Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1034 of 2005
M/S. NORTHERN MINERALS LTD. & ORS. .......APPELLANTS
VERSUS
RAJASTHAN GOVT. & ANR. .......RESPONDENTS
WITH
CRIMINAL APPEAL No.61 of 2006
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
JUDGMENT
CRIMINAL APPEAL No.1034 of 2005
1.
An Insecticide Inspector-cum-Assistant Director of
Agriculture (HQ) Ajmer, seized sample of Dimethoiate 30% EC (of
Batch No.810) from the shop of M/s Joshi Krishi Agencies, Vyapari
Mohalla, Near Power House, Madangaj, Kishangarh, Rajasthan, on
15.10.1994. It is not a matter of dispute, that the above sample of
the insecticide was manufactured by M/s Northern Minerals Ltd.
(appellant No.1 herein) in March, 1994. It is also not a matter of
dispute, that the shelf life of the insecticide was to expire in
Page 1
2
August, 1995.
2. The concerned Insecticide Inspector sent the seized
sample for analysis to the State Pesticide Testing Laboratory,
Durgapura, Jaipur. Consequent upon the analysis made by the
Testing Laboratory, report dated 13.12.1994 came to be submitted,
which declared the sample drawn on 15.10.1994 as mis-branded.
3. A show cause notice dated 30.12.1994 was accordingly
issued to appellant No.1 i.e. M/s Northern Minerals Ltd., as also,
the three other appellants before this Court, all of whom were
Managing Director/Director of appellant No.1. The aforesaid show
cause notice along with its report dated 13.12.1994 was received by
appellant No.1 on 03.01.1995. It is also the case of the learned
counsel for the appellants before this Court, that the service of
the aforesaid show cause notice was effected only on appellant No.1
and not its Managing Director and Director (appellant Nos.2 to 4
herein). Consequent upon the receipt of the above show cause
notice, appellant No.1 submitted its reply to the same on
JUDGMENT
06.01.1995. A copy of the reply furnished by appellant No.1 to the
show cause notice is available on the record of this case as
Annexure P-3. In the above report dated 06.01.1995, M/s Northern
Minerals Ltd., inter alia, asserted as under:
“It is kindly to inform you that we are manufacturing
Dimethoate 30% EC as per the relevant ISI
specifications and are releasing the product for sale
only after testing it in our laboratory and finding
it conforming to the relevant ISI specifications. At
the time of manufacturing of Dimethoate 30% EC Batch
No.810 it was found containing 30.6% w/w a.i.
contents conforming to the relevant ISI
specifications. On receipt of your letter referred
above we had again analyzed the said sample of
Dimethoate 30% EC batch no.810 and it was again found
Page 2
3
containing 29.9% a.i. contents conforming to the
relevant ISI specifications. Hence, in both the cases
the above said sample has been found to be conforming
to the relevant ISI specifications. Therefore, your
contention that the said product has been found to be
mis-branded is not acceptable to us.
Under the circumstances, we hereby
express/notify our intention of adducing the evidence
in controversion of the report of the Insecticide
Analyst, State Pesticide Testing Laboratory,
Durgapura, Jaipur dated 13.12.1994.”
It is the contention of the learned counsel representing the
appellants, that a perusal of the reply filed by M/s Northern
Minerals Ltd. would reveal, that they had clearly indicated their
intention to adduce evidence to controvert the report of the
Insecticide Analyst from the State Pesticide Testing Laboratory,
Durgapura, Jaipur, dated 13.12.1994.
4. The Joint Director Agriculture (Plant Protection)
Rajasthan, Jaipur, accorded his written consent authorising the
Insecticide Inspector to institute a case for prosecution under
Section 29(1)(a) of the Insecticides Act against the appellants on
JUDGMENT
31.05.1995. In compliance with the aforesaid sanction, the
Insecticide Inspector-cum-Assistant Director of Agriculture (HQ)
Ajmer, filed a complaint on 13.09.1995 before the Judicial and
st
Munsif Magistrate (1 Class), Kishangarh. On 13.12.1995, the above
Magistrate took cognizance of the aforesaid complaint.
