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       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.

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

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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 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

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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 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 Munsif Magistrate (1st 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

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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-  

(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

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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:   

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:-

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(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. (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

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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 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

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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.  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

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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.  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

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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.”

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

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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 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.

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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 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.   

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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 Magistrate (1st 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)

NEW DELHI; APRIL 28, 2016.

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