Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION NO. 184 OF 2013
1. Managing Director
Mahyco Seeds Limited
(now known as Maharashtra Hybrid Seed
Company Limited)
Registered office at Resham Bhavan,
th
4 floor, 78 Veer Nariman Road, Mumbai
Marketing Office at Old Industrial Estate, Jalna
Jalna Office at Post Dawalwadi,
Tq. Badnapur, Distt. Jalna – 431203 (MS)
Shri Rajendra Badrinarayan Barwale
aged 57 yrs., Occp. Business.
2. M/s Mahyco Seeds Ltd.
(now known as Maharashtra Hybrid Seed
Company Limited)
Bhagwat Plot, Akola, Distt. Akola
represented by its responsible person and
Assistant General Manager (Marketing)
Shri Vishwas Pandurang Khuje,
aged 47 yrs., Occp. Service,
Presently working at Maharashtra
Hybrid Seeds Co. Ltd., Navjeevan Complex,
Station Road, Jaipur (Rajasthan).
3. Shri Omprkash Shivdas Mor
Prop. of Varsha Krushi Seva Kendr,
Washim, Distt. Washim.
4. Proprietor, Varsha Krushi Seva Kendra,
Washim, Distt. Washim. :: APPLICANTS
.. Versus ..
State of Maharashtra,
through the Seed Inspector
or Extension Officer,
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Panchayat Samiti, Washim,
Shri Subhash Laxman Awachar.:: RESPONDENT
...................................................................................................................................
Shri Shirish Gupte, Senior Advocate with Shri Prafulla S. Khubalkar, Advocate for
the applicants.
Shri Mukund Ikre, Additional Public Prosecutor for the respondent State.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 16TH JANUARY, 2015.
O R A L J U D G M E N T O R A L J U D G M E N T
1. Heard.
2. Admit. Heard finally by consent of the parties.
3. By this petition, the petitioners are seeking quashing and
setting aside of criminal case bearing S.T.C. No. 1231 of 2007 filed
against the applicant by the Staterespondent under Rules 19 and
23 (g) of the Seeds Rules, 1968 for contravention of the provisions of
Section 6(a) and 7(b) of the Seeds Act, 1966.
4. It has been the case of the State that Sunflower seeds of the
variety MSFH8 of which samples were drawn by the Seed Inspector
on 19/9/2006 were not found to be containing same amount
of germination as was represented by the applicants. It was
represented by the applicants on the label of the packets of the seeds
that seeds had 70% germination capacity, whereas the Seed Analyst,
Nagpur found, upon testing of the seeds sample, that germination
capacity was only 9%.
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5. The main contention of the applicants is that their valuable
right under Section 16(3), Seeds Act, to get the sample tested for its
quality from the Central Seed Laboratory has been seriously hampered
in this case as the prosecution against them was instituted by the State
much after the expiry of shelf life period of the seeds. The seeds were
manufactured on 24/5/2006 and admittedly the date of expiry of
validity of the seeds was 19/11/2006, but the prosecution has been
filed on 07/4/2007 and as such, learned Counsel for the applicants
further submits, important right of the applicants has been violated in
this case.
6. Learned A.P.P. for the State submits that the delay which
has occurred in this case was due to some administrative reasons and,
therefore, the applicants should not be allowed to draw an advantage
from such delay, which cannot be attributed to any negligent or mala
fide act on the part of the concerned officer of the State.
7. In order to appreciate the issue involved in this case, it
would be necessary to first consider to the nature of right conferred
upon the applicants under Section 16 of the Seeds Act, 1966. Section
16 reads as under.:
16. Report of Seed Analyst . (1) The seed Analyst
shall, as soon as may be after the receipt of the sample
under subsection (20) of section 15, analyse the
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sample at the State Seed Laboratory and deliver, in
such form as may be prescribed, one copy of the report
of the result of the analysis to the Seed Inspector and
another copy thereof to the person from whom the
sample has been taken.
