Indofil Industries Ltd. vs State Of Punjab Insecticide Inspector

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.653 OF 2017 (Arising out of Special Leave Petition (Crl.) No. 9031 of 2016)

Indofil Industries Ltd. and Ors. …Appellants

Versus

State of Punjab …Respondent

JUDGMENT

A.M. KHANWILKAR, J.

1. The appellants invoked the jurisdiction of the High Court of

Punjab and Haryana at Chandigarh under Section 482 of the

Criminal Procedure Code, 1973 being CRM-M-4458 of 2016, for

quashing of the prosecution instituted against them by the State for

an offence punishable under Sections 3(k) (i), 17, 18, 29, 30 and 33 Signature Not Verified Digitally signed by CHETAN KUMAR

of The Insecticides Act, 1968 (for short “the Act”). The principal Date: 2017.07.03 18:22:44 IST Reason:

ground urged before the High Court was about the gross violation of 2

mandatory provisions of the Act particularly Section 22, resulting in

immense prejudice to the appellants. For, the appellants were

neither served with the report of the Analyst nor afforded any

opportunity to exercise their right of analysis of the spare sample.

Whereas, the spare sample was sent for analysis to the Central

Insecticides Laboratory without institution of any proceedings.

Failure to produce the second sample before the Court where the

criminal case was launched against the appellants was contrary to

Section 22(6) (ii) of the Act. It was also contended that the

appellants, who are the manufacturers of the product, were

arraigned as an accused in the criminal case contrary to the spirit

of Section 33 (1) of the Act. These grounds of challenge, however,

did not find favour with the High Court. Hence, this appeal.

2. Briefly stated, on 21st December, 2012, the Insecticide

Inspector, Bhikhi, empowered under Rule 27(5) of The Insecticide

Rules, 1971 (for short “the Rules”), inspected the premises of a firm

M/s Jai Durga Pesticides Store, a licensed dealer and proprietary

concern of one Vinod Kumar (for short “the dealer”). The dealer had

displayed the product insecticide Piroxofop-Propinyl 15% W.P. 3

under the brand name ‘Gromate’ bearing batch No.SGR018

manufactured by the appellants for sale. It is an admitted position

that the dealer had purchased the said insecticide through invoice

No.361203060 dated 24.11.2012. The Insecticide Inspector took

random samples from one out of 500 units of such insecticides

packets, bearing manufacturing date 30.11.2011 and expiry date

29.11.2013. The Insecticide Inspector completed the necessary

formalities for taking the samples and prepared documents of three

parcels which were duly sealed and signed by him, the dealer and

the witnesses. The three different cloth bags were duly sealed. One

of the sealed samples was handed over to the dealer (Vinod Kumar)

and the remaining two bags containing the samples were deposited

in the office of Chief Agriculture Officer, Mansa. Out of the two

samples carried by the Insecticide Inspector, one sample was then

forwarded to the Insecticide Testing Laboratory, Ludhiana (for short

“the State Laboratory”). After the necessary test was conducted, a

report dated 11.01.2013 was sent by the State Laboratory to the

office of the Chief Agriculture Officer, Mansa opining that the tested

sample was misbranded. The said analyst report along with a show

cause notice was then served upon the dealer as well as the 4

manufacturer (appellants) on 22.01.2013 and 11.02.2013

respectively.

3. The dealer (Vinod Kumar) then moved an application before

the Chief Judicial Magistrate, Mansa, praying for analysis of the

spare sample. The Chief Judicial Magistrate allowed the said

application filed by the dealer Vinod Kumar. Pursuant to that order,

the spare sample was forwarded in one sealed packet to the

Director, Directorate of Plant Protection Quarantine and Storage,

Central Insecticide Laboratory, Faridabad, (for short “the CIL”) vide

communication dated 06.04.2013. The CIL analysed the spare

sample received by it and forwarded its report on 17.04.2013,

opining that the sample does not conform to the relevant

specification in the active ingredients content test requirement and

is misbranded. A formal complaint was then filed on 18.05.2015 in

the Court of Chief Judicial Magistrate, Mansa, being Complaint

No.17/2015.

