YAMIN, J. - (1.) THESE two Cr. Misc. Petitions are to be decided together as both of them challenge the complaint dated 29. 10. 1991 and cognizance in Cr. Case No. 605/91 pending before the Judicial Magistrate, Anupgarh District Sriganganagar. Learned Magistrate, by order dated 29. 10. 1991, proceeded against the accused persons whose names are mentioned in the complaint. They are eight in number.
(2.) BRIEFLY stated, Pramod Narain Katiyar was Insecticide Inspector at the relevant time and was authorised to submit complaint under Section 31 of the Insecticides Act, 1968 (hereinafter referred as `the Act' ). On 25. 10. 1990 M/s Zamidara Agro Chemicals was checked and sample of monocrotophos 36% SL was pur-chased vide bill No. 3276. The sample was sent for analysis to the Directorate of Plant Protection, Quarantine and Storage Central Insecticides Laboratory, Faridabad (Haryana ). It did not confirm to the relevant standard i. e. specification in its active ingredient content acidity test requirements and was found to be substandard and misbranded. Notice was given to M/s Zamidara Agro Chemicals, Anupgarh. Thereafter sanction was obtained. It was also stated in the complaint that manufacturing company was M/s S. N. Chemicals Industries and it has also committed offence. As stated earlier, learned Magistrate took cognizance against all the eight persons mentioned in the complaint. I have heard Shri Suresh Kumbhat in Cr. Misc. Petition No. 604/94 and Shri M. L. Choudhary in Cr. Misc. Petition No. 62/95 on behalf of the petitioners; as well as learned Public Prosecutor on behalf of State of Rajasthan. The common grounds to set aside the proceedings, order taking cognizance and the complaint are that the sample was not sent to the Public analyst but directly to the Central Laboratory and the accused petitioners were denied the right to get the sample analysed from the Central Laboratory, that the sanction was not proper and that Section 33 of the Act was not complied as well as the report of the analyst was not served to manufacturing firm or its partners. Counsel for M/s Zamidara Agro Chemicals Shri M. L. Choudhary submitted that the sealed article was purchased from the manufacturer and that his clients were not at all responsi-ble for misbranding. On the other hand, learned Public Prosecutor submitted that it is in very exceptional cases that the order of cognizance can be quashed as per State of H. P. vs. Pirthi Chand & Anr. (1), and the present one is not such an exceptional case. I have gone through all the papers. The admitted case of the parties is that the Insecticide Inspector checked M/s Zamidara Agro Chemicals, Purani Mandi, Anupgarh on 25. 10. 1990. The sample was taken and sent to the Central Insecticides Laboratory for analysis where it was found to be misbranded. The contention of the learned counsel is that the sample should not have been sent to the Central Laboratory as sub-section (1) of Section 24 of the Act provides that the sample will be submitted to the Insecticides Analyst and sub-section (4) of this Section provides that the report of the Director of the Insecticides Laboratory shall be conclusive evidence of the facts stated therein. According to the learned counsel it means that the petitioners have been denied their valuable rights to get the sample analysed from the Central Insecticides Laboratory. They relied on certain judgments of this Court in which this point was directly in issue and it was held that if a sample is directly sent to the Central Insecticides Laboratory, it frustrates and defeats the intent and purpose of Section 24 (4) of the Act which confers an important and valuable right to the accused to get another sample further tested or analysed in the said laboratory. In M/s Gupta Chemicals Pvt. Ltd. and others vs. State of Rajas-than & another (2), such a point was directly in issue and it was held that when criminal complaint suffers from patent inherent and legal infirmity, when an important and valuable right of the accused to get the counter sample further analysed is frustrated, dragging the prosecution against the accused would clearly amount to abuse of process of the Court. It is well settled that the right of an accused to get the sample analysed from Central Laboratory is a valuable right and in a latest judgment of Hon'ble Supreme Court in State of Haryana vs. Unique Farmaid P. Ltd. & Ors. (3), it has been held that when an accused was deprived of his valuable right to have the sample tested from the Central Insecticides Laboratory under sub-Section (4) of Section 24 of the Act, it prejudices his defence. In the cases in hand va-luable right of the accused petitioners has been prejudiced as they had no opportunity to get the sample analysed from the Central Laboratory as the Insecticide Inspector himself directly sent the sample to the Central Insecticides Laboratory. The case of M/s Gupta Chemicals Pvt. Ltd. (supra) fully covers these cases.
(3.) THE next contention of the learned counsel for the petitioners is that the prosecution sanction is not legal and valid as it does not contain the facts constituting offence nor grounds for satisfaction. It has also been submitted that the sanction on its face value shows that it has been given mechanically and without application of mind of the competent authority. Section 31 of the Act provides that no prosecution for an offence under this Act shall be instituted except by or with the written consent of the State Government or a person authorised in this behalf by the State Government. In M/s Gupta Chemical's case (supra) the point was considered and it was held that when sanction does not contain the facts constituting offence nor grounds for satisfaction, it is not a valid sanction. Learned counsel for the petitioners relied on a number of judgments of Punjab and Haryana High Court apart from this judgment of the Rajasthan High Court on this point. In M/s Dhamija Sales Corporation vs. State of Punjab (4), and in Manjit Singh & Ors. vs. State of Punjab (5), the sanction was in a cyclostyled form. It was observed in these cases that the sanctioning authority was required to apply mind as the same is required to be made to come to the conclusion that not only as to what offence is committed as also as to who has committed the same and who is to be prosecuted. In D. N. Chaturvedi and another vs. THE State of Punjab (6) the sanction did not contain the name of the Insecticide Inspector who took the sample nor did it mention the date of which the sample was taken and how the same was found to be misbranded. It was held that the person who granted sanction did not fully apply his mind and, therefore, the sanction was not valid. In Hanuman Sharma vs. State of Punjab (7) it was held that it was necessary that the date on which sample was allegedly taken should be mentioned in the sanction. I have carefully gone through the sanction of this case. The sanction does not take care of all these points. It simply mentions names of eight accused persons and does not mention even the name of the Insecticide Inspector who had taken the sample of the insecticide and on what date. In view of above said law this sanction cannot be held to be valid. Therefore, the prosecution on the basis of this sanction was bad according to law and has to be quashed. The next contention of the learned counsel was that M/s Zamidara Agro Chemicals and M/s S. N. Chemicals Industries were companies and Section 33 of the Act has not been complied with in relation to them. What Section 33 of the Act provides is that whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was incharge of, or was responsible to the company for the conduct of the business of the com-pany as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly provided that nothing contained in this sub-Section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due deligence to prevent the commission on such offence. Sub-Section (2) of the said Section provides that notwithstanding anything contained in sub-Section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any Director, Mana-ger, Secretary, or other Officer of the company, such Director, Manager, Secretary or other Officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. ;