5. Dissatisfied with the order passed by the Additional
Civil Judge (Junior Division-cum-Judicial Magistrate), Kishangarh,
Rajasthan, in taking cognizance, the appellants approached the High
Court by filing Criminal Miscellaneous Petition No.250 of 2001
Page 3
4
under Section 482 of the Criminal Procedure Code wherein they
sought quashing of the order of cognizance dated 13.12.1995. The
High Court did not accept the prayer made by the appellants and
dismissed the above Criminal Miscellaneous Petition on 26.10.2004.
Dissatisfied with the order passed by the High Court, the
appellants have approached this Court through the instant Criminal
Appeal.
6. During the course of hearing, learned counsel for the
appellants invited our pointed attention to Sections 22 and 24 of
the Insecticide Act, 1968 (hereinafter referred to as `the Act').
The same are extracted hereunder for facility of reference:
“22 Procedure to be followed by Insecticide
Inspectors
(1) Where an Insecticide Inspector seizes any
record, register or document under clause (b) of
sub-section (1) of section 21, he shall, as soon
as may be, inform a Magistrate and take his
orders as to the custody thereof.
(2) Where an Insecticide Inspector takes any
action under clause (d) of sub-section (1) of
section 21-
JUDGMENT
(a) he shall use all despatch in
ascertaining whether or not the
insecticide or its sale, distribution
or use contravenes any of the
provisions of section 18 and if it is
ascertained that the insecticide or its
sale, distribution or use does not so
contravene, forthwith revoke the order
passed under the said clause or as the
case may be, take such action as may be
necessary for the return of the stock
seized;
(b) if he seizes the stock of the
insecticide he shall, as soon as may
be, inform a Magistrate and take his
orders as to the custody thereof;
(c) without prejudice to the
institution of any prosecution, if the
Page 4
5
alleged contravention be such that the
defect may be remedied by the possessor
of the insecticide, he shall, on being
satisfied that the defect has been so
remedied, forthwith revoke his order
and in case where the Insecticide
Inspector has seized the stock of
insecticide, he shall, as soon as may
be, inform a Magistrate and obtain his
orders as the release thereof.
(3) Where an Insecticide Inspector takes any
sample of an insecticide, he shall issue a
receipt therefor stating therein that the fair
price of such sample shall be tendered if the
sample, after test or analysis is not found to be
misbranded and the Insecticide Analyst has
reported to that effect and on such price having
been tendered may require a written
acknowledgement therefor.
(4) Where the Insecticide Inspector seizes the
stock of any insecticide under clause (d) of
sub-section (1) of section 21, he shall tender a
receipt in the prescribed form.
(5) Where an Insecticide Inspector takes a
sample of an insecticide for the purpose of test
or analysis, he shall 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, shall
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:
JUDGMENT
Provided that where the insecticide is made
up in containers of small volume, instead of
dividing a sample as aforesaid, the Insecticide
Inspector may, and if the insecticide be such
that it is likely to deteriorate or be otherwise
damaged by exposure shall take three of the said
containers after suitably marking the same and,
where necessary, sealing them.
(6) The Insecticide Inspector shall 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 shall retain the remainder and
dispose of the same as follows:-
Page 5
6
(i) one portion or container, he shall
forthwith send to the Insecticide
Analyst test or analysis; and
(ii) the second, he shall produce to
the court before which proceedings, if
any, are instituted in respect of the
insecticide.
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 form.
(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 samples are pending
that he intends to adduce evidence in
controversion of the report.
JUDGMENT
(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
Page 6
7
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.”
Our pointed attention was also drawn to Section 22(6) of the Act
wherein the Insecticide Inspector is mandated to retain one portion
of the sample and produce the same in the Court before which the
proceedings, if any, are instituted in respect of the concerned
insecticide. Insofar as Section 24 is concerned, learned counsel
for the appellants has drawn our pointed attention to sub-Sections
(3) to (5) whereunder, unless an objection to the Analyst's Report
is raised within 28 days by the person from whom the sample was
taken, the said Report is treated as final. With reference to
sub-Section (4) of Section 24 of the Act, it was the pointed
contention of the learned counsel for the appellants, that an
accused can require the sample produced before the Magistrate under
Section 22(6), to be re-tested, in case the veracity of the test
JUDGMENT
carried out at the behest of the authorities, is
disputed/contested.