4. As set out hereinabove, the appellants filed a petition under

Section 482 of Cr.P.C. for quashing of the said complaint on the

grounds noted earlier. The High Court by the impugned judgment 5

dated 8th August, 2016, dismissed the said petition. The relevant

extract of the said judgment which falls for our consideration reads

thus:

“The foremost argument of the petitioner’s counsel that they had been denied their legitimate right of reanalysing for which refuge has been taken from the ratios M/s B.R. Agrotech and another vs. State of Haryana CRM-M-23973 of 2012; State of Punjab vs. National Organic Chemical Industries Ltd. MANU/SC1779/1996; Indofil Chemicals Co. Ltd and others Vs. State of Punjab CRM-M-16591 of 2014 and M/s Indofil Chemical Co. Vs. State of Haryana CRM-M-651H of 2011 though, appears to be highly impressive, however, a close look at the provisions bears out that by virtue of Section 24(3) of the Act period of 28 days has been prescribed from the receipt of copy of the report to enable the party to challenge it and unless it is done so a report of the insecticides Analyst shall become conclusive proof. Though, with much vehemence reliance has sought to be placed on M/s B.R. Agrotech case ibid, however, the licensed dealer of the petitioner’s side had moved an application for reanalyzing on 30.01.2013, as a consequence of which, the second sample was dispatched to the Central Insecticide Laboratory, whose report was received on 17.04.2013. The manufacturer on the basis of show cause notice dated 11.02.2013 was fully aware of the outcome of the analysis but did not choose to avail of this remedy throughout and has chosen to wait till the filing of the complaint, though, aware of the fate of the reanalysis as well and the fact that the expiry of the article was to take place w.e.f. 29.11.2013, now at this belated stage the manufacturer cannot be allowed to rake up these pleas when by his own volition he has sought to keep mum over it and with the efflux of time has forfeited his own right and to his own disadvantage for which he cannot derive any such benefit. More so, when the dealer had already availed of this opportunity apparently reflects what is at the back of the mind of the petitioner-manufacturer. The ratios laid down in M/s B.R. Agrotech and another vs. State of Haryana CRM-M-23973 of 2012; State of Punjab vs. National Organic Chemical Industries Ltd. MANU/SC1779/1996; Indofil 6

Chemicals Co. Ltd. and others vs. State of Punjab CRM-M-16591 of 2014 are factually at much variance from the case in hand and so is the fate of M/s Indofil Chemical Co. Vs. State of Haryana CRM-M-6518 of 2011 so relied upon by the petitioners.

The other line of contention based on the ratio M/s Indofil Chemical Co. ibid that sample ought to be sent within 24 hours and has to be sent by the District Agriculture Officer with whom the present samples have been deposited without loss of time and the learned counsel for the petitioners could not pinpoint how there has been violation of any provisions of the Act and the Rules and that a polythene bag is not a suitable container. The plea based on ratios P.D. Garg and others vs. State of Punjab CRM-M-932 of 2014 and State of NCT of Delhi vs. Rajiv Khurana (2010) 11 SCC 469 that the petitioners cannot be held responsible and have no knowledge nor consented or connived in such a process of manufacturing and whether any role is attributable to them or not is a matter of evidence which cannot be gone into at this juncture and, therefore, this argument certainly is brushed aside. This Court taking support from Narinder Kumar Gupta vs. State of Haryana 2006(1) RCR Criminal 862 where similar question of law was taken note of, since the sample in the present case was drawn from the dealer who has duly exercised his right of reanalysis, thus, even otherwise the manufacturer at this juncture cannot have any grouse over denial of such a right when he was fully aware of the outcome of the test so conducted on his product and, thus, manufacturer in the light of Narinder Kumar Gupta case ibid having failed to exercise his option when show cause notice has been sent to him is certainly conclusive evidence against him to this effect. From another angle the plea that the complaint has been filed after the shelf life of the product has expired needs to be relooked from the angle that in the present case the report of the insecticides Analyst was sent to the dealer as well as manufacturer on 22.1.2013 and 11.2.2013 respectively and thus were having opportunity to exercise their option which the dealer has exercised and on his written request on 30.1.2013 spare sample was sent for this regarding which report was received on 17.4.2013 and, therefore, was sufficient opportunity to rebut the evidence to this effect and since the petitioner did not exercise such option as has been 7 laid down in Narinder Kumar Gupta case ibid in that situation filing of the complaint after the expiry of the shelf life of the sample is of no consequence as the right provided under sub-Section (4) of Section 24 of the Act is not available to the petitioners and qua the petitioners-manufacturer the same has become conclusive evidence in terms of Section 24(3) of the Act.”

