22. Thus, when the prosecution was initiated, the right available to the petitioners under Sec. 16(2) read with Sec. 16(3) of the Act was already frustrated because in view of the delay, the petitioners could not make any application to the Court under Sec. 16(2) for sending the seeds/sample for re-analysis to the Central Seeds Laboratory after the expiry of shelf-life of the seeds/sample in question inasmuch as after the expiry date de-generation of the seeds would set-in/commence. Consequently, the petitioners are deprived of their right available under Sec. 16(2), and therefore, their defence is jeopardised and frustrated.
23. In this background, it emerges that the petitioners are justified in their contention that because of the delay their right of effective defence is jeopardised, and therefore, the prosecution/criminal case deserves to be quashed and the prosecution cannot be allowed to continue. Therefore, below-mentioned order is passed. Having regard to the above discussed facts and circumstances and also having regard to the above-quoted observations by the Hon'ble Apex Court and considering the delay caused in submission of the report by the Seed Analyst of the State Laboratory and the delay caused in initiating prosecution which resulted into frustration of right available to the petitioners under Sec. 16(2) of the Act, the application deserves to be and is required to be allowed. Consequently, the application is allowed in terms of Paragraph No. 4(B) and the Criminal Case/Complaint No. 132 of 2009 before the learned Principal and Judicial Magistrate, First Class, Court at Amirgarh is quashed.R/CR.MA/2948/2012
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2948 of 2012
SHREE MAHALAXMI SEEDS & 3
Versus
STATE OF GUAJRAT
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 05/08/2013
Citation; 2015(1)crimes 100 Guj, (2014)1GLR319, 2014(2)RCR(Criminal)869,2014CriLJ3833,
In present petition under Section 482 of the
Criminal Procedure Code, 1973, the petitioners being
manufacturer and dealer of the product in question,
have prayed, inter alia, that:
“4(A) The Petitioner humble pray before Your Lordships to kindly
allow this Petition.
(B)
Your Lordships be pleased to allow this petition to quash and
set aside proceedings against the Original Accused in complaint
no.132/2009 before Learned Principal Judge and Judicial Magistrate
First Class Court at Amirgarh.”
2.
So far as the relevant factual matrix is
concerned, it is averred by the petitioners that
respondent No.1 is Seed Inspector appointed as such
vide notification dated 14.12.2004 under provisions of
the Seeds Act, 1966 (hereinafter referred to as 'the
Act') and that in exercise of powers conferred upon
him by the Act, he had visited the premises of
petitioner No.1 on 1.7.2008 and had drawn / collected
sample of hybrid castor variety (triveni pooja). It
is also averred that after drawing the said sample, it
was forwarded to Seed Testing Laboratory at
Gandhinagar. The laboratory, after testing and
analysing the sample, found that the percentage of
purity of the seeds was upto only 79.84% and
accordingly, the seeds were found to be substandard.
The laboratory forwarded its report to the respondent
whereupon the respondent issued show cause notice to
the petitioner viz. the manufacturer, the dealer and
the officers of manufacturer and dealer. It is also
claimed that on receipt of the show cause notice, the
petitioners forwarded their reply, however, the said
reply did not satisfy the respondent who, after
receiving sanction, filed criminal case which came to
be registered as Criminal Case No.132 of 2009 before
the learned Principal Judge and Judicial Magistrate
(First Class) at Amirgarh.
3.
The petitioners have claimed that the
complaint/case came to be filed against the
petitioners after expiry of shelflife of the seeds /
sample. It is also claimed that the respondent
alleged that the petitioners committed offence under
Section 6(a) read with Section 7A of the Act and Rule
10 of the Seed Rules, 1968 (hereinafter referred to as
'the Rules'), which is punishable under Section 19 of
the Act. It is further claimed that upon service of
summons, the petitioners appeared before the learned
Magistrate and through their advocate, submitted an
application under Section 16(2) seeking sample for re
analysis of the seeds. The petitioners have also
averred that reanalysis of the said sample could not
be done and that, therefore, the petitioners moved an
application under Section 258 of the Criminal
Procedure Code, 1973 to drop the proceedings. It is
claimed that the learned trial Court, without properly
considering the contentions of the petitioners,
rejected the said application. Therefore, the
petitioners have preferred present petition. The
petition is admitted under order dated 12.3.2013.
