JUDGMENT

RAJNESH OSWAL, J. –

1. The present petition has been filed by the petitioners for quashing the proceedings of the complaint No. 122 of 2017, titled “Department of Agriculture through Law Enforcement Inspector, Kathua vs. Sh. Altaf Ahmad and Anr.” under Section 3k (i) & 29(1) (a) (i) of the Insecticide Act, 1968 (for short “the Act”) pending before the Court of learned Munsiff (JMIC), Kathua (hereinafter to be referred as “the trial court”).

2. Quashing of the complaint has been sought on the ground that the petitioners had filed an application under Section 24(3)&(4) of the Act for re-analyzing of the product, namely “Noor (Dodine) 65% WP” but the same was not decided by the learned trial court, which has infringed the valuable right of the petitioners, more particularly when the shelf life of the samples expired on 09.02.2019.

3. Learned counsel for the petitioners has submitted that the manufacturer- Company has not been arrayed as an accused in the complaint and the trial court did not decide the application filed by the petitioners on 09.05.2017 under Section 24(3)&(4) of the Act for re-analyzing of the product.

4. Per contra, Mr. Dewakar Sharma, learned counsel appearing for the respondent has argued that the complaint has been filed in accordance with law and no right of the petitioners has been violated.

5. Heard learned counsel for the parties and perused the record.

6. A perusal of the record reveals that the respondent filed a complaint against the petitioners alleging therein that eight numbers of Insecticide samples were drawn from the petitioner No. 1 at M/s Indofil Industries Limited, E-9 Transport Nagar, Parimpora