5. The principal argument before us is that, as per Section 22(6)

(ii) of the Act, the spare sample was required to be submitted along

with the complaint before the Court where the complaint is lodged;

and that, in terms of Section 24(4) of the Act, only that Court is

competent to direct analysis of the spare sample by the CIL either

on its own motion or in its discretion at the request of either the

complainant or the accused. As the appellants have been arraigned

as accused, they had the right to ask for analysis of the spare

sample so produced before the Court in the complaint proceedings.

In the present case, admittedly, the spare sample was sent for

analysis to the CIL much before a formal complaint was filed

against the named accused (including the appellants). As a result,

the appellants could not ask for analysis of that sample. Thus, their

right of adducing evidence in controversion of the insecticide

analyst report has been defeated. That right of the named accused 8

is an indefeasible right. Resultantly, the prosecution launched

against the appellants suffers from a defect which is incurable. In

other words, continuation of the subject criminal complaint against

the appellants will be an exercise in futility and abuse of the

process of Court. In support of the aforementioned contentions

reliance has been placed on the decisions of this Court reported in

State of Punjab Vs. National Organic Chemical Industries

Ltd.1, State of Haryana Vs. Unique Farmaid Pvt. Ltd. and

Others2, Northern Mineral Ltd. Vs. Union of India and

Another3 and M/s Northern Minerals Ltd. and Others Vs.

Rajasthan Government and Another.4 The appellants have also

relied upon two decisions of the Punjab and Haryana High Court in

the case of M/s Ravinder Kumar and Brothers Vs. State of

Punjab5 and M/s Krishi Kainder Vs. State of Punjab6.

6. Per contra, the respondent State contends that in the facts of

the present case, there is no infirmity in the prosecution launched

against the appellants. According to the respondent, the plea taken 1 (1996) 11 SCC 613 2 (1999) 8 SCC 190 3 (2010) 7 SCC 726 4 (2016) 12 SCC 298 5 (1996) Cri. L. J. 4293 6 (1998) Cri. L. J. 351 9

