Raghvendra S. Chauhan, J.@mdashAggrieved by the continuation of the proceedings in Criminal Case No. 56/2008, pending before the Chief Judicial Magistrate, Bundi, for offence u/s 29(1)(a) of the Insecticides Act, 1968 (''the Act'', for short), the petitioners have approached this Court. In brief the facts of the case are that on 22nd July, 2005, the Insecticide Inspector - cum - Assistant Director of Agriculture (Plant Protection) went to the premises of M/s. Gautam Krishi Sewa Kendra, at Taleda, in District Bundi, the petitioner No. 3, and took samples of a herbicide called IMAZETHAPYR 10% SL. The said herbicide was manufactured on 15.06.2005 and was due to expire on 14.06.2007. On 01.08.2005, a sample of the said herbicide was sent to the Regional Pesticides Testing Laboratory, Chandigarh. Vide report dated 03.04.2006, the Laboratory informed the Assistant Director of Agriculture that the active ingredient was only 8.3% instead of 10% as claimed in the herbicide. Thus, the said herbicide was misbranded. On 05.06.2006, a show cause notice was issued to the petitioner No. 3. Vide reply dated 19.06.2006, the petitioner No. 3 informed the Assistant Director of Agriculture that, in fact, the said herbicide was manufactured by BASF India Ltd., the petitioner No. 1. They further informed that they had bought the said herbicide from the Distributor, M/s. Jain Agencies situated at Gulabbari, Ladpura, Kota, (the respondent No. 2 before this Court). Lastly, they claimed that they questioned the veracity of the report of the Laboratory. Therefore, a chance should be give to them to have the sample tested by an independent laboratory. Upon a request made by the petitioner No. 3, a sample was sent to the Central Insecticides Laboratory, Faridabad. Vide report dated 25.08.2006, the said Laboratory claimed that the active ingredient was only 9.02% and not 10%. Since the herbicide was manufactured by the petitioner No. 1, since it was distributed by respondent No. 2 and since it was sold by petitioner No. 3, the petitioner Nos. 1 to 4 and respondent Nos. 2 and 3 were sought to be made accused in a complaint to be filed against them. Therefore, the Insecticide Inspector sought a sanction against them from the Joint Director of Agriculture (Plant Protection). Vide order dated 30th July, 2007, the Joint Director of Agriculture issued the sanction order for the prosecution of the petitioners and respondent Nos. 2 and 3. Eventually, on 11.02.2008, a complaint was filed against the petitioners and respondent Nos. 2 and 3 for offence u/s 29(1)(a) of the Act. It is essential to note that the complaint was filed much after the shelf life of the herbicide had expired on 14.06.2007. But despite this fact, the trial court is continuing with the trial. Hence, this petition before this Court.
2. Mr. Reashm Bhargava, the learned counsel for the petitioners, has raised the following contentions before this Court: firstly, the sanction order has been passed mechanically by the Joint Director of Agriculture. For, it has been passed in a proforma style. It neither gives any details about the facts of the case, nor shows the application of mind. Although the sanction has been given against Mr. Chandrakant V. Deshpande, petitioner No. 2, and against Mr. Chandra Prakash Sharma, petitioner No. 4, but it does not utter a word as to how they are responsible for the day to day functioning of their respective Company or firm. Therefore, the sanction order is legally unsustainable. In order to buttress this contention, the learned counsel has relied upon the cases of Crop Health Products Ltd. vs. State (2005 (3) RCC 1584) and M/s. Gupta Chemical vs. State (2004 (2) RCC 1057).
3. Secondly, even the complaint filed is unsustainable as it does not mention material particulars. For, it does not mention how the petitioners were in-charge of, or responsible to the Company for conduct of its business. Moreover, it does not mention how the offence u/s 29(1)(a) of the Act was committed by them, or how it was committed with their consent, or with their connivance. A mere statement that "M/s BASF India Ltd. has violated the provisions of the Act as they are manufacturer of the herbicide and the others have also violated the provisions of the Act as they are responsible for maintaining the quality of the product", such a statement is too vague to make out a case of vicarious liability. In order to buttress this contention, he has relied upon the cases of
4. Thirdly, the learned counsel has drawn a distinction between Section 24(3) and Section 24(4) of the Act. According to him, both the sub-sections deal with two different persons and are independent of each other. Therefore, each sub-section gives the same right, the right to challenge the finding of the Laboratory, but operates at two different levels. However, in the present case, the petitioner Nos. 1 and 2 have been denied the right u/s 24(4) of the Act. Therefore, the trial stands vitiated.