(2) After the institution of a prosecution under
this Act, the accused vendor or the complainant may, on
payment of the prescribed fee, make an application to
the Court for sending any of the samples mentioned in
clause ( a ) or clause ( c ) of subsection (2) of section 15
to the Central Seed Laboratory for its report and on
receipt of the application, the Court shall first ascertain
that the mark and the seal or fastening as provided in
clause ( b ) of subsection (1) of section 15 are intact and
may then dispatch the sample under its own seal to the
Central Seed Laboratory which shall thereupon send its
report to the Court in the prescribed form within one
month from the date of receipt of the sample, specifying
the result of the analysis.
(3) The report sent by the Central Seed Laboratory
under subsection (2) shall supersede the report given
by the Seed Analyst under subsection(1).
(4) Where the report sent by the Central Seed
Laboratory under subsection (2) is produced in any
proceedings under section 19, it shall not be necessary
in such proceedings to produce any sample or part
thereof taken for analysis.
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8. A conjoint reading of the subsections of Section 16, in
particular subsections (2) and (3), would make it clear that the right
that law has conferred upon the vendoraccused to get sample tested
from the Central Seed Laboratory is exercisable not before but after the
institution of prosecution against him under the Seeds Act and for
asserting his right all that required is to make an application in that
behalf to the prosecuting Court. Upon receipt of such an application,
the Court is required to send the sample to the Central Seed
Laboratory under it's own seal and a mandatory duty has been cast
upon the Central Seed Laboratory to send its report to the Court within
one month from the date of receipt of the sample, specifying the result
of the analysis. Under subsection (3) it has been made clear that
report sent by the Central Seed Laboratory under subsection (2) shall
supersede the report given by the Seed Analyst under subsection (1).
In other words, the report of Central Seed Laboratory stands as
conclusive proof of the quality of the seeds sample tested by it. Such
conclusive nature of the report of Central Seed Laboratory is what
makes the right of the accused under Section 16(2) valuable and
important.
9. There is almost identical provision existing in the
Prevention of Food Adulteration Act, 1954 (for short, the PFA Act). In
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Section 13(2) of the PFA Act also, similar right has been conferred
upon the accused to get the sample tested from Central Food
Laboratory and it has been further provided in subsection (3) of
Section 13 that the certificate issued by the Director of the Central
Food Laboratory shall supersede the report given by the Public Analyst
under Subsection (1). This right has been held to be indefeasible by
the learned Single Judge of this Court in the latest judgment rendered
in the case of Charandas Vallabhdas Mariwala & others Vs. The State of
Maharashtra (Criminal Application No. 1842 of 1996) delivered on
19/7/2014. While taking this view, the learned Single Judge of this
Court has considered judgment of the Hon'ble Apex Court and also the
judgments of this Court taking similar view. The learned Single Judge
has in particular followed the law laid down by Hon'ble Apex Court in
the case of Municipal Council, Delhi Vs. Ghisa Ram [AIR 1967 SC 970]
wherein the right conferred by Section 13(2) of the Prevention of Food
Adulteration Act has been held to be a valuable one because the
certificate of the Director of Central Food Laboratory supersedes the
report of the Public Analyst and it is treated as a conclusive evidence of
the quality of the sample. Rationale for giving such a status to the
right of the accused under Section 13(2) of the PFA Act as held in
Municipal Council, Delhi Vs. Ghisa Ram is that the right has been given
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to a vendor in order that, for his, satisfaction and proper defence, he
should be able to have the sample kept in his charge analysed by a
greater expert whose certificate is to be accepted by Court as
conclusive evidence and this right would be rendered meaningless if it
is made available to him at a time when character and quality of the
sample which he was allowed to retain in his possession had
deteriorated due to passage of time. Obviously, quality of the sample
would be deteriorated and adversely affected if the sample is to be sent
to the Central Laboratory for retesting and analysis after the expiry of
shelf life and in that case there would occur denial of said valuable
right of vendoraccused.
10. This law has also been followed by the learned Single Judge
of this Court in the case of Shivkukar @ Shiwalamal Nanumal
Chugwani & others Vs. State of Maharashtra, reported in 2010(3)
Bom. C. R.(Cri.) 103 , wherein the learned Single Judge has observed
that the right under Section 13(2) of the Prevention of Food
Adulteration Act has been given to the vendor in order that for his
satisfaction and proper defence, he should be able to have the sample
kept in his charge analysed by a greater expert whose certificate is to
be accepted by the Court as conclusive evidence and as such, if the
sample is to be sent to the Director of Central Food Laboratory after
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expiry of the shelf life, there would be virtual denial this right to the
vendor.