by the appellants, if accepted, would result in adopting a pedantic

approach in the matter. For, there is no express prohibition in the

said Act to send the third sample for analysis to CIL before filing of

a formal complaint. It is open to the Insecticide Inspector to send

the third sample for analysis to the CIL on the representation

received from whomsoever the sample was collected, that he

intends to adduce evidence in controversion of the report of the

State Insecticide Analyst. Rather, it would be the bounden duty of

the Insecticide Inspector to do so with promptitude to effectuate the

right of the person from whom the sample of the insecticide was

collected, to get it analysed from the CIL. In this case, the third

sample was sent to CIL pursuant to the order of the Court passed

at the behest of the authorised dealer of the appellants’ company. If

such request is acted upon by the Insecticide Inspector, it would

not be in contravention of any provision of the Act or the Rules. It is

intended to further the cause of the person concerned to effectively

defend himself in the prosecution to be later on launched against

him. In that, if the analysis report of CIL was favourable to that

person, the competent authority would not launch a prosecution

against that person. Further, there is nothing in the Act to suggest 10

that each accused is entitled to separately request the concerned

Court to send the third sample for analysis to CIL. Analysis by CIL

is possible only once and the report of CIL is conclusive evidence of

the facts stated therein. The counsel for the respondent has placed

reliance on the decision in the case of State of Harayana (supra),

wherein the argument of the State, that the Insecticide Inspector

was not competent to send the sample to CIL, has been rejected in

paragraph 10 of the said decision. He has also placed reliance on

the decision of a three-Judge Bench of this Court in the case of

Gupta Chemicals Pvt. Ltd. and Others Vs. State of Rajasthan

and Another7. In paragraph 11 of the said decision, the Court has

enunciated that it is the right of the accused to have the sample

examined by the CIL. In paragraph 12, the Court noted that if the

Insecticide Inspector receives intimation from the person from

whom the sample was collected about his intention to have the

sample tested from CIL, the Insecticide Inspector may either send

the sample to the CIL or file the complaint in Court with

promptitude to enable the accused to move the Magistrate for an

order to do analysis thereof. In the present case, admittedly, the

7 (2010) 7 SCC 735 11

dealer (Vinod Kumar) himself approached the Chief Judicial

Magistrate for a direction regarding analysis of the third sample

collected from him. That prayer was allowed by the Court, pursuant

to which the third sample was sent to CIL. Acting upon the

aforesaid order, the prosecution has, in effect, venerated the right of

that person to get the sample tested or analysed from the CIL. The

purport of sub-section (4) of Section 24 is two-fold. Firstly, it

bestows a right upon the person from whom the sample is collected

or the accused, to seek testing and analysis of the third sample

from the CIL. The second facet of the same provision is to delineate

the evidentiary value of the report of the CIL. If the analysis of the

sample has been done by the CIL, the right of the accused to have

the sample analysed, which flows from sub-section (4), does not

endure. That is made amply clear from the opening statement found

in sub-section (4) of Section 24 which predicates, unless the sample

has already been tested or analysed by the CIL. In other words, the

right bestowed on the person from whom the sample is collected or

for that matter the accused arraigned in the formal complaint as

filed, is ignited only if the sample has not been analysed by the CIL

before institution of the complaint. It is contended that the 12

obligation cast upon the Insecticide Inspector under Section 22 (6)

(i), is to forward one portion or container to the insecticide analyst

for analysis. It is, therefore, open to the Insecticide Inspector to

send the sample to the State Insecticide Laboratory and/or to the

CIL. The expression “Insecticide Analyst Test or Analysis” has not

been defined in the Act or the Rules made thereunder. Section 3 (c)

of the Act defines “Central Insecticide Laboratory” and Section 3 (f)

defines “Insecticide Analyst”. Both are separate and independent

authorities. The former is established in terms of Section 16 of the

Act by the Central Government and the latter is established by the

Central Government or State Government under Section 19 of the

Act. It is thus submitted that Section 24 (4) has no application to

the fact situation of the present case as the report of the CIL of

analysis of the third sample was already obtained at the instance of

the dealer before the expiry date of the product i.e. 29.11.2013.

That report could be made the basis to proceed against all the

accused named in the complaint filed before the Magistrate at

Mansa on 18.05.2015. The appellants could not have insisted for

testing or analysis of the sample through CIL. Thus, the

non-submission/production of the third sample along with the 13

complaint would not vitiate the prosecution launched against the

appellants. The production of the third sample before the Court

where the proceedings are instituted, is to enable the accused

named in the complaint to apply for analysis thereof from CIL if not

already done, for controversion of the report of the State Insecticide

Analyst. As regards the report of the CIL, by operation of law, it is

conclusive evidence of the facts stated therein, in terms of second

part of Section 24(4). It is thus contended by the respondent State

that the conclusion reached by the High Court whilst dismissing

the petition filed by the appellants for quashing of the prosecution

launched against them, is unassailable and for which reason this

appeal is devoid of merits.

7. Having cogitated over the rival submissions, we find force in

the argument of the respondent State. Before we embark upon the

merits of the present case, we deem it apposite to analyse the

decisions pressed into service by the appellants. In the case of

State of Punjab (supra), it was an admitted position that the

person (respondent company in that case) from whom the sample

was collected by the Insecticide Inspector after receipt of the show 14

cause notice and the report of the State Insecticide Analyst, had

requested the competent authority to send the third sample for

analysis to CIL. That was not done by the Insecticide Inspector. The

respondent, therefore, challenged the institution of prosecution

against it on the ground that the testing/analysis of the third

sample by CIL was delayed beyond the expiry date of the insecticide

in question and that the sample in the custody of the competent

authority was not sent to the CIL, which deprived the respondent of

its valuable defence. In paragraph 6 of the reported decision, the

Court observed thus:

