- (1.) These petitions filed under Section 482, Cr. P.C. raise a common point of law and, as such, those are being decided by this common judgment.
(2.) It will be conductive to detail out skeletal facts of each case. A. FACTS OF HINDUSTHAN CIBA GEIGY' S CASE : (i) Petitioner No. 1 is a Public Limited Company, registered under the Companies Act. The petitioner No. 2 Mr. M. R. Lal was formerly working as Secretary of the Company, while petitioner No. 3 Mr. Ravi Bhatnagar is working as its Regional Manager. It is alleged that petitioner No. 4 Munq Hansar was working as Managing Director of the said Company till April, 1989 and that now he is abroad. Respondent No. 3-M/s. Shreeram Pesticides is the dealer of the petitioner Company at Hanumangarh, while respondent No. 4 is a partner of the dealer Company. (ii) It appears that on 20-8-1990, Shri Murari Lal Sharma, Insecticides Inspector, Hanumangarh, took a sample of Insecticide Fencron (Fenavalerate 20% EC) of Batch No. 32, having date of manufacture September, 1989 and date of expiry 31-8-1991; for analysis from the shop of M/s. Shreeram Pesticides, Hanumangarh. The sealed sample thereof was sent to the Central Insecticides Laboratory, Faridabad, which was received there on 19-9-1990. The Junior Chemist of the said Laboratory on analysis found that the said sample's Higher Active Ingredients contained 24.5% instead of 20% as mentioned on the label and thus, the said sample did not conform to I.S. specifications of active ingredient requirement and was, therefore, misbranded. The Insecticides Inspector delivered a copy of the Analysis Report to the dealer company from whom the sample was taken. The Licensing Authority (Deputy Director, Agriculture (Tilhan), Hanumangarh Junction), vide his letter dated 15-12-90, issued a notice to the petitioner-Company, and the dealer Company, alleging that pursuant to damage caused to American cotton crop of one of the farmers, a sample of Fenavalerate 20% EC (Fencron), marketed by the petitioner-Company was drawn from M/s Shreeram Pesticides on 20-8-90; that a part thereof was sent for analysis to the CIL (Central Insecticides Laboratory) and that the same was found to contain more active ingredients than labelled and was, therefore, mis-branded. The petitioner-Company as well as the Dealer were directed to show cause as to why proceedings for cancellation of their registration and licence be not initiated under the provisions of the Insecticides Act, 1968 (in short, 'the Act') and the Insecticides Rules, 1971 (in short 'the Rules'). (iii) The petitioner-Company in its reply dated 21-1-91, inter alia, asserted that the report of the Analyst was not correct and that the Rajasthan State has appointed State Analyst as per provisions of the Act and there was no reason why the sample should have been sent directly to the C.I.L. at Faridabad. It was also mentioned therein that the State Laboratory's result can be challenged or controverted by the person from whom the sample was drawn by requesting analysis of third sample taken by the Insecticides Inspector by C.I.L. and, as such, it was highly improper and illegal and to send the sample directly to the C.I.L. It appears that no further action was taken by the Insecticides Inspector, till 17-8-1991, when he sent the case to the Joint Director (Plant Protection), Rajasthan, Jaipur, who has been authorised by the State Government for grant of prosecution sanction. The said authority issued his written consent by his order dated 30-8-91 for launching prosecution under Section 29(1)(a) of the Act against the petitioner-Company, dealer Company. In pursuance thereof ultimately on 4-10-1991, the Insecticides Inspector filed a criminal complaint in the court of learned Munsif and Judicial Magistrate, Hanumangarh, against the petitioners and respondents Nos. 3 and 4 after the expiry of shelf-life of the insecticide of which sample was taken. The learned Magistrate took cognizance and issued summons to the petitioners and respondents Nos. 3 and 4 to appear before him on 30-9-1992. (iv) The petitioners contend that due to filing of criminal complaint after the expiry of shelf-life of the product, they have been deprived of their valuable right to get that sample re-analysed by the C.I.L. and that due to delay in filing of the prosecution, the right conferred on the accused u/S. 24(4) of the Act has become illusory and meaningless. They have further contended that the consent under Section 31 of the Act was also bad and illegal, since no particulars regarding the produce, the report of the Analyst or