4.
The respondent has filed affidavit and has
mentioned the factual backdrop, in which the complaint
came to be filed. It appears that in the narration of
factual aspects by the petitioners and the respondent,
there is no difference or dispute so far as the
relevant dates are concerned. The respondent has
mentioned that the sample was drawn on 1.7.2008 and
for testing the genetic purity, the said sample was
forwarded for analysis to the Seed Testing Laboratory
at Gandhinagar on 4.7.2008. The germination test
report was received on 29.7.2008 and further report
was received on 31.12.2008. The respondent has also
mentioned that the packing date mentioned on the
package of the seeds was found to be May 2008 and
expiry was found to be January 2009. the respondent
has also claimed that the report, which was made on
31.12.2008, was received by him on 12.1.2009, which
specified that the percentage of purity was 79.84%
whereas, the minimum requirement is 85% and therefore,
the seeds were found to be substandard.
Consequently, the show cause notice came to be issued
on 12.1.2009 which was replied by the petitioners on
21.1.2009 wherein, the petitioners mentioned that it
was a first mistake and therefore, they may be
pardoned. It is also claimed by the respondent that
the proposal for prosecution was sent to the Director
of Agriculture on 12.2.2009 and sanction was granted
on 6.3.2009 and thereafter, the complaint came to be
filed on 17.4.2009. The respondent has also mentioned
that the petitioners applied for reanalysis of the
sample under Section 16(2) of the Act, however, since
the laboratory at which the petitioners desired that
the test for reanalysis may be conducted was shifted
from New Delhi to Varanasi, the analysis could not be
done. The respondent also submitted that as the
shelflife of the seeds expired during this time, the
petitioners filed application to drop the proceedings
which is rightly rejected by the learned trial Court.
The respondent has claimed that:
“6.
It is submitted that, analysis is to be done as per the
guideline issued by the Indian Council of Agriculture Research in
their manual and being a grow out test, naturally take some more
time is required to be taken for analysis the seeds for genetic
test.
7.
It is submitted that, in fact, the reply to the show cause
notice was given by M/s. Triveni Agrotech on 06.02.2009.
Therefore, also the some time was taken. In fact, intentionally
the reply was not given in time and they are waiting for expiry
period which is of 31.01.2009. Therefore, now they cannot claim
the benefit of the delay lodging the prosecution.
8.
It is submitted that, the petitioner themselves had admitted
the offence and prayed pardon as the offence of first offence. It
is submitted that, the Learned Judge has rightly observed that, the
case is on prechange evidence and unless and until the evidence
would not come on the record, the real picture would not be
cleared. Therefore, the order passed by the Learned Judge is not
required to be interfered with and the petition is required to be
dismissed.”
5.
At the time of hearing, learned advocate for
the petitioners reiterated the factual aspects, more
particularly the relevant dates and submitted that due
to the fault on the part of the respondent, the
relevant period expired before the complaint came to
be filed and more particularly before the applicant
could apply for reanalysis and due to expiry of the
relevant period before reanalysis could be done,
precious right granted under the Act is lost and
therefore, the proceedings deserve to be quashed. So
as to support his submissions, learned advocate for
the petitioners relied on the decisions in (i) Jhajhan
Lal Gupta, Director & Anr. vs. State of Haryana [1997
Cri. L.J. 190]; (ii) Hindustan Cibar Geigy Ltd. &
Ors. vs. State of Rajasthan & Ors. [1995 Cri. L.J.
618]; (iii) State of Haryana vs. Unique Farmaid P.