11. Although the above observations have appeared while
considering the nature of right under Section 13(2) of the PFA Act, the
principle of law emerging therefrom can be applied in the instant case
also as Section 16(2) of the Seeds Act confers a similar right as the
right conferred under the provision of Section 13(2) of the PFA Act.
Just like Section Section 13 (3) of the PFA Act, there is similar
provision under Section 16(3) of the Seeds Act, which provides that
the report of the Central Seed Laboratory would supersede the report
of the Seed Analyst thereby indicating that the report of the Central
Seed Laboratory would be conclusive proof of its contents and would
put at rest the controversy in the matter. If the report of the Central
Seed Laboratory is put on a higher pedestal than the report of Seed
Analyst and is to be treated as according finality to the issue of quality
and character of the sample, the right of the vendoraccused to get the
sample tested after institution of prosecution, given under Sec.16(2), is
valuable one, on the principle of law laid down in the Municipal
Council, Delhi Vs. Ghisa Ram (supra) and as held by learned Single
Judge in the case of Charandas Vallabhdas Mariwala & others (supra),
cannot be allowed to be defeated by delay in launching of prosecution
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against vendoraccused. Section 16(2), Seeds Act requires vendor
accused is given an opportunity after institution of prosecution against
him to get the seed sample in his charge retested through intervention
of the Court by Central Seed Laboratory. The opportunity would be
meaningful and realistic only if the quality and character of the sample
is not deteriorated by the passage of time. If the opportunity is made
available to the vendoraccused after the expiry of shelf life of the
seeds sample, it would be obvious that result of the analysis would not
be objective and the right would be rendered meaningless and thus
there would occur virtual deprivation of the right to the vendor
accused.
12. Having considered the law governing the field, now, it
would be necessary to refer to the facts admitted in this case, which
pertain to the dates on which various events have taken place so as to
examine the question as to whether or not there is denial of valuable
right of applicants under Section 16(2), Seeds Act. They could be
stated in brief as under.:
10/9/2006 Sample seized (Sunflower seeds)
10/10/2006 Report by Seeds Analyst
24/5/2006 Seeds manufactured
19/11/2006 Expiry of validity of the seeds.
07/4/2007 Complaint filed. But no action taken.
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20/11/2012 Trial Court passed an order that the
complaint was unattended for long and
hence issue notice to the complainant for
further steps and issue summons to the
accused.
13. It is clear from the above referred events that the
prosecution has been instituted more than four months after the expiry
of shelf life of the seeds and since the right conferred under Section
16(2) of the Seeds Act can be exercised only after the institution of the
prosecution, this right has been virtually denied to the applicants. The
right is valuable and indefeasible. It cannot be taken away in any
circumstance. But, by launching the prosecution after expiry of shelf
life of the seeds, Section 16(2) right, has been smothered in this case
as the result of the analysis of the sample by Central Seed Laboratory
carried out after expiry of validity of seeds is bound to be onesided,
blotched and coloured to the prejudice of the vendoraccused, thereby
sabotaging the very rationale of Section 16(2), Seeds Act of providing
“satisfaction and proper defence” to vendoraccused as held by Hon'ble
Apex Court in Municipal Council, Delhi Vs. Ghisa Ram (supra).
Therefore, the prosecution as launched against the applicants by the
State cannot be sustained in law, it being violative of indefeasible right
of the applicants in this case. By deprivation of this right, the
applicants have been denied an opportunity to prove their defence and
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now the prosecution would only be one sided, which goes against the
well settled principles of Criminal Jurisprudence. Therefore, to secure
the ends of justice, the complaint case filed against the applicants
deserves to be quashed and set aside.
The application is allowed and the Criminal Case No.1231
of 2007 pending before the Court of J. M. F. C., Washim is quashed
and set aside.