findings of the Analyst, have been mentioned therein. The petitioners, therefore, assert that the proceedings drawn against them tantamount to abuse of the process of the court and prayed that those be quashed. B. FACTS OF INDOPHIL CHEMICAL'S CASE: (i) The petitioner-Indophil Chemicals Company, is a Division of M/s Modipon Limited, which is a public limited Company, registered under the Companies Act. The said Company manufactures among other products of pesticides, the pesticide known as Mancozeb 75% having trade name DITHANE-M 45 and sells its products throughout India. The petitioners Nos. 2, 3, 4 and 5 are legal Manager, Sales Manager, Regional Sales Manager and Branch Executive respectively of the said Company. (ii) It appears that on 27-11-1990, a sample of Mancozeb 75% (DITHANE M 45) from Batch No. 90-04-010, manufactured in April, 1990 having date of expiry of shelf-life March, 1992, was taken from the dealer M/s Rathi Pesticides and Fertilizers, Mathania (non-petitioner No. 3) by the Insecticide Inspector, Jodhpur for the purposes of analysis under Section 22 of the Act. One of the sealed sample was sent to the Insecticide Analyst, Regional Pesticides Testing Laboratory, Chandigarh (in short RPTL). The Senior Technical Assistant, RPTL, Chandigarh, received the sample on 3-12-90 and completed analysis on 10-1-91 and by his letter dated Nil reported that the said sample did not conform to the active ingredient test requirements and, as such, it was misbranded, as it contain less active ingredient viz. 68.41% instead of 75% WP. The Insecticides Inspector by his letter dated 4-2-91, sent a copy of the analysis report to the dealer M/s Rathi Pesticides and Fertilizers, Mathania and directed it to show cause as to why criminal complaint be not Filed against it under the Act and the Rules. A copy of the letter was also endorsed to the petitioner-Indofil Chemicals Company and M/s Atoz India, Jodhpur (Distributors) to show cause as to why criminal complaint be also not filed against them. However, no report of the Insecticides Analyst was supplied to them. Respondent No. 3 by its letter dated 15-2-91, informed that they did not agree with the Analysis Report, asserted that they reserved their right of getting the sample reanalysed under Section 24(4) of the Act and requested that the third sample be sent for reanalysis to the C.I.L. The petitioner-Company by its letter dated 19th February, 91, informed that they were not aware of the drawing of the sample, that they also did not know as to which sample, from which batch number was taken or whether the sample was manufactured by the petitioner Company or not and claimed that the said Analysis Report was not the conclusive evidence against them and that they did not accept the same as correct. The petitioner-Company also asserted that since there is a testing laboratory in the State of Rajasthan and Insecticide Analyst has also been appointed by the State Government, therefore, it was not permissible to the Insecticide Inspector to have sent the sample to any part of the Country as per his choice. (ii) It further appears that the said Insecticide Inspector did not take any further action in the matter till 20-4-92, when he sent the case to the Joint Director, Agriculture (Plant Protection), Rajasthan, Jaipur, for grant of prosecution sanction. The said authority by its office order dated 6-5-92, gave written consent on behalf of the State Government for instituting the criminal complaint under Section 29(1)(a) of the Act, against the dealers (non-petitioners Nos. 3 and 4), the distributors (non-petitioners No. 5 and 6) and the manufacturers (petitioners Nos. 1 to 4). In pursuance thereof, the Insecticide Inspector filed the criminal complaint on 25-5-92 against the petitioners and non-petitioners No. 3 to 6 before learned Chief Judicial Magistrate, Jodhpur City, who took cognizance and issued summons to the petitioners. It is alleged that summons was served on the petitioner-Company on 27-1-94. The petitioners contend that the criminal complaint was filed against them after expiry of shelf life of the product. Therefore, they have been deprived of an important and valuable right to get the sample reanalysed by the C.I.L. under Section 24(4) of the Act and that the Insecticide Inspector was also not authorised to send the sample to the C.I.L in the first instance and pray that the criminal proceedings initiated against them be quashed.
(3.) No reply has been filed on behalf of the State Government or the Insecticide Inspector in both the petitions despite ample opportunity.;