Ltd. & Ors. [2000 Cri. L.J. 2962].
6.
Learned APP referred to and relied upon the
details and averments mentioned in the reply affidavit
dated 9.4.2013 and submitted that the petitioners
intentionally caused delay in replying the show cause
notice so that the relevant period would expire and
that, therefore, the petitioners may not be allowed to
take advantage of their own intentional acts.
7.
I have heard learned advocate for the
petitioners and learned APP for the respondent at
length and I have also examined material on record as
well as the reply affidavit filed by the respondent.
8.
The petitioners have prosecuted present
petition on singular and solitary ground, viz. their
right under Section 16 of the Act is infringed on
account of the acts of the respondent which caused the
delay in question.
9.
In view of the contention raised by the
petitioners to support the relief prayed for in
present petition, it is necessary to keep in focus the
relevant dates.
Sr.No. Particulars Date
1 Date of which sample was drawn / 01/07/08
collected.
2 Date on which the sample was forwarded to 04/07/08
the laboratory.
3 Date on which the laboratory received the 07/07/08
sample.
4 Germination test report was made. 5 Further report (grow out test) was made. 31/12/08
6 Reports were received by the respondent. 12/01/09
7 Respondent submitted proposal to the 12/02/09
Director of Agriculture.
8 Competent authority gave sanction. 06/03/09
9 Complaint came to be filed. 17/04/09
10 Order issuing summons passed. 17/04/09
11 Application under Section 16(2) was 25/06/09
submitted.
12 Application under Section 258 of the 15/09/09
CrPC.
9.1
29/07/08
Besides the abovementioned relevant dates,
the other two dates require to be kept in focus are
(i) the date of packaging and (ii) expiry date
mentioned on the package of the seeds.
9.2
According to the respondent's affidavit, the
dates mentioned on the package reflected packaging
date as May, 2008 and expiry date as January, 2009.
9.3
Thus, what emerges from the abovementioned
relevant dates and other relevant facts is that the
packaged seeds were 'good until' or 'valid upto'
January, 2009.
9.4
Meaning thereby if the retest or re
analysis is undertaken after January, 2009, then such
test – analysis would not yield correct result and
could be negative. Differently put, the result would
not be worthy to place reliance on.
10.
In this view of the matter, the petitioners
claim that their valuable right under Section 16(2) is
lost.
11.
So as to appreciate the submission, it is
necessary take into account the provisions under
Sections 6, 7 and 16 of the Act and Rules 10 and 21(3)
of the Rules also need to be taken into account. The
said provisions read thus:
“6.
Power to specify minimum limits of germination and purity,
etc. – The Central Government may, after consultation with the
Committee and by notification in the Official Gazette, specify –
(a)
the minimum limits of germination and purity with respect to
any seed of any notified kind or variety;
(b)
the mark or label to indicate that such seed conforms to the
minimum limits of germination and purity specified under clause (a)
and the particulars which such mark or label may contain.
7.
Regulation of sale of seeds of notified kinds or varieties.
– No person shall, himself or by any other person on his behalf,
carry on the business of selling, keeping for sale, offering to
sell, bartering or otherwise supplying any seed of any notified
kind or variety, unless –
(a)
such seed is identifiable as to its kind or variety;
(b)
such seed conforms to the minimum limits of germination and
purity specified under clause (a) of section 6;
(c) the container of such seed bears in the prescribed manner, the
mark or label containing the correct particulars thereof, specified
under clause (b) of section 6; and
(d)
he complies with such other requirements as may be
prescribed.
16.
Report of Seed Analyst. – (1) The Seed Analyst shall, as
soon as may be after the receipt of the sample under subsection
(2) of section 15, analyse the 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 despatch 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 sub
section (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.
xxx
Rule 10.
Mark or label not to contain false or misleading
statement. – The mark or label shall not contain any statement,
claim, design, device, fancy name or abbreviation which is false or
misleading in any particular concerning the seed contained in the
container.