JUDGE
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION NO. 184 OF 2013
1. Managing Director
Mahyco Seeds Limited
(now known as Maharashtra Hybrid Seed
Company Limited)
Registered office at Resham Bhavan,
th
4 floor, 78 Veer Nariman Road, Mumbai
Marketing Office at Old Industrial Estate, Jalna
Jalna Office at Post Dawalwadi,
Tq. Badnapur, Distt. Jalna – 431203 (MS)
Shri Rajendra Badrinarayan Barwale
aged 57 yrs., Occp. Business.
2. M/s Mahyco Seeds Ltd.
(now known as Maharashtra Hybrid Seed
Company Limited)
Bhagwat Plot, Akola, Distt. Akola
represented by its responsible person and
Assistant General Manager (Marketing)
Shri Vishwas Pandurang Khuje,
aged 47 yrs., Occp. Service,
Presently working at Maharashtra
Hybrid Seeds Co. Ltd., Navjeevan Complex,
Station Road, Jaipur (Rajasthan).
3. Shri Omprkash Shivdas Mor
Prop. of Varsha Krushi Seva Kendr,
Washim, Distt. Washim.
4. Proprietor, Varsha Krushi Seva Kendra,
Washim, Distt. Washim. :: APPLICANTS
.. Versus ..
State of Maharashtra,
through the Seed Inspector
or Extension Officer,
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Panchayat Samiti, Washim,
Shri Subhash Laxman Awachar.:: RESPONDENT
...................................................................................................................................
Shri Shirish Gupte, Senior Advocate with Shri Prafulla S. Khubalkar, Advocate for
the applicants.
Shri Mukund Ikre, Additional Public Prosecutor for the respondent State.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 16TH JANUARY, 2015.
O R A L J U D G M E N T O R A L J U D G M E N T
1. Heard.
2. Admit. Heard finally by consent of the parties.
3. By this petition, the petitioners are seeking quashing and
setting aside of criminal case bearing S.T.C. No. 1231 of 2007 filed
against the applicant by the Staterespondent under Rules 19 and
23 (g) of the Seeds Rules, 1968 for contravention of the provisions of
Section 6(a) and 7(b) of the Seeds Act, 1966.
4. It has been the case of the State that Sunflower seeds of the
variety MSFH8 of which samples were drawn by the Seed Inspector
on 19/9/2006 were not found to be containing same amount
of germination as was represented by the applicants. It was
represented by the applicants on the label of the packets of the seeds
that seeds had 70% germination capacity, whereas the Seed Analyst,
Nagpur found, upon testing of the seeds sample, that germination
capacity was only 9%.
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5. The main contention of the applicants is that their valuable
right under Section 16(3), Seeds Act, to get the sample tested for its
quality from the Central Seed Laboratory has been seriously hampered
in this case as the prosecution against them was instituted by the State
much after the expiry of shelf life period of the seeds. The seeds were
manufactured on 24/5/2006 and admittedly the date of expiry of
validity of the seeds was 19/11/2006, but the prosecution has been
filed on 07/4/2007 and as such, learned Counsel for the applicants
further submits, important right of the applicants has been violated in
this case.
6. Learned A.P.P. for the State submits that the delay which
has occurred in this case was due to some administrative reasons and,
therefore, the applicants should not be allowed to draw an advantage
from such delay, which cannot be attributed to any negligent or mala
fide act on the part of the concerned officer of the State.
7. In order to appreciate the issue involved in this case, it
would be necessary to first consider to the nature of right conferred
upon the applicants under Section 16 of the Seeds Act, 1966. Section
16 reads as under.:
16. Report of Seed Analyst . (1) The seed Analyst
shall, as soon as may be after the receipt of the sample
under subsection (20) of section 15, analyse the
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sample at the State Seed Laboratory and deliver, in
such form as may be prescribed, one copy of the report
of the result of the analysis to the Seed Inspector and
another copy thereof to the person from whom the
sample has been taken.