“6. Unfortunately, in this case, the appellant did not adopt the course as was required under the Act. Of course, the respondent, without availing of the remedy of report by the Director of CIL, may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail of the statutory defence. The appellant had not given the third sample to the respondent. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him. Under these circumstances, we think that further proceedings in the Court of the Chief Judicial Magistrate would be rendered fruitless. Consequently, though for different reasons the complaint quashed by the Court may be justified warranting no interference.” 15

8. In the case of State of Haryana (supra), the sample was

collected by the Insecticide Inspector from the shop of the dealer on

5th August, 1994. The State Insecticide Analyst report was received

mentioning that the sample was found to be misbranded. This

analysis report of the sample was sent to the dealer and the

manufacturer on 30th September, 1994. Reply to the said show

cause notice was given by the manufacturer on 8 th October, 1994.

The Insecticide Inspector after obtaining consent for launching the

prosecution on 24th June, 1995, filed criminal complaint by which

time the validity of the product had expired. In this backdrop, the

grievance of the accused was that they received summons to appear

before the Court, by which time they had lost their right to get the

third sample analysed from the CIL under Section 24 (4) of the Act.

In other words, the Insecticide Inspector failed to act upon the

request made by the accused person from whom the sample was

collected and also the manufacturer of the product, to get the

sample analysed/tested from the CIL. Notably, in that case the

State had contended that the Insecticide Inspector, on his own,

could not have forwarded the third sample for testing to the CIL and

that that request could only be considered by the concerned Court. 16

This Court expressly rejected this contention as being devoid of

substance. This authority, in our opinion, will be of no avail to the

appellants. Rather, it supports the contention of the respondent

State that the Insecticide Inspector is competent to send the third

sample for testing to the CIL on receipt of representation in that

regard from the person from whom the sample was obtained. Even

in the case of Gupta Chemicals Pvt. Ltd. (supra), a three-Judge

Bench of this Court has expressly held in paragraph 12 of the

reported judgment that the Insecticide Inspector ought to have

taken steps to send the third sample to the CIL or promptly filed a

complaint in the Court to facilitate the accused to move the

concerned Court for appropriate directions in that behalf. Intrinsic

in this dictum is that the Insecticide Inspector is obliged to send the

third sample for analysis to the CIL on his own, if such request is

received from the concerned person intending to rebut the report of

the State Laboratory. In that case, the sample was collected by the

Insecticide Inspector on 31st October, 1991. The State Insecticide

Analyst report was received by the Inspector on 2 nd January, 1992.

Intimation of that report was given to the dealer on 10 th January,

1992 and to the manufacturer on 16th January, 1992. The expiry 17

date of the product was February, 1993. The complaint was,

however, filed in July, 1994. By that time the shelf life of the

insecticides in question had already expired. On that factual

background, the Court held that the right of the accused to have

the third sample analysed from the CIL, as per Section 24 (4), was

defeated; and as a result, continuation of the criminal prosecution

against the accused would be a futile exercise and an abuse of the

process of Court.

9. In the case of Northern Mineral Ltd. Vs. Union of India

(supra), the situation is no different. The Insecticide Inspector took

the sample on 10th September, 1993. The State Testing Laboratory

report was made ready on 13th October, 1993. That indicated that

the sample was misbranded. A show cause notice was issued to the

appellant therein on 1st November, 1993. The appellant replied to

the said show cause notice on 17 th November, 1993, expressing its

intention of adducing evidence in controversion of the report of the

State Testing Laboratory. Further, although consent for prosecution

was given on 23rd February, 1994, the complaint was filed on 16 th

March, 1994, by which time the shelf life of the insecticide had 18

expired in February 1994. The Court, therefore, accepted the plea of

the said appellant that failure of the Insecticide Inspector to get the

sample tested or analysed from the CIL and also having filed the

complaint after the expiry date of the product, defeated the right of

the appellant to seek direction from the Magistrate for sending the

sample for testing and analysis by the CIL. The dictum in this

decision will have to be understood in that context. The situation is

similar in the case of Northern Minerals Pvt. Ltd. and Others Vs.