21
Duties of a Seed Analyst. –
(3)
The Seed Analyst shall deliver in Form VII, a copy of the
report of the result of analysis to the persons specified in sub
section (1) of section 16, as soon as may be but not later than 30
days from the date of receipt of samples sent by the Seed Inspector
under subsection (2) of the section 15.”
12.
On reading the relevant provisions under the
Act, more particularly the abovequoted provisions,
viz. Sections 6, 7 and 16 of the Act and Rules 10 and
21(3) of the Seeds Rules, 1968 (hereinafter referred
to as 'the Rules'), it emerges that Section 6 confers
power to specify minimum limits of germination and
purity with respect to any seed of any notified kind
or variety of seeds, which would mean that the
notification, which can be issued under Section 6,
would specify minimum germination and purity of the
notified kind/variety of seeds and not all kinds or
variety of seeds. The notification under Section 6
would follow the notification contemplated under
Section 5 of the Act. Since in present case any issue
or dispute related to the notification under Section 5
or under Section 6 and/or kind or variety of seeds
notified under such notification is not raised, it is
not necessary or relevant to dwell on the said
provisions. The limited issue raised in this matter is
with reference to the right conferred under Section 16
of the Act.
13.
According to the scheme of the Act, Section
7 imposes restrictions as regards sale of seeds of
notified kinds or variety and it provides, inter alia,
that no persons shall himself or by any other person
on his behalf, carry on business of selling or keeping
for sale or offering to sell or bartering or otherwise
supplying any seed of any notified kind or variety
unless it fulfills the four conditions/requirements
mentioned under clauses (a) to (d) of Section 7 of the
Act.
13.1
One of the requirements specified under the
said four clauses of Section 7 is that such seeds must
conform to the minimum limits of germination and
purity specified by notification under Section 6 of
the Act.
14.
In present case, it is alleged by the
respondent authority that the seeds from the
petitioners do not conform to the minimum limits of
germination and purity. Thus, according to the
respondent authority, the petitioners have committed,
inter alia, breach of Section 7 read with Section 6
of the Act.
14.1
The Act provides, inter alia, that if the
authority finds or believes that any person/dealer
dealing in any seed of any notified kind or variety is
indulging into sale or bartering or otherwise
supplying or offering such seeds which do not conform
to minimum limits of germination and purity, then the
said authority (i.e. the Inspector) may take samples
of the seeds in question.
14.2
The sample must be drawn in the manner
prescribed under Section 14 read with Section 15 of
the Act.
14.3
A conjoint reading of the said two sections
brings out that the sample so drawn must be forwarded
by the Inspector to the Seed Analyst of State
Laboratory by following the prescribed procedure.
14.4
According to the provisions under Section 16
of the Act, the Seed Analyst of the State Laboratory
is obliged to analyse the sample as soon as may be
after the receipt of the sample under subsection (2)
of Section 15.
14.5
Such analysis must be undertaken by the Seed
Analyst of the State Laboratory and the report
prepared upon such test/analysis, must be delivered in
prescribed form to the Seed Inspector and one copy of
the report must be supplying to the person from whom
the sample was drawn.
14.6
In the event, the report is negative, i.e.
if the Seed Analyst reports that the sample of the
seeds does not conform to the minimum limits of
germination and purity as specified by the
notification under Section 6 and/or that the breach of
any other requirement prescribed under Section 7 is
found, then it would amount to contravention of the
provisions of the Act and/or Rules which would entail
prosecution and would culminate in penalty as
prescribed under Section 19 of the Act.
14.7
In such cases, the provisions under Rule
21(3) of the Rules also come in picture inasmuch as
the said rule prescribed time limit for the submission
of report by the Seed Analyst.
14.8
According to the provision under Rule 21(3),
the Seed Analyst should deliver the report as soon as
may be but not later than 30 days from the date of
receipt of sample from Seed Inspector.