5. Lastly, relying on the case of
6. On the other hand, Ms. Alka Bhatnagar, the learned Public Prosecutor, has vehemently contended that the spread of insecticide and herbicide is causing havoc both to agriculture and to the health of the people. A herbicide which is produced spuriously and does not meet the standard is highly harmful to the farmers who use such herbicide. Therefore, a serious view should be taken; the manufactures, the distributors and the dealers deserve to be punished for such offence. Therefore, she has supported the continuation of the criminal proceedings against the petitioners.
7. Heard the learned counsel for the parties, perused the sanction order, and the documents submitted before this Court, as well as, the case law cited at the Bar.
8. This case raises the following interesting questions of law and facts:
(i) What is the scope of a sanction order? Should it contain the necessary details and should it show the application of mind or can it be passed in a mechanically manner? Whether a valid sanction order has been passed in the present case or not?
(ii) Whether the complaint suffers from any legal lacunae or not? Whether it is imperative to reveal the responsibility of the private accused-person towards the functioning of the Company/firm or not?
(iii) What is the scope and ambit of Section 24(3) and (4) of the Act?
(iv) What is the effect of filling a complaint after the expiry of the shelf life of the product? Does such filing violate the right of the accused to defend himself? Does such violation vitiate the trial or not?
9. Recently, in the case of
10. No Court of law can forget that the right to a fair trial is part of the fundamental right of the accused under Articles 21 and 22 of the Constitution of India. Every person has the right to defend his "personal liberty" and his "life" against the mighty power of the State. Moreover, under the common law, the first principle of criminal jurisprudence is that "every person is presumed to be innocent till proven guilty". Therefore, it is essential for the State to establish the guilt of the accused. Furthermore, the law provides certain safeguards and certain defences to the offender in order to protect his/her interest. Cases under the Act are a paradigm example of how law provides certain safeguards and defences to the accused-person.
11. Under the Act, an accused cannot be tried until and unless a sanction order is issued for his prosecution. The grant of a sanction is not a mere formality to be completed, but is a powerful tool to check the arbitrary exercise of the power by the Department to prosecute a person; it is a powerful check on the functioning of the Officers of the Department. A sanction order must necessarily enumerate the material facts of the case; it should also reflect the application of the mind of the sanctioning authority. A sanction order is not a railway reservation slip to be filled up mechanically. Since a sanction order adversely affects the liberty of a person, much caution and care should be observed by the sanctioning authority. In the case of Crop Health Products Ltd. (Supra), this Court clearly observed that the sanction order must contain the facts constituting the offence and should also show as to how the sanctioning authority has come to the satisfaction that the accused-persons are responsible for the commission of the offence.
12. In the present case the sanction order is as under:
OFFICE ORDER
In exercise of the powers conferred under Sub-Section (1) of Section 31 of the Insecticides Act, 1968 (Central Act, 46 of 1968) and after careful examination of the case, I, hereby give written consent on behalf of the State Government (Authorized vide Govt. Notification No. F. 4 (4) Agri./Gr.2/A/79, dated 19.04.1984) to Insecticide Inspector and District Extension Officer, CAD Bundi to institute the case for prosecution u/s 29(1) a of the Insecticides Act, 1968 against the following form sample of Imazethapyr 10% SL, Batch No. A3-PS-083 manufacturing date 15.06.2005, expiry date 14.06.2007 which was declared misbrand by RPTL, Chandigarh vide no. 643/CCC/RPTL/11/05-06/4416 dated 03.04.2006 & CIL, Faridabad Re-analysis report No. 4663 dated 14.07.2006.
DEALER:
(1) M/s. Gautam Krishi Sewa Kendra, Hanumanji ke mandir ke samne, Talera (Bundi)
(2) Shri Chandra Prakash Sharma S/o Shri Shivdutt Sharma, Prop. of M/s. Gautam Krishi Sewa Kendra, Hanumanji ke mandir ke samne, Talera (Bundi)
DISTRIBUTOR:
(1) M/s. Jain Agencies, Gulab Bari, Ladpura, Kota.
(2) Shri Ashish Jain S/o Shri Surendra Jain R/o Rajasdan, Gulab Bari, Ladpura, Kota Prop. of M/s. Jain Agencies, Gulab Bari, Ladpura, Kota.
MANUFACTURER:
(1) M/s. BASF India Ltd. Regd. Office Mahindra Tower, Dr. Bhonshlle Marg, Worli, Mumbai 400018.
