec. 22 of the Act of 1968, he shall divide the sample into three portions and effectively seal and as per sub-Sec. (6) of Sec. 22, one of the samples shall be forwards by him to the Insecticide Analyst for test or analysis. As per Sec. 24 (1) of the Act of 1968, the Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-Sec. (6) of Sec. 22, shall, within a period of sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form and according to sub-sec. (2) of Sec. 24, the Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and the report of the Insecticide Analyst shall be conclusive evidence unless the person from whom 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 intents to adduce evidence in controversion of the report. Sub- sec. (4) of Sec. 24 casts a duty on the Insecticide inspector to make compliance of th provisions for re-testing etc. From perusing the record of the present case, it appears:- (1) That the sample was taken by the Assistant Director Agriculture (Quality Control) and Insecticide Inspector, Jaipur on 25. 7. 1990 from M/s. Merta Krishak Kraya Vikraya Sahakari Samiti, Merta City, who was dealer. Note :- It may be stated here that M/s Merta Krishak Kraya Vikraya Sahakari Samiti Merta City and its Manager Nathu Ram are not party in this petition. (2) That manufacturing date of the sample, which was taken from M/s. Merta Krishak Kraya Vikraya Sahakari Samiti, Merta City on 25. 7. 1990, was July, 1990 and its expiry date was June, 1992. (3) That the said sample was sent to the Insecticide Analyst, State Pesticide Testing Laboratory, Government of Rajasthan, Durgapura, jaipur for analysis and the Insecticide Analyst gave his report on 13. 8. 1990 and found that the sample was misbranded. (4) That thereafter, a notice alongwith the report was given by Assistant Director Agriculture (Quality Control) and Insecticide Inspector, Jaipur to M/s. Merta krishak Kraya Vikraya Sahakari Samiti, Merta City on 30. 8. 1990. (5) That no notice alongwith the report of the Insecticide Analyst was given to the present accused petitioners, who are manufacturers. (6) That on 5. 7. 1991, a complaint was filed in the Court of Judicial Magistrate, Merta City against the present petitioners and others mentioned in the complaint. (7) That on this compliant, cognizance was taken by the learned Judicial Magistrate Merta City on 13. 8. 1991 against the accused petitioners and others and upto June, 1992, the date of expiry of sample, the present petitioners were not served with the summons of the Court. ;