14.9
If, on receipt of the report of the Seed
Analyst, the Seed Inspector finds that contravention
of any provisions of the Act is committed, then the
Seed Inspector would initiate, in accordance with the
provisions of the Act, prosecution.
14.10
After the prosecution is initiated, the
person from whom the sample was drawn, acquires an
additional right, viz. to apply to the Court to send
the sample mentioned in Section 15(2)(a) or (c) to the
Central Seeds Laboratory for its report. It is
pertinent that the said right accrues and becomes
available only after the prosecution is initiated.
15.
The said right conferred on the person (from
whom the sample was drawn) by the legislature is
valuable right and if any action of the Seed Inspector
or Seed Analyst is not in conformity with the
provisions of the Act read with the Rules, then such
action cannot be approved and would be liable to be
set aside.
15.1
A glance at the provision under Rule 21(3)
would show that the Seed Analyst is statutorily
obliged to submit his report to the Seed Inspector
within 30 days from the date of the receipt of the
sample. According to the provisions under Section
16(1) of the Act, a copy of the report should,
simultaneously, be supplied to the person from whom
the sample was drawn.
15.2
It is apparent that the Seed Inspector would
institute prosecution, if considered appropriate,
after receipt of the report from the Seed Analyst of
State laboratory and the right conferred under Section
16(2) on the person from whom the sample is drawn,
would accrue and become available to the said person
only after the prosecution is initiated. Only after
the complaint was lodged inasmuch as Section 16(2)
provides, inter alia, that 'after the institution of
prosecution under this Act ... ... ..., the accused vendor
can make an application to the Court for sending the
sample to the Central Seeds Laboratory.' Hence, only
after 'prosecution is instituted', the application for
test by Central Laboratory can be made.
16.
Thus, the said right cannot be exercised by
the accused vendor before initiation of the
prosecution.
16.1
The accused vendor is obliged to wait until
the prosecution initiated.
16.2
Therefore, it becomes crucial and important
that the time limit mentioned under Rule 21(3) is
adhered to and even at subsequent stage, any delay is
not caused.
17.
The said provision confers a right as well
as opportunity to the concerned person to bring out,
demonstrate and establish mistake or anomaly,
discrepancy, if any, analyst's report.
18.
The right conferred under Section 16(2) is
an important and a valuable right inasmuch as the
report of the Central Seeds Laboratory would,
according to the provisions contained under sub
section (3) of Section 16, supersedes the report given
by the Seed Analyst (of State Laboratory) under sub
section (1) of Section 16.
18.1
In view of the said provision, if there is
any contradiction or anomaly or discrepancy between
two reports, i.e. the report submitted by the Seed
Analyst of the State Laboratory and the report of the
Central Seeds Laboratory, then the report of the
Central Seeds Laboratory shall prevail.
18.2
It, thus, becomes clear that the power of,
and vital ingredient of Section 16(2) actually lies in
the provision under subsection (3) of Section 16 of
the Act.
19.
When the provisions under Sections 16(2) and
16(3) are read conjointly, then the importance of the
right conferred on the person from whom the sample is
drawn, becomes apparent.
19.1
The said aspect would also clarify that if
for any reason or on account of any action on the part
of the Seed Inspector and/or Seed Analyst, the person
from whom the sample is drawn, is deprived of the
right conferred by Section 16 of the Act, then the
said person can lawfully claim and contend that his
right to defence would be adversely affected and
jeopardised and therefore, the initiation of the
prosecution must fail and that, therefore, such
proceedings must be terminated.
19.2
The provisions under Sections 16(2) and
16(3) read with Rule 21(3) make the intention of the
legislature very clear, viz. the said provisions
impose mandatory obligation on the Seed Analyst to
submit report within 30 days as contemplated under
Rule 21(3). The period/limitation seems to have been
prescribed having regard to the possibility of the
deterioration in germination of the seeds with passage
of time.
