Northern Mineral Ltd vs Union Of India & Anr

the insecticide expired in February, 1994. The appellant

company and Respondent No.2 herein i.e. M/s. Jindal Traders

were arrayed as accused in the said complaint. Appellant filed

application for discharge under Section 245 of the Criminal

Procedure Code. But the learned Magistrate by Order dated

13th November, 1999 dismissed the same, inter alia observing

as follows :

"Since the accused did not make prayer for getting the second sample reanalyzed, the authorities cited at bar by the learned counsel for the accused do not render any assistance to the accused. Rather, authority cited by learned Additional PP for the State is fully applicable Moreso, the case is yet at its threshold and therefore, only prima facie commission of offence has to be taken into consideration at this stage. The 4

plea of the learned counsel for the accused that sample was drawn from the sealed container will be evaluated after adducing the evidence which would be adduced during the course of trial. Consequently, both the applications for discharge of the accused stand dismissed being devoid of any merit."

3. Aggrieved by the aforesaid order, the appellant preferred

Criminal Revision No. 170 of 2000 before the High Court of

Punjab and Haryana. Revision application preferred by the

appellant was heard alongwith Criminal Revision Petition No.

106 of 2000 preferred by another accused in a different case.

The High Court by Order dated 5th November, 2001 dismissed

the Revision Application preferred by the appellant. While

doing so, the High Court observed as follows:

"The upshot of the above discussion is that the weight of the judicial opinion of the Hon'ble Supreme Court of India and of this Court favours the petitioners case that re-analysis is a valuable right which gets defeated if the complaint is filed after the expiry date and consequently the proceedings must be dropped. The question which is now required to be considered is whether the petitioners exercised their right to seek re-analysis or not. The replies to the Show-Cause Notices indicate that Apex Mineral did seek re-analysis whereas Northern Minerals did not. Re-analysis by Central 5

Insecticides Laboratory was not done in neither case. Where a party does not ask for a second analysis it should not be permitted to complain that its right of re- analysis has been defeated. This grievance can only be valid if a party seeks re- analysis before expiry but was denied this right.

Consequently, Northern Minerals case must fail. Criminal Revision No. 170 of 2000 is dismissed."

4. From the facts stated above, it is evident that the

complaint was filed on 16th March, 1994 whereas shelf life of

insecticide expired in February, 1994. The appellant had

given its intention to adduce evidence in controversion of the

report to Insecticides Inspector but had not specifically prayed

for analysis of the sample by the Central Insecticides

Laboratory.

5. Mr. Arun Nehra, learned counsel appearing on behalf of

the appellant submits that every insecticide has its shelf life

and with passage of time, it loses its efficacy and therefore

after the expiry of the shelf life of the insecticide, it may not

conform to the standard specifications. He submits that in

view of the aforesaid, the shelf-life shall have serious

consequence when Insecticides are tested or analysed after 6

expiry of shelf-life. In support of the submission, reliance has

been placed on a decision of this Court in the case of State of

Haryana vs. Unique Farmaid (P) Ltd. & Ors. (1999) 8 SCC

190 and our attention has been drawn to the following

passage from para 10 of the judgment, which reads as follows:

"10. It has been submitted before us as well as before the High Court that the Insecticide Inspector was not competent to send the sample for retesting to the Central Insecticides Laboratory and that request for retesting should have been made to the court concerned. Then the State has further submitted that no other defence than prescribed under Section 30 of the Act could be allowed to be raised in the prosecution filed under the Act and further that the shelf life of the sample was not relevant as the Act does not prescribe any expiry date. There is no substance in either of these contentions. If the expiry date is not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the dates of manufacture of the article and the expiry date are mentioned. We do not find any answer to this by the State."

6. We find substance in the submission of Mr. Nehra and

the decision relied on clearly supports his contention. Statute

mandates disclosure of expiry date of the insecticide. The

form prescribed for submission of the report by Insecticide 7

Analyst contains columns for the date of the manufacture and

expiry. Insecticides are substances specified in the schedule

of the Insecticides Act and from perusal thereof it is evident

that many of substances with passage of time may lose its

identity if exposed or comes into contact with other substance.

Therefore, there is no escape from the conclusion that shelf-

life of an insecticide shall have its bearing when it is

tested or analysed in the laboratory.