(2) After the institution of a prosecution under
this Act, the accused vendor or the complainant may, on
payment of the prescribed fee, make an application to
the Court for sending any of the samples mentioned in
clause ( a ) or clause ( c ) of subsection (2) of section 15
to the Central Seed Laboratory for its report and on
receipt of the application, the Court shall first ascertain
that the mark and the seal or fastening as provided in
clause ( b ) of subsection (1) of section 15 are intact and
may then dispatch the sample under its own seal to the
Central Seed Laboratory which shall thereupon send its
report to the Court in the prescribed form within one
month from the date of receipt of the sample, specifying
the result of the analysis.
(3) The report sent by the Central Seed Laboratory
under subsection (2) shall supersede the report given
by the Seed Analyst under subsection(1).
(4) Where the report sent by the Central Seed
Laboratory under subsection (2) is produced in any
proceedings under section 19, it shall not be necessary
in such proceedings to produce any sample or part
thereof taken for analysis.
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8. A conjoint reading of the subsections of Section 16, in
particular subsections (2) and (3), would make it clear that the right
that law has conferred upon the vendoraccused to get sample tested
from the Central Seed Laboratory is exercisable not before but after the
institution of prosecution against him under the Seeds Act and for
asserting his right all that required is to make an application in that
behalf to the prosecuting Court. Upon receipt of such an application,
the Court is required to send the sample to the Central Seed
Laboratory under it's own seal and a mandatory duty has been cast
upon the Central Seed Laboratory to send its report to the Court within
one month from the date of receipt of the sample, specifying the result
of the analysis. Under subsection (3) it has been made clear that
report sent by the Central Seed Laboratory under subsection (2) shall
supersede the report given by the Seed Analyst under subsection (1).
In other words, the report of Central Seed Laboratory stands as
conclusive proof of the quality of the seeds sample tested by it. Such
conclusive nature of the report of Central Seed Laboratory is what
makes the right of the accused under Section 16(2) valuable and
important.
9. There is almost identical provision existing in the
Prevention of Food Adulteration Act, 1954 (for short, the PFA Act). In
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Section 13(2) of the PFA Act also, similar right has been conferred
upon the accused to get the sample tested from Central Food
Laboratory and it has been further provided in subsection (3) of
Section 13 that the certificate issued by the Director of the Central
Food Laboratory shall supersede the report given by the Public Analyst
under Subsection (1). This right has been held to be indefeasible by
the learned Single Judge of this Court in the latest judgment rendered
in the case of Charandas Vallabhdas Mariwala & others Vs. The State of
Maharashtra (Criminal Application No. 1842 of 1996) delivered on
19/7/2014. While taking this view, the learned Single Judge of this
Court has considered judgment of the Hon'ble Apex Court and also the
judgments of this Court taking similar view. The learned Single Judge
has in particular followed the law laid down by Hon'ble Apex Court in
the case of Municipal Council, Delhi Vs. Ghisa Ram [AIR 1967 SC 970]
wherein the right conferred by Section 13(2) of the Prevention of Food
Adulteration Act has been held to be a valuable one because the
certificate of the Director of Central Food Laboratory supersedes the
report of the Public Analyst and it is treated as a conclusive evidence of
the quality of the sample. Rationale for giving such a status to the
right of the accused under Section 13(2) of the PFA Act as held in
Municipal Council, Delhi Vs. Ghisa Ram is that the right has been given
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to a vendor in order that, for his, satisfaction and proper defence, he
should be able to have the sample kept in his charge analysed by a
greater expert whose certificate is to be accepted by Court as
conclusive evidence and this right would be rendered meaningless if it
is made available to him at a time when character and quality of the
sample which he was allowed to retain in his possession had
deteriorated due to passage of time. Obviously, quality of the sample
would be deteriorated and adversely affected if the sample is to be sent
to the Central Laboratory for retesting and analysis after the expiry of
shelf life and in that case there would occur denial of said valuable
right of vendoraccused.
10. This law has also been followed by the learned Single Judge
of this Court in the case of Shivkukar @ Shiwalamal Nanumal
Chugwani & others Vs. State of Maharashtra, reported in 2010(3)
Bom. C. R.(Cri.) 103 , wherein the learned Single Judge has observed
that the right under Section 13(2) of the Prevention of Food
Adulteration Act has been given to the vendor in order that for his
satisfaction and proper defence, he should be able to have the sample
kept in his charge analysed by a greater expert whose certificate is to
be accepted by the Court as conclusive evidence and as such, if the
sample is to be sent to the Director of Central Food Laboratory after
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expiry of the shelf life, there would be virtual denial this right to the
vendor.