19.3
The said provisions also make it clear that
the legislature has conferred right on the person from
whom the sample is drawn to controvert the report of
the Seed Analyst (of State Laboratory) by getting the
sample reanalysed by the Central Seeds Laboratory.
19.4
Now, it is apparent that if the report by
the Seed Analyst of the State Laboratory is delayed,
it would result into delay in initiation of
prosecution. Until the prosecution is initiated, the
person to whom the aforesaid right is granted, i.e.
person from whom the sample was drawn, would not get
the opportunity to apply to the Court for sending the
sample (mentioned in Section 15(2)(a) or (c) of the
Act) to the Central Seeds Laboratory and if on account
of such delay, the shelf life of the seeds expires in
the meanwhile, then the process or opportunity of
getting the sample reanalysed by the Central Seeds
Laboratory would be frustrated and would be rendered
infructuous.
19.5
Similar situation and eventuality would
arise in the event, delay in initiation of proceedings
is caused by the Seed Inspector for any other reason,
i.e. if the Seed Inspector causes delay, even after
having received the report of Seed Analyst within
prescribed time limit, in completing the formalities
for initiating prosecution and if in the meanwhile the
shelf life of the seeds expires, then also the said
person would be deprived of his right to seek re
analyses of the seeds/sample by the Central Seeds
Laboratory which, in turn, would entitle the said
person to claim and contend that his right of
effective defence which includes the right to
controvert the report of the Seed Analyst of the State
Laboratory, is jeopardised or adversely affected and
therefore, the prosecution must fail and should be
terminated.
20.
In this context, it would be profitable to
refer to the observations by the Hon'ble Apex Court
with reference to the similar provisions under the
Insecticides Act. In the case between State of
Haryana, vs. Unique Farmaid P. Ltd. [2000 Cri. Law
Journal 2962], Hon'ble Apex Court observed that:
“11.
Subsection (1) of Section 30 which appears to
be relevant only prescribes in effect that ignorance would
be of no defence but that does not mean that if there are
contraventions of other mandatory provisions of the Act,
the accused have no remedy. Procedure for testing the
sample is prescribed and if it is contravened to the
prejudice of the accused, he certainly has right to seek
dismissal of the complaint. There cannot be two opinions
about that. Then in order to safeguard the right of the
accused to have the sample tested from Central Insecticides
Laboratory, it is incumbent on the prosecution to file the
complaint expeditiously so that the right of the accused is
not lost. In the present case, by the time the respondents
were asked to appear before the Court, expiry date of the
insecticide was already over and sending of sample to the
Central Insecticides Laboratory at that late stage would be
of no consequence. This issue is no longer res integra.
In State of Punjab v. National Organic Chemical Industries
Ltd., (1996) 10 JT (SC) 480 this Court in somewhat similar
circumstances said that the Act deprived the accused to
have sample tested by the Central Insecticides Laboratory
and adduce evidence of the report so given in his defence.
This Court stressed the need to lodge the complaint with
utmost dispatch so that the accused may opt to avail the
statutory defence. The Court held that the accused had
been deprived of a valuable right statutorily available to
him. On this view of the matter, the Court did not allow
the criminal complaint to proceed against the accused. We
have cases under the Drugs and Cosmetics Act, 1940 and the
Prevention of Food Adulteration Act, 1954 involving the
same question. In this connection reference be made to
decisions of this Court in State of Haryana v. Brij Lal
Mittal, (1998) 5 SCC 434 : (1998 AIR SCW 2240 : AIR 1998 SC
2327 : 1998 /Cri LJ 3287) under the Drugs and Cosmetics
Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram, AIR
1967 SC 970 : (1967 Cri LJ 939); Chetumal v. State of
Madhya Pradesh, (1981) 3 SCC 72 : (AIR 1981 SC 1387 : 1981
Cri LJ 1009) and Calcutta Municipal Corporation v. Pawan
Kumar Saraf, (1999) 2 SCC 400 : (1999 AIR SCW 346 : AIR
1999 SC 738 : 1999 Cri LJ 1125) all under the Prevention of
Food Adulteration Act, 1954.