Rajasthan Government (supra). The Insecticide Inspector had

collected the sample on 15th October, 1994. The shelf life of the

insecticide in question was to expire in August 1995. The State

Testing Laboratory report was made ready on 13th December, 1994.

A show cause notice was given to the appellant No.1 on 30 th

December, 1994; and was replied to by the appellant No.1 on 3 rd

January, 1995. Reply was given by the appellant No.1 on 6 th

January, 1995, clearly notifying its intention to adduce evidence in

controversion of the report of the State Insecticide Testing

Laboratory. Further, although the written consent authorising the

Insecticide Inspector to launch prosecution was given on 31 st May,

1995, the complaint was filed on 13th September, 1995. Even in 19

that case, the Insecticide Inspector failed to send the sample for

testing/analysis to the CIL before the expiry of shelf life of the

insecticide in question inspite of the request made in that behalf by

the appellant, nor did he file the complaint well before the expiry

date of the insecticide to enable the appellant to apply for a

direction from the concerned Magistrate where the third sample was

produced along with the complaint, for sending it for

testing/analysis to the CIL. The Court, following its earlier decision

founded on the similar fact situation, concluded that continuing

criminal prosecution against the appellant would be a futile exercise

and an abuse of the process of Court.

10. Even the two decisions of the Punjab and Haryana High Court

relied upon by the appellants have dealt with more or less similar

situation where the Insecticide Inspector failed to act upon the

express intention conveyed by the person from whom the sample

was collected to send it to the CIL for testing/analysis. Even the

Criminal complaints filed and the summons received by the

accused were after the shelf life of the insecticide in question had

expired.

20

11. On a bare perusal of Section 21 of the Act, it is amply clear

that the Insecticide Inspector is empowered to take samples of any

insecticide and send such samples for analysis to the Insecticide

Analyst for testing in the prescribed manner. The manner of

dispatch of samples for test or analysis is prescribed in Rule 34. It

predicates as to how each sample is required to be sent by

registered post or by hand in a sealed packet together with a

memorandum set out in Form XII in an outer cover addressed to

the Insecticide Analyst. As per sub-section (5) of Section 22, if the

Insecticide Inspector decides to take a sample of an insecticide for

the purpose of test or analysis, he is obliged to intimate such

purpose in writing in the prescribed form to the person from whom

he takes it and, in the presence of such person unless he wilfully

absents himself, he shall then divide the sample into three portions

and effectively seal and suitably mark the same and permit such

person to add his own seal and mark to all or any of the portions so

sealed and marked. After that, the Insecticide Inspector is expected

to restore one portion of a sample so divided or one container as the

case may be, to the person from whom he takes it and retain the

remainder and deal with same in the manner prescribed in 21

sub-section (6) of Section 22. Out of the remainder, one portion or

container is required to be sent for Insecticide Analyst Test or

Analysis. The second portion is required to be produced before the

Court where the proceedings if any are instituted in relation to the

said insecticide. As noted earlier, the analysis of the sample can be

obtained from either the Insecticide Analyst appointed under

Section 19 or the CIL established under Section 16 of the Act.

12. Before the proceedings are instituted, the Insecticide

Inspector, in terms of Section 24, is obliged to obtain the report of

the Insecticide Analyst. The Analyst is required to deliver the report

to the Insecticide Inspector within the prescribed time (30 days).

Upon receipt of the said report, the Insecticide Inspector is then

required to issue show cause to the person from whom the sample

was taken and retain the second copy of the report for use in any

prosecution in respect of the samples.

13. Sub-sections (3) and (4) of Section 24 are of some significance.

The same read thus:

“24. (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 22

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-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.”

