- (1.) LAL, J This petition under Section 482 Cr. P. C. seeks quashing of the Criminal proceedings pending in Criminal Case No. 959/96 for the offences under Sections 29 (1) (A) of the Insecticides Act, 1968 (hereinafter called in short, "the Act") in the Court of learned Judicial Magistrate, Ist Class, Vijaynagar, Sriganganagar.
(2.) BRIEFLY stated, the relevant facts of the case are that Dr. P. N. Katiyar, the then Agricultural Officer (Plaint Protection)-cum-Inspector Insecticides, IGNP, Anupgarh alongwith Surjeet Singh Asstt. Agricultural Officer and Chhaganlal Sharma Agricultural Area Assistant inspected the shop of Handling Agent M/s. Rajasthan State Agro Industries Corporation Ltd. C/o Tharnia Agro Services Centre, Jaitsar on 23. 2. 92 at 11. 45 a. m. in the presence of its owner Shri Gopiram Tharnia. They took and sealed the samples of methyle parathion 2 per cent Dust bearing batch No. 160 manufacturing date November, 1992 and expiry date after 1994 manufactured by M/s. Gupta Chemicals, Jaipur as per Rules. A sample was forwarded directly to the Director Central Insecticides Laboratory for chemical examination and analysis. The report of the chemical examination and analysis dated 22. 3. 93 was received and as per this report, the sample was found to be mis- branded as active ingredient content was found only 1. 84 per cent instead of 2 per cent Dust as was shown on the sample. A notice alongwith a copy of the report was sent to the Handling Agent M/s. Rajasthan State Agro Industries Corporation Ltd. , Jaitsar as well as to the petitioners on 12. 3. 93. The petitioners sent their reply through letter dated 24. 3. 93 and submitted that the sample be got tested but that was not done. The complaint in this case was filed in the Court of learned Judicial Magistrate, Anupgarh on 16. 3. 94 whereupon cognizance was taken and the accused persons were summoned for 18. 8. 94 on which date, power was filed on their behalf. Then the case was transferred to the newly created Court of the Judicial Magistrate, Vijaynagar where it is now pending. As no substantial progress was made in the trial of the case for over two years, the petitioners applied to the Court below to drop the proceedings but their application was dismissed on 7. 12. 96. They preferred a revision before the learned Additional District and Sessions Judge, Raisinghnagar which was also dismissed on 18. 3. 2000. Thereafter, alleging that the pendency of these criminal proceedings is nothing but an abuse of the process of the Court, the petitioners have filed this petition inter-alia on the ground that in spite of their request to get the sample tested and analysed it has not been done and in the meanwhile, the shelf life of the sample has expired in April, 1994 before their appearance in Court on 18. 8. 94. So they have been deprived of their valuable right to get the sample tested. The other ground taken in the petition is that the learned Courts below have fallen into grave error in not dismissing the complaint in spite of the pronouncement of the Hon'ble Supreme court in the `common Cause Case' (1 ). Learned counsel for the petitioners has not pressed the ground with regard to dropping of criminal proceedings pending against the petitioners on the ground of `common Cause Cases' in view of the latest pronouncement of the Seven Judges Bench of the Hon'ble Supreme court in the case of P. Ramchandra Rao vs. State of Karnataka (2) wherein the aforesaid judgment in the `common Cause Case' has been declared to be not good law. Now, the sole contention of the learned counsel for the petitioners, is that the sample having been got examined by the Director Central Insecticides Laboratory, Faridabad, the accused- petitioners have been deprived of their valuable right to get it tested by the Central Insecticides Laboratory and to get the report of the State Analyst superseded by the report of the Director Central Insecticides Laboratory. In this regard, the learned counsel has placed reliance on M/s. Bharat Insecticide Limited & Ors. vs. The State of Rajasthan & Anr. (3) and M/s. S. N. Chemical & Anr. vs. State of Rajasthan & Ors. Learned Public Prosecutor on the other hand has submitted that the petitioners having already availed of their remedy by way of filing criminal revision before the learned Additional Sessions Judge this petition under Section 482 Cr. P. C. is not maintainable as it tantamounts to circumvention of the specific bar provided in Section 397 (3) of the Cr. P. C.
(3.) I have given my anxious and thoughtful consideration to the rival submissions made at the bar and have also gone through the record. It may be stated at the outset that it is not in dispute and is rather an admitted fact that the sample in this case was not got tested by the State Analyst but was sent straight to the Director Central Insecticides Laboratory, Faridabad and as per its report the sample has been found to be misbranded. No doubt, in the aforementioned authorities relied upon by the learned counsel for the petitioners, it has been held that by getting the sample tested by the Director C. I. L. , in the first instance, the petitioners are deprived of their valuable right to get it tested by it and on that ground the proceedings have been quashed in those cases. But the Hon'ble Supreme court in the case of Ramshanker Mishra vs. State of U. P. (5) has held otherwise. It was a case under the Drugs and Cosmetics Act, 1940 where the Inspector of Drugs, Kanpur went to the shop of M/s. Mishra Bros. on 22. 2. 66 and purchased 4 packets of Prednisolone which was stocked there and sent the same to Director Drugs Control, Calcutta for analysis. The report of the Director indicated that the sample was of sub-standard quality. A complaint was lodged by the Drugs Inspector against the appellant Ramshanker Mishra for the offence punishable under Section 27 of the Drugs and Cosmetics Act, 1940 and after trial he was held guilty and sentenced. The appeal as also the revision filed by him were dismissed and while dismissing the review petition the High Court granted a certificate on the ground that it raised substantial questions of law. It may be pertinent and appropriate to state here that the provisions of Section 25 (4) of the Drugs and Cosmetics Act, 1940 are admittedly identical to the provisions of Section 24 (4) of the Act, which reads as under:- " Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub- section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the court may, of its own motion or in its discretion at the request either of the complaint or the accused; cause the sample of drug or cosmetic produced before the Magistrate under sub-section (4) of Section 23 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, the Director of the Central Drugs Laboratory the result thereof, and such report shall conclusive evidence of the facts stated therein. " ;