7. Mr. Nehra submits that the appellant admittedly had

conveyed, within 28 days of the receipt of the report, its

intention to adduce evidence in controversion of the report of

the Regional Pesticides Laboratory in terms of Section 24(3) of

the Insecticides Act, 1968 (hereinafter referred to as the "Act").

He points out that the language of sub-section (3) as well as

sub-section (4) of Section 24 of the Act is very clear and leaves

no room of any ambiguity and it nowhere obliges the accused

to state that it intends to get sample analysed from the Central

Insecticides Laboratory. He emphasizes that sub-Section (3)

only postulates the accused to notify to the Insecticide

Inspector or the Court that it intends to adduce evidence in 8

controversion of the report. In his submission, if such a

requirement is read it would tantamount to adding words in

sub-Section (3) as well as sub-Section (4) of Section 24 of the

Act. In sum and substance, submission of Mr. Nehra is that

the law does not require the accused to say in addition that it

demands analysis of the sample by the Central Insecticides

Laboratory. He submits that when appellant conveyed its

intention to lead evidence in controversion of the report, it

would imply demand for sending the sample to Central

Insecticides Laboratory for test and analysis. In support of the

submission, he has placed reliance on a decision of this Court

in the case of State of Punjab vs. National Organic

Chemical Industries Ltd. (1997) SCC (Crl.) 312 and our

attention has been drawn to the following passages from para

5 of the judgment which reads as follows :

"5.................. 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 Insecticides Laboratory and adduce evidence of the report so 9

given. That such certificate by the Director of 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 Insecticide 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, content 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."

8. Another decision relied on by the appellant to buttress its

submission is the decision of this Court in the case of Unique

Farmaid (P) Ltd. & Ors. (Supra) wherein it has held as

follows:

"12. It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticide Inspector or the court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases 10

the Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report."

9. Yet another decision on which reliance is placed is the

decision of this Court in the case of M/s. Gupta Chemicals

Pvt. Ltd. & Ors. Vs. State of Rajasthan & Anr. JT 2002

(Suppl.1) SC 516, the relevant portion reads as follows :

"12. From our perusal of the aforequoted provisions it is manifest that ordinarily in the absence of any material to the contrary, the report of the Insecticides Analyst will be accepted as final and conclusive of the material contained therewith. This is, however, subject to the right of the accused to have the sample examined by the Central Insecticides Laboratory provided he communicates his intentions for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this right vested under the statutes valuable for the defence, particularly in a case where the allegations are that the material does not conform to the prescribed standard. As noted earlier in the present case the appellants had intimated the insecticide inspector their intention to have the sample tested in the central insecticides laboratory within the prescribed period of 28 days of receipt of the copy of the state analyst report, yet no step was taken by the inspector either to send the sample to the central insecticides laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction 11

on the part of the inspector, it has not been possible for the appellant to have the sample examined by the central insecticides laboratory and in the meantime, the shelf-life of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of court. The High Court was not right in dismissing the petition filed under Section 482 of Cr.P.C."

10. Counsel representing the respondents, however,

contends that excepting intimating its intention to adduce

evidence in controversion of the report of the Regional

Pesticides Laboratory specific request was not made to send

the sample for test and analysis by the Central Insecticides

Laboratory and, hence, failure to send the sample for test and

analysis by the Central Insecticides Laboratory in no way

defeats the right of the accused. The submission advanced

necessitates examination of scope and ambit of Section 24(3)

& 4 of the Act, same read as follows :

"24. Report of Insecticide Analyst.-

xxx xxx xxx xxx 12

(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 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."

xxx xxx xxx xxx 13

11. 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 report under Section

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 stated in its report looses its

conclusive character. The Legislature has used similar

expression i.e. the "intention to adduce evidence in 14

controversion of the report" in both sub-section (3) and sub-

section (4) of Section 24 of the Act, hence both the expression

has 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 intention of adducing evidence

in controversion of the Insecticide Analyst report clothes the

Magistrate 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 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

the jurisdiction to send the sample to Central Insecticide

Laboratory for analysis and it is not required to state that it

intends to get sample analysed from the Central Insecticides

Laboratory. True it is that report of the Insecticides Analyst

can be challenged on various grounds but accused can not be 15

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

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.

12. The decisions of this Court in the cases of National

Organic Chemical Industries Ltd. (Supra), Unique Farmaid

(P) Ltd. & Ors. (Supra) and M/s. Gupta Chemicals Pvt. Ltd.