(2) Shri Chandrakant V. Deshpande S/o Shri Vasant R. Deshpande R/o B-702, Prestige Park, Ganeshwadi, Panchpakhadi, Thane-400601, responsible person for quality control u/s 33 of Insecticide Act at M/s. BASF India Ltd. 228, GIDC Estate, Panoli-394116 District-Bharuch, Gujrat.
Joint Director of Agriculture
(Plant Protection) Raj. Jaipur.
13. A bare perusal of the sanction order clearly reveals that the order is bereft of the material facts of the case. The order does not reveal as to who had taken the sample, the date on which the sample was taken, the place from where the sample was taken. It merely directs the Insecticide Inspector and District Extension Officer to institute the case of prosecution u/s 29(1) a of the Act. Therefore, the sanction order is vague in its content. Moreover, while granting sanction for prosecution of petitioner Nos. 2 and 4, it nowhere discusses their role either in the Company or in the firm respectively. It nowhere mentions how these two offenders are responsible to the Company/firm for the conduct of its business. It nowhere mentions whether they are in-charge of the overall control of day to day business of the Company/firm. Interestingly, as far as the petitioner No. 4, Mr. Chandra Prakash Sharma is concerned, it merely names him as a proprietor of M/s. Gautam Krishi Sewa Kendra, but it nowhere discusses as to how he is responsible for the lack of the active ingredient in the herbicide. After all, it is not the dealer, who had manufactured the alleged misbranded herbicide. Thus, this Court is of the opinion that the sanction order lacks not only the essential facts, but most importantly lacks the due application of mind. Moreover, it suffers from a colourable exercise of power. Hence, the said sanction order is clearly unsustainable.
14. A bare perusal of the complaint, filed as Annexture-9, also clearly reveals that it nowhere discloses as to how the offences were committed by the petitioners, especially by petitioner Nos. 2 and 4. It nowhere deals with their vicarious liability - as being responsible to the Company for the conduct of its business, or whether the offence has been committed with their consent, or with their connivance or was caused due to their neglect. In the present case, it is highly unclear as to how Mr. Chandra Prakash Sharma, the proprietor of M/s. Gautam Krishi Sewa Kendra, is responsible for the manufacturing activity. Since the herbicide was manufactured by BASF India Ltd., obviously, Mr. Chandra Prakash Sharma, the proprietor of M/s. Gautam Krishi Sewa Kendra, has no connection with the manufacturing of the herbicide. Moreover, there is no allegation that as the dealer of the herbicide, he had done anything to reduce the active ingredient in the herbicide. On the other hand, the allegation against Mr. Chandrakant V. Deshpande, an allegation not made in the complaint, but mentioned in the sanction order, is that he was responsible for the quality of the product manufactured by BASF India Ltd, However, there is no indication either in the sanction order, or in the complaint as to how Mr. Chandrakant V. Deshpande was responsible for the quality of the product.
15. Launching of a prosecution and forcing the people to face a criminal trial is not a mere formality. In catena of cases, the Apex Court has clearly opined that facing of a trial causes hardship to the people in terms of money, energy and reputation. Therefore, people should not be subjected to a trial carelessly and apathetically. In the present case, the criminal complaint also suffers from lack of details. It does not make out any causal relationship between the offence and the accused-persons. Therefore, the second contention raised by the learned counsel for the petitioners deserves to be accepted.
16 It is, indeed, trite to state that "delay defeats justice". This is more true of cases under the Insecticide Act, under the provisions of Food Adulteration Act and other laws dealing with samples of product. It is, indeed, common knowledge that the sample of product, especially chemical product, have a limited life span.
17. The Insecticide Act bestows certain defences upon the accused-persons.
18. Section 24 of the Act is as under:
24. Report of Insecticide Analyst.
(1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under Sub-section (6) of Section 22, shall, within a period of thirty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed from.
(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 produce before the Magistrate under sub-section (6) of section 22 to be sent for test or analysis to the said laboratory, which shall within a period of thirty days, 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-section (4) shall be paid by the complainant or the accused, as the court shall direct.
19. A bare perusal of the Act clearly reveals that Section 24(3) and Section 24(4) deal with two different persons and deal with two different situations. Section 24(3) of the Act deal with "the person from whom the sample was taken". Whereas Section 24(4) of the Act deals with "the accused". It is not necessary that the person from whom the sample was taken is arrayed as the accused. Thus, both the clauses may deal with two different individuals. Moreover, Section 24(3) of the Act gives a right to the person from whom the sample was taken to challenge the finding of the laboratory and to demand that the sample be sent to an independent laboratory for its impartial opinion. Similarly a person arrayed as an accused is given the right to have the sample tested by the Central Insecticide Laboratory. Thus, both Sections 24(3) and 24(4) of the Act provide the same right of questioning the validity of the report of the analyst. Interestingly, while sub-section 24(3) of the Act provides this right upon a person who is not arrayed as an accused, sub-section 24(4) of the Act provides the same right on the same person in case he were arrayed as an accused subsequently. Thus, in case the person from whom the samples have been taken does not exercise his option u/s 24(3) of the Act, he would still be entitled to exercise his option u/s 24(4) of the Act in case he were to be arrayed subsequently as an accused.