7. In the background of the aforestated statutory provisions,
it was the submission of the learned counsel for the appellants,
that by the time the matter came to be taken up by the learned
Additional Civil Judge (Junior Division-cum-Judicial Magistrate),
Kishangarh, Rajasthan, on 13.12.1995, the sample had already
expired. In this behalf it was pointed out, that the sample drawn
was to expire in August, 1995. Thus viewed, it was asserted, that
the only right vested in the accused to controvert the report of
Page 7
8
analysis of the sample obtained by the Insecticide Inspector stood
frustrated. In the above view of the matter, it was submitted that
the right of defence available to the appellants in terms of
Section 24 of the Act having been lost, it was imperative for this
Court to quash the proceedings initiated against the appellants by
the order of cognizance dated 13.12.1995.
8. In order to support his above contention, learned counsel for
the appellants has placed reliance on Northern Mineral Limited
vs. Union of India, (2010) 7 SCC 726, and invited the Court's
attention to the following observations recorded therein:
“19. 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
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.
JUDGMENT
20. 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
Page 8
9
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 value of the report gets denuded
and the statutory right to get the sample tested and
analysed by the Central Insecticides Laboratory gets
fructified.
21. The decision of this Court in National Organic
Chemical Industries Ltd.(1996) 11 SCC 613, Unique Farmaid
(P) Ltd. (1999) 8 SCC 190 and Gupta Chemicals (P) Ltd.
(2010) 7 SCC 735, in our opinion do support Mr. Nehra's
contention. True it is that in the first two cases, the
accused, besides sending intimation that they intend to
adduce evidence in controversion of the report the accused
persons have specifically demanded for sending the sample
for analysis 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 the accused had intimated its intention
to adduce evidence in controversion of the report and that
conferred on him the right to get the sample tested by the
Central Insecticides Laboratory. The decision of this
Court in Gupta Chemicals is very close to the facts of the
present case. In the said case “on receipt of the
information about the State Analyst's 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.”
22. From the language and the underlying object behind
Sections 24(3) and (4) of the Act as also from the ratio
of the aforesaid decisions of this Court, we are of the
opinion that mere notifying the intention to adduce
evidence in controversion of the report of the Insecticide
Analyst confers on the accused the right and clothes the
court with the jurisdiction to send the sample for
analysis by the Central Insecticides Laboratory and an
accused is not required to demand in specific terms that
the sample be sent for analysis to the Central
Insecticides Laboratory. In our opinion the mere intention
to adduce evidence in controversion of the report, implies
demand to send the sample to the Central Insecticides
Laboratory for test and analysis.
JUDGMENT
23. Section 24(3) of the Act gives right to the accused to
rebut the conclusive nature of the evidence of the
Insecticide Analyst by notifying its intention to adduce
evidence in controversion of the report before the
Insecticide Inspector or before the 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
Page 9
10
motion or at the request of the complainant or the
accused.
24. No proceeding was pending before any court when the
accused was served with the Insecticide Analyst's Report,
the intention was necessarily required to be conveyed to
the Insecticide Inspector, which was so done by the
appellant and in this background the Insecticide Inspector
was obliged to institute complaint forthwith and produce
the sample and request the court to send the sample for
analysis and test to the Central Insecticides Laboratory.
The appellant did whatever was possible for it. Its right
has been defeated by not sending the sample for analysis
and report to the Central Insecticides Laboratory.
25. It may be 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 the
Central Insecticides Laboratory. A 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.
27. It is interesting to note that Sections 24(3) and (4)
of the Act oblige the Insecticide Analyst and the 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.”