On a bare reading of sub-section (3), it is seen that the first part

declares that the report signed by the Insecticide Analyst shall be

evidence of the facts stated therein and it shall be conclusive,

unless the “person from whom” the sample was taken exercises his

right by notifying in writing within the specified time that he

intends to adduce evidence in controversion of that report. Thus,

the second part of this provision gives a right to the person from

whom the sample was collected to raise an objection. Once the

person from whom the sample was taken exercises that right in

terms of sub-section (4), the conclusiveness of the report of the 23

Insecticide Analyst (State Analyst) referred to in the first part of the

same provision cannot be used against such person. These

provisions are in the nature of rules of evidence. Further, if the

criminal complaint is launched and the person is named as an

accused, he can request the concerned Magistrate before whom the

proceedings are pending to send the third sample produced before

the Court to the CIL for testing or analysis. That right can be

exercised only if the complaint is founded on the report of the State

Insecticide Analyst. However, if the complaint is filed also on the

basis of the report of the CIL, then the question of exercising the

right under Section 24 (4) does not endure to the accused. For, the

purport of Section 24(4) is that the report of the CIL shall be

conclusive evidence of the facts stated therein. It is pertinent to

bear in mind that the opening part of sub-section (4) of Section 24

opens with the words, “Unless the sample has already been tested

or analysed in the CIL”. Therefore, in cases where such report is

already obtained or available, the criminal prosecution must

proceed on that basis. In other words, only if the analysis report of

the CIL is not available or filed along with complaint or placed on

record in the criminal prosecution, would the accused get a right to 24

request the concerned Magistrate to direct testing or analysis of the

third sample produced before that Court by the prosecution from

the CIL and not otherwise. Any other view would entail in rewriting

of the provisions, which are otherwise plain and unambiguous.

Thus, if the report of the CIL has been obtained before filing of the

complaint or pursuant to the direction given by the concerned

Magistrate and made part of record of the criminal prosecution, as

in this case, the accused named in the complaint cannot ask for

analysis of the sample already used at the instance of the person

from whom it was taken and is named as co-accused.

14. To put it differently, the provisions of the Act predicate that

the Insecticide Inspector has ample power to send the sample for

testing or analysis to the CIL on his own. Rather, it is his duty to do

so if such an express request is made by the person from whom the

sample was taken. The argument of the appellants that the

Insecticide Analyst cannot do so unless a formal complaint is filed

and the concerned Magistrate so directs, is in the teeth of the

dictum of this Court in the case of State of Haryana Vs. Unique

Pvt. Ltd. (supra) and Gupta Chemicals Pvt. Ltd. (supra). This 25

Court has expressly rejected that stand taken by the State and has

held that the Insecticide Inspector must take prompt steps to send

the sample to the CIL immediately after the protest is notified about

the report given by the State Insecticide Analyst. The Insecticide

Inspector has the option either to send the third sample on the

request made by the person from whom it was collected to the CIL

for testing or analysis or to launch a criminal prosecution and

submit the third sample in the concerned Court well before the

expiry of shelf life of the Insecticide to enable the accused named in

the complaint to ask for testing or analysis thereof in the CIL. We,

therefore, conclude that the High Court was right in dismissing the

petition to quash the criminal proceedings pending against the

appellants in respect of misbranded insecticide, for the additional

reasons indicated in this judgment.

15. While parting, we make it clear that we have not expressed

any opinion either way on the efficacy of the CIL report in question

including on the issue of admissibility thereof. All questions in that

regard will have to be answered by the trial court. 26

16. Accordingly, we find no merit in this appeal and the same is

dismissed. Interim relief is vacated forthwith

………………………………….J. (Dipak Misra)

………………………………….J. (A.M. Khanwilkar)

New Delhi, Dated: July 3, 2017 27

ITEM NO.1504 COURT NO.2 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No.653/2017

INDOFIL INDUSTRIES LTD. & ORS. Appellant(s)

VERSUS

STATE OF PUNJAB INSECTICIDE INSPECTOR Respondent(s)

Date : 03-07-2017 This appeal was called on for pronouncement of Judgment today.

For Appellant(s) Ms. Shobha, AOR

For Respondent(s)

Hon'ble Mr. Justice A.M. Khanwilkar pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Dipak Misra and His Lordship.

The appeal is dismissed in terms of the signed reportable judgment.

(Chetan Kumar) (H.S. Parasher) Court Master Court Master

(Signed reportable judgment is placed on the file)