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 subsection (4) of Section 24
of the Act. Under subsection (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
Insecticides Inspector or the Court before which
proceedings are pending that they intend to adduce evidence
to controvert the report. In the present cases Insecticide
Inspector was notified that the accused intended to adduce
evidence to controvert the report. By the time the matter
reached the Court, shelf life of the sample had already
expired and no purpose would have been sered informing the
Insecticide Analyst was, therefore, not conclusive. A
valuable right had been conferred on the accused to have
the sample tested from the Central Insecticides Laboratory
and in the circumstances of the case accused have been
deprived of that right, thus, prejudicing them in their
defence.”
21.
When the facts of present case are examined
in light of the abovementioned provisions and above
quoted observations by Hon'ble Apex court, then it
emerges that in present case, the initiation of the
prosecution was unreasonably and inordinately delayed
and by the time, the Seed Inspector initiated/lodged
prosecution, the shelf life of the seeds / sample in
question had already expired.
22.
In this context, it would be appropriate,
even at the cost of repetition, to revert to the
details of the dates and events mentioned hereinabove
earlier. It is noticed from the said details that –
(a) On 1.7.2008, the sample was drawn/collected;
(b) On 4.7.2008, the sample was forwarded to the
Seed Analyst at State Laboratory;
(c) On 7.7.2008, the Laboratory / Seed Analyst
received the sample;
(d) On 12.1.2009, the Seed Inspector received the
report of Seed Analyst;
(e) On 12.2.2009, the Seed Inspector submitted
proposal for initiating prosecution;
(f) On 6.3.2009, the competent authority granted
sanction;
(g) On 17.4.2009, the complaint in question came to
be filed.
22.1
The abovementioned chronology brings out
that the Seed Analyst received the sample on 7.7.2008,
whereas the report was forwarded on or around
31.12.2008 and it was received by the respondent (i.e.
Seed Inspector) as per his affidavit on 12.1.2009,
i.e. after more than about 5 months from the date when
the Seed Analyst received the sample. It is also
noticed that the shelf life of the seeds / sample in
question expired in January, 2009, whereas the
prosecution came to be initiated (on 17.4.2009) after
the shelf life expired (in January, 2009).
23.
Thus, when the prosecution was initiated,
the right available to the petitioners under Section
16(2) read with Section 16(3) of the Act was already
frustrated because in view of the delay, the
petitioners could not make any application to the
Court under Section 16(2) for sending the seeds /
sample for reanalysis to the Central Seeds Laboratory
after the expiry of shelf life of the seeds / sample
in question inasmuch as after the expiry date de
generation of the seeds would setin / commence.
Consequently, the petitioners are deprived of their
right available under Section 16(2) and therefore,
their defence is jeopardised and frustrated.
24.
In this background, it emerges that the
petitioners are justified in their contention that
because of the delay their right of effective defence
is jeopardised and therefore, the prosecution /
criminal case deserves to be quashed and the
prosecution cannot be allowed to continue. Therefore,
below mentioned order is passed.
25.
Having regard to the above discussed facts
and circumstances and also having regard to the above
quoted observations by the Hon'ble Apex Court and
considering the delay caused in submission of the
report by the Seed Analyst of the State Laboratory and
the delay caused in initiating prosecution which
resulted into frustration right available to the
petitioners under Section 16(2) of the Act, the
application deserves to be and is required to be
allowed. Consequently, the application is allowed in
terms of paragraph No.4(B) and the criminal
case/Complaint No.132/2009 before the learned
Principal and Judicial Magistrate (First Class), Court
at Amirgarh is quashed. Rule is made absolute to the
aforesaid extent. The application is disposed of.
(K.M.THAKER, J.)
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