Friday 25 September 2015

Duty of insecticide inspector to institute complaint case forthwith under insecticides Act

 The Supreme Court in Northern Mineral Limited v. Union of
India & Another : (2010) 7 SCC 726 observed as under:
“24. 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. 
25. 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.
26. 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 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.”
IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment delivered on: 13th August, 2015
 CRL.M.C. No.294/2015
RECKITT BENCKISER INDIA LTD

versus
GOVT OF NCT OF DELHI AND ANR

CORAM:
HON’BLE MR. JUSTICE SURESH KAIT


1. The issues raised in both these petitions are common and as such
are being dealt with by this common judgment. The sample was of
Mortein Coil in Cri. M.C.No.294/2015 and Morteine Liquid vaporizer is Crl.M.C.Nos.294 and 831 of 2015 Page 2 of 6
involved in other Crl.M.C.No.831/2015. The facts of earlier case is being
taken for discussion and disposal.
2. By way of the petition filed under Section 482 of the Code of
Criminal Procedure, 1973, petitioner seeks quashing of criminal cases
filed under the Insecticides Act, 1968 (hereinafter referred as the ‘said
Act’) by the respondent No.2 and pending before learned Trial Court.
3. The facts of the case are that on 16.10.2012, Insecticide Inspector
inspected the godown of petitioner and took three packets of Mortein
Power Guard Coil (Mortine) with manufacturing month as September
2012 and expiry being September 2014. The active ingredient of mortein
is d-trans allethrin with strength of 0.1% w/w. On 17.10.2012, one sample
was sent to Directorate of Plant Protection (Q & S) NH-IV, Faridabad,
Haryana by the Insecticide Inspector. On 23.11.2012, RPTL observed the
active ingredients content (d-trans allethrin) in the same is only 0.06%
instead of 0.1%, therefore, it is misbranded. On 14.01.2013, the report of
RPTL was received by respondent No.2, which was forwarded to the
petitioner vide memo dated 17.01.2013. The respondent No.2 vide memo
dated 04.03.2013 called upon the petitioner to offer its response in respect
of test report. The petitioner submitted its response on 10.04.2013
wherein it challenged the process of drawing and testing of the samples
and objected the report of RPTL.
4. As the petitioner had controverted the report mentioned above,
respondent No.2 filed the complaint case under Section 29 (1) (a) of the
Act before learned Trial Court. Vide order dated 27.08.2013, cognizance
was taken and summons were issued against the petitioner. The petitioner Crl.M.C.Nos.294 and 831 of 2015 Page 3 of 6
filed the application in exercise of its right under Section 24(4) of the said
Act whereby sought testing of mortein samples by CIL. Learned Trial
Court dismissed the said application vide order dated 10.05.2014.
5. Feeling aggrieved, petitioner challenged the same order before this
Court which was allowed vide order dated 26.09.2014 in
Crl.M.C.No.3087/2014 whereby this Court directed the respondent No.2
to get the samples of seized material respondent-examined by the CIL
immediately, because the self life of the material seized would expire in
September, 2014.
6. Section 24 (3) of the said Act provides for a presumption that the
report of CIL is conclusive evidence, unless the person aggrieved
approached the Court in writing within 28 days on receipt of report.
Accordingly, the mortein was sent on 13.09.2014 to CIL by respondent
No.2 for testing.
7. Learned counsel appearing on behalf of petitioner submits that by
the time the mortein sample reached CIL for testing, its self life had
expired and was unfit for testing. In the report dated 14.10.2014, CIL
observed that active ingredients of d-trans allethrin in mortein sample is
0.03% instead of 0.1%, hence sample is misbranded.
8. Learned counsel further submits that as the mortein sample was
tested by CIL after expiry of its self life, same defeated the statutory right
of the petitioner as prescribed under Section 24 (4) of the said Act, hence
petitioner filed instant petition.
9. It is also argued that sample were taken by the respondent No.2 on Crl.M.C.Nos.294 and 831 of 2015 Page 4 of 6
16.10.2012 with date of manufacturing as September 2012, and the date
of expiry is two years from the date of manufacturing, thus, the expiry
date would in the month of September, 2012. The respondent No.2
received the testing report from the Regional Testing Authority on
14.01.2013 which was forwarded to the petitioner on 17.01.2013 and
complaint case was filed by respondent No.2 on 27.08.2013 after ten
months of the sample taken and eight months from testing report received.
Learned counsel submitted that if petitioner wants to controvert the report
received by respondent No.2, he has a right envisaged under Section 24
(4) of the said Act for retesting, which he has rightly availed and allowed
by this Court vide order dated 26.09.2014.
10. The stand of the respondent No.2 is that immediately after the
direction of this Court, it had sent the sample on 30.09.2014 and the report
was received by respondent No.2 on 14.11.2014 from the Central
Inspecting Laboratory, Faridabad, with the report that sample does not
confirm to the relevant specifications in the active ingredient content as
per requirement and has been misbranded. Be that as it may.
11. The Supreme Court in Northern Mineral Limited v. Union of
India & Another : (2010) 7 SCC 726 observed as under:
“24. 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. Crl.M.C.Nos.294 and 831 of 2015 Page 5 of 6
25. 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.
26. 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 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.”
12. It is not in dispute that sample has been proved as misbranded.
Thus, the sample does not exist against the petitioner. The sample from
the godown were taken on 16.10.2012 and the respondent No.2 was aware
about the self life of the samples and the petitioner may controvert the
same under Section 24(4) of the said Act and despite that after taking the
sample, the petitioner filed the complaint after ten months from the date
of the sample and eight months from the date of receipt of report. Thus,
there is a complete lapse on the part of the respondent No.2 in taking the
appropriate and timely action against the petitioner. As the samples are
failed, nothing can be done against the petitioner. Therefore, I am of the
considered opinion that allowing criminal prosecutions against the 
petitioner to continue shall be futile and abuse of process of law.
13. Consequently, CC No.804/1/13 titled ‘Licensing Officer v Reckitt
Benckiser (India) Ltd & Ors’ as well as CC No.274/1/13 titled ‘Licensing
Officer v Reliance Fresh Limited & Ors’ pending against the petitioners
before learned Trial Court and all proceedings emanating therefrom, are
hereby quashed.
14. In view of the above, both the petitions are allowed.
Crl.M.A.Nos.1141 and 1142 of 2015 in Crl.M.C.No.294/2015
Crl.M.A.Nos.7240 and 7241 of 2015 in Crl.M.C.No.831/2015
Dismissed as infructuous.
 SURESH KAIT
 (JUDGE)
AUGUST 13, 2015

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