JUDGMENT
9. As against the assertion made by the learned counsel
representing the appellants, it was submitted on behalf of the
respondents, that the claim for a re-analysis of the second sample
drawn by the concerned Insecticide Inspector, does not flow to the
appellants before this Court. Insofar as the above contention is
concerned, a distinction was sought to be drawn between
Page 10
11
sub-Sections (3) and (4) of Section 24 of the Act. It was submitted
by the learned counsel representing the respondents, that the
liberty to seek a second analysis of the sample drawn is available
only to “...the person from whom the sample was taken...”, and
further, that the said liberty is available only in case the said
person from whom the said sample was taken, notifies in writing
“...within 28 days of the receipt of a copy of the report...” his
intention to adduce evidence in controversion of the report. It
is, therefore, the contention of the learned counsel for the
respondents, that the appellants before this Court not being the
person from whom the sample was taken, cannot make a demand for a
second test within the mandate of Section 24(4) of the Act.
10. We have given our thoughtful consideration to the
submissions advanced at the hands of the learned counsel for the
rival parties.
11. First and foremost, it is imperative for us to conclude,
that the judgment rendered by this Court in the Northern Minerals
JUDGMENT
Ltd. Case (supra), relied upon by the learned counsel for the
appellants, squarely applies to the facts and circumstances of this
case, and that, the prayers made in the instant appeal deserve to
be accepted on the basis of the legal position declared by this
Court in the above judgment. We order accordingly.
12. Insofar as the contention of the learned counsel for the
respondents in distinguishing the right of the person from whom the
sample was taken, as mandated under Section 24(3) is concerned, we
need only refer to sub-Section (4) of Section 24 of the Act which
extends the above right, even to the complainant and the accused.
Page 11
12
Read harmoniously, therefore, we have no hesitation to conclude,
that insofar as the person from whom the sample was taken, the
right to raise an objection is circumscribed by requiring him to
indicate his intention to do so within 28 days of the receipt of
the copy of the report. There is however no such limitation of time
placed by the legislature on the complainant and/or the other
accused proceeded against. In the above view of the matter, insofar
as the present appeal is concerned, we find, that a vital right
vested in the appellants/accused to get the sample re-tested (from
the Central Insecticides Laboratory), to controvert the report of
analysis of the sample obtained by the Insecticide Inspector, stood
frustrated. The appellants have lost the right to disprove their
guilt. The appellants cannot be proceeded against, when they have,
for no fault of their own, lost a vital right of defence. We are
satisfied to conclude, that under sub-Section (4) of Section 24 of
the Act, an accused other than a person from whom the sample is
taken, also has a right to adduce evidence in controversion of the
JUDGMENT
Insecticide Analysit's Report, and in case the accused avail of the
above right under sub-Section (4) of Section 24, he must bear the
expenses of the test or analysis, to be made by the Central
Insecticides Laboratory (under sub-Section 5 of Section 24)
13. For the reasons recorded hereinabove, the instant appeal
is allowed. The impugned order dated 26.10.2004 passed by the High
Court is set aside. The proceedings initiated against the
appellants based on the cognizance taken by the Additional Civil
Judge (Junior Division-cum-Judicial Magistrate), Kishangarh,
Rajasthan, are hereby quashed.
Page 12
13
CRIMINAL APPEAL No.61 of 2006
14. We have heard learned counsel for the rival parties.
15. It is not disputed before us, that on the date when
cognizance was taken on 04.02.1995 by the Judicial and Munsif
st
Magistrate (1 Class), Ajmer, Rajasthan, the sample had already
expired in June, 1994. In the above view of the matter, we are
satisfied that the instant appeal deserves to be allowed in the
same terms as in M/s Northern Minerals Ltd. and others vs.
Rajasthan Govt. & Anr.(Criminal Appeal No.1034 of 2005) decided on
28.04.2016.
16. In view of the above, the instant appeal is allowed in
the same terms as in the M/s Northern Minerals Ltd. Case (supra).
..........................J.
(JAGDISH SINGH KHEHAR)
..........................J.
(C.NAGAPPAN)
JUDGMENT
NEW DELHI;
APRIL 28, 2016.
Page 13
14
JUDGMENT
Page 14