(Supra), in our opinion do support Mr. Nehra's contention.

True it is that in first two cases, the accused, besides sending

intimation that they intend to adduce evidence in

controversion of the report accused persons have specifically

demanded for sending the sample for anlaysis by the Central

Insecticides Laboratory. However, the ratio of the decision

does not rest on this fact. While laying down the law, this

Court only took into consideration that accused had intimated

its intention to adduce evidence in controversion of the report

and that conferred him the right to get sample tested by 16

Central Insecticides Laboratory. The decision of this Court in

the case of M/s Gupta Chemicals (supra) is very close to the

facts of the present case. In the said case "on receipt of the

information about the State Analyst report the appellants sent

intimation to the Inspector expressing their intention to lead

evidence against the report" and this intimation was read to

mean "their intention to have the sample tested in the Central

Insecticides Laboratory". From the language and the

underlying object behind Section 24(3) and (4) of the Act as

also from the ratio of the decisions aforesaid of this Court, we

are of the opinion that mere notifying intention to adduce

evidence in controversion of the report of the Insecticide

Analyst confers on the accused the right and clothes the court

jurisdiction to send the sample for analysis by the Central

Insecticides Laboratory and an accused is not required to

demand in specific terms that sample be sent for analysis to

Central Insecticides Laboratory. In our opinion the mere

intention to adduce evidence in controversion of the report,

implies demand to send the sample to Central Insecticides

Laboratory for test and analysis.

17

13. Section 24(3) of the Act gives right to the accused to

rebut the conclusive nature of the evidence of Insecticide

Analyst by notifying its intention to adduce evidence in

controversion of the report before the Insecticide Inspector or

before Court where proceeding in respect of the samples is

pending. Further the Court has been given power to send the

sample for analysis and test by the Central Insecticides

Laboratory of its own motion or at the request of the

complainant or the accused. No proceeding was pending

before any Court, when the accused was served with

Insecticide Analyst report, the intention was necessarily

required to be conveyed to the Insecticide Inspector, which

was so done by the appellant and in this background

Insecticide Inspector was obliged to institute complaint

forthwith and produce sample and request the court to send

the sample for analysis and test to the Central Insecticides

Laboratory. Appellant did whatever was possible for it. Its

right has been defeated by not sending the sample for analysis

and report to Central Insecticides Laboratory. It may be 18

mentioned herein that shelf life of the insecticides had expired

even prior to the filing of the complaint. The position therefore

which emerges is that by sheer inaction the shelf life of the

sample of insecticides had expired and for that reason no step

was possible to be taken for its test and analysis by Central

Insecticides Laboratory. Valuable right of the appellant having

been defeated, we are of the opinion that allowing this criminal

prosecution against the appellant to continue shall be futile

and abuse of the process of Court.

14. We are distressed to note the casual manner in which the

whole exercise has been done. Insecticide Inspector had

collected the sample on 10th September, 1993 and sent it to

the Insecticide Analyst for analysis and report. Insecticide

Analyst submitted its report dated 13th October, 1993. Notice

of the report was sent to the appellant on Ist November, 1993,

in reply whereof by letter dated 17th November, 1993 it

intimated its intention to adduce evidence in controversion of

the report. The shelf-life of the pesticide had not expired by

that time but expired in February 1994. However, permission 19

to file complaint was given on 23rd February, 1994 and the

complaint was actually filed on 16th March, 1994. Had the

authority competent to grant consent, given consent and

complaint lodged immediately after the receipt of intimation of

the accused, sample could have very well sent for analysis and

report, before the expiry of shelf-life. It is interesting to note

that Section 24(3) and (4) of the Act obliges the Insecticide

Analyst and Central Insecticides Laboratory to make the test

and analysis and report within thirty days. When 30 days is

good enough for report, there does not seem any justification

not to lodge complaint within 30 days from the receipt of the

intimation from the accused and getting order for sending the

sample for test and analysis to the Central Insecticides

Laboratory. 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 time-schedule, so that

innocent persons are not prosecuted and real culprits not left

out.

15. In the result, the appeal is allowed, the impugned

judgments of the High Court as also that of the Chief Judicial 20

Magistrate refusing to discharge the appellant are set aside

and the appellant is discharged of its criminal liability.

........................................J. ( HARJIT SINGH BEDI )

........................................J. ( C.K. PRASAD )

New Delhi, July 7, 2010.