11. Although the above observations have appeared while
considering the nature of right under Section 13(2) of the PFA Act, the
principle of law emerging therefrom can be applied in the instant case
also as Section 16(2) of the Seeds Act confers a similar right as the
right conferred under the provision of Section 13(2) of the PFA Act.
Just like Section Section 13 (3) of the PFA Act, there is similar
provision under Section 16(3) of the Seeds Act, which provides that
the report of the Central Seed Laboratory would supersede the report
of the Seed Analyst thereby indicating that the report of the Central
Seed Laboratory would be conclusive proof of its contents and would
put at rest the controversy in the matter. If the report of the Central
Seed Laboratory is put on a higher pedestal than the report of Seed
Analyst and is to be treated as according finality to the issue of quality
and character of the sample, the right of the vendoraccused to get the
sample tested after institution of prosecution, given under Sec.16(2), is
valuable one, on the principle of law laid down in the Municipal
Council, Delhi Vs. Ghisa Ram (supra) and as held by learned Single
Judge in the case of Charandas Vallabhdas Mariwala & others (supra),
cannot be allowed to be defeated by delay in launching of prosecution
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apl184.13.odt
against vendoraccused. Section 16(2), Seeds Act requires vendor
accused is given an opportunity after institution of prosecution against
him to get the seed sample in his charge retested through intervention
of the Court by Central Seed Laboratory. The opportunity would be
meaningful and realistic only if the quality and character of the sample
is not deteriorated by the passage of time. If the opportunity is made
available to the vendoraccused after the expiry of shelf life of the
seeds sample, it would be obvious that result of the analysis would not
be objective and the right would be rendered meaningless and thus
there would occur virtual deprivation of the right to the vendor
accused.
12. Having considered the law governing the field, now, it
would be necessary to refer to the facts admitted in this case, which
pertain to the dates on which various events have taken place so as to
examine the question as to whether or not there is denial of valuable
right of applicants under Section 16(2), Seeds Act. They could be
stated in brief as under.:
10/9/2006 Sample seized (Sunflower seeds)
10/10/2006 Report by Seeds Analyst
24/5/2006 Seeds manufactured
19/11/2006 Expiry of validity of the seeds.
07/4/2007 Complaint filed. But no action taken.
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20/11/2012 Trial Court passed an order that the
complaint was unattended for long and
hence issue notice to the complainant for
further steps and issue summons to the
accused.
13. It is clear from the above referred events that the
prosecution has been instituted more than four months after the expiry
of shelf life of the seeds and since the right conferred under Section
16(2) of the Seeds Act can be exercised only after the institution of the
prosecution, this right has been virtually denied to the applicants. The
right is valuable and indefeasible. It cannot be taken away in any
circumstance. But, by launching the prosecution after expiry of shelf
life of the seeds, Section 16(2) right, has been smothered in this case
as the result of the analysis of the sample by Central Seed Laboratory
carried out after expiry of validity of seeds is bound to be onesided,
blotched and coloured to the prejudice of the vendoraccused, thereby
sabotaging the very rationale of Section 16(2), Seeds Act of providing
“satisfaction and proper defence” to vendoraccused as held by Hon'ble
Apex Court in Municipal Council, Delhi Vs. Ghisa Ram (supra).
Therefore, the prosecution as launched against the applicants by the
State cannot be sustained in law, it being violative of indefeasible right
of the applicants in this case. By deprivation of this right, the
applicants have been denied an opportunity to prove their defence and
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apl184.13.odt
now the prosecution would only be one sided, which goes against the
well settled principles of Criminal Jurisprudence. Therefore, to secure
the ends of justice, the complaint case filed against the applicants
deserves to be quashed and set aside.
The application is allowed and the Criminal Case No.1231
of 2007 pending before the Court of J. M. F. C., Washim is quashed
and set aside.
JUDGE
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