20. According to sub-section 24(3) of the Act, in case the person, from whom the sample is taken, does not express his intention to challenge the report of the analyst, then such a report is a conclusive evidence of the facts stated therein. However, in case the said person were to express his intention to challenge the said report, then the report of the analyst cannot be treated as a conclusive evidence. Moreover, according to sub-section 24(4) of the Act, if an accused expresses the same intention, then the report of the Central Insecticide Laboratory shall be treated as a conclusive evidence of the facts stated therein. Thus, a combined reading of sub-section 24(3) of the Act and sub-section 24(4) of the Act clearly reveals that a valuable right has been given both to the person from whom the sample is taken and to the accused to challenge the finding of the analyst.
21. Of course, this is in fitness of things as the accused has to be given sufficient opportunity to defend his position. Moreover, while providing this opportunity to the accused u/s 24(4) of the Act, the provision clearly states that the report received from the Central Insecticide Laboratory shall be conclusive evidence of the fact stated therein. Section 24(4) of the Act thus provides a powerful tool to the accused to defend himself.
22. In the case of
Thus, it would be clear that after the inspection and seizure of the insecticide, the Insecticide Inspector shall divide the insecticide into three portions, as contemplated and in the manner prescribed and deliver one such sample to the manufacturer or person from whom insecticide was taken. One should be sent to the Insecticide Analyst. After the receipt of the report, the accused would be notified of the result of the report. Thereafter, the complaint is required to be lodged in the Court. At that stage, two options are open to the accused. The accused is entitled to have one copy of the sample entrusted to him to have it notified to the Court for proving to be contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the Court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under sub-section (3) of Section 24. The other option is, after the complaint is laid in the Court, the copy of the sample that is lodged with the Court by the Insecticides Inspector, would be requested to be sent by the Court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, consent (sic) and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court.
23. In the case of Northern Mineral Ltd. (Supra), while dealing with the interpretation of Section 24(3) of the Act and Section 24(4) of the Act, the Hon''ble Supreme Court has held as under:
From a plain reading of Section 24(3) of the Act, it is evident that an accused within 28 days of the receipt of the copy of the report of the Insecticide Analyst to avoid its evidentiary value is required to notify in writing to the Insecticide Inspector or the court before which the proceeding is pending that it intends to adduce evidence in controversion of the report. Section 24(4) of the Act provides that when an accused had notified its intention of adducing evidence in controversion of the Insecticide Analyst''s report u/s 24(3) of the Act, the court may of its own motion or in its discretion at the request either of the complainant or the accused cause the sample to be sent for analysis to the Central Insecticides Laboratory.
Under the scheme of the Act when the accused had notified its intention to adduce evidence in controversion of the report of the Insecticide Analyst, the legal fiction that the report of the Insecticide Analyst shall be conclusive evidence of the facts state in its report loses its conclusive character. The legislature has used similar expression i.e. the "intention to adduce evidence in controversion of the report" in both sub-section (3) and sub-section (4) of Section 24 of the Act, hence both the expressions have to be given one and the same meaning. Notification of an intention to adduce evidence in controversion of the report takes out the report of the Insecticide Analyst from the class of "conclusive evidence" contemplated under sub-section (3) of Section 24 of the Act. Further, the intention of adducing evidence in controversion of the Insecticide Analyst''s report clothes the Magistrate with the power to send the sample for analysis to the Central Insecticides Laboratory either on its own motion or at the request of the complainant or the accused.
In the face of the language employed in Section 24(4) of the Act, the act of the accused notifying in writing its intention to adduce evidence in controversion of the report in our opinion shall give right to the accused and would be sufficient to clothe the Magistrate with the jurisdiction to send the sample to the Central Insecticides Laboratory for analysis and it is not required to state that it intends to get the sample analysed from the Central Insecticides Laboratory. True it is that report of the Insecticide Analyst can be challenged on various grounds but the accused cannot be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion. The moment it is done, the conclusive evidentiary value of the report gets denuded and the statutory right to get the sample tested and analysed by the Central Insecticides Laboratory gets fructified.
24. In the case of M/s. Bharat Insecticides Ltd. (Supra), this Court had laid down elaborate guidelines while dealing with the scope of Section 24(3) of the Act and Section 24(4) of the Act. It would be beneficial to reproduce the said guidelines as under:
(a) On receipt of Insecticide Analyst''s report, the Insecticide Inspector shall deliver one copy of the report to the person from whom the sample is taken. In case the sample is found sub-standard or mis-branded and the Inspector intends to launch prosecution against other persons also, then a copy of the said report should be make available to all the accused against whom the report is sought to be used in order to give them an opportunity to challenge the correctness or authenticity of the report within the specified time as provided in sub-section (3).
(b) The right to challenge Analyst''s report within 28 days of the receipt of a copy of such report as provided in sub-section (3) should be available to all the accused against whom the report is sought to be used in the criminal prosecution.
(c) If the correctness of Analyst''s report is challenged by the person from whom the sample was taken or any other accused within the prescribed period, the Insecticide Inspector is bound to send the second part of the sample/container, which was restored to the person from whom the sample was taken to the CIL for re-testing or re-analysing. If this interpretation is not taken, the very purpose of giving one part of the sample to the person from whom it was taken shall be meaningless. Further, the opening words of sub-section (4) "Unless the sample has already been tested or analysed in the Central Insecticides Laboratory" indicate that the second sample can be got analysed or tested in the CIL without intervention of the Court.
(d) In case the second sample is sent for re-testing or re-analysing in the CIL as aforesaid, the report of the CIL shall be conclusive and there would be no further right to any accused to get the third sample produced in the Court to be analysed or re-tested in the CIL.
(e) In case, the second sample is not analysed or re-tested as aforesaid for any reason, including that criminal proceedings in respect of the sample are pending in the Court, the third sample may be sent for analysing or re-resting by the Court on its own motion or at the request either of the complainant or of the accused, as the case may be.
(f) After receipt of a copy of Analyst''s report if the same is not challenged by any of the accused within the prescribed period, it would be conclusive u/s 24(3) of the Act and it would not be open to be challenged by them in the criminal proceedings which are pending or initiated against them. In that situation, it would not be open for them to say that they have been deprived of their right to get the sample re-tested or re-analysed in the CIL. In case, the Analyst''s report was not made available to other accused before launching prosecution against them, they should have a right to get a report from the CIL by making request to the court concerned to get the third sample produced in court re-tested or re-analysed.
(g) In case the second part of the sample is not sent to the CIL for re-test or re-analysis inspite of the notification expressing intention to adduce evidence in contravention of the report made within 28 days and the prosecution is launched after inordinate delay i.e. after the expiry of the shelf-life period of the insecticide, then it would be fatal to the prosecution as it would deprive the accused of their valuable right to get the sample tested or analysed in the CIL.
25. In the case of Northern Mineral Ltd. (Supra), the Apex Court was distressed to note the casual manner in which the whole exercise of collection of the sample and the filing of the complaint was carried out. It has noted that "all who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to the Lime schedule, so that innocent person are not prosecuted and real culprits not let off."
26. Similarly, this Court is pained to notice the cavalier fashion in which the complaint was submitted knowing fully well that the expiry date of the herbicide was long over. Such a submission of a complaint amounts to an abuse of the process of the court, and process of the law. Such an arbitrary exercise of power not only jeopardizes the liberty of a citizen, but also undermines the faith of the people both in the functioning of the Executive and in the judicial process. Such careless and apathetic action further shakes he faith of the people in the Rule of Law.
27. Moreover, the delay in filing the complaint would deprive the accused of his valuable right of defence bestowed by Section 24(4) of the Act. It has come to the notice of this Court that, at times, the complaint is filed before the expiry of the shelf life of the product, but the accused-persons cannot be served till after the expiry date of the product is over. Secondly, most of the time, complaints are invariably filed after the expiry date of the product is long over. In either case, the delay defeats justice. While on one hand, the accused is deprived of the valuable right of the defence provided u/s 24(4) of the Act, on the other hand, the society loses the chance to try and punish the offender. Thus, such a delay is harmful both to the accused, in particular, and to the society, in general. Thus, the Insecticide Inspector should be more vigilant, and more prompt in completing the collection of the sample and the filing of the complaint. For the reasons stated above, this petition is, hereby, allowed and the criminal proceeding in the form of Criminal Case No. 56/2008, pending in the Court of Judicial Magistrate, Bundi is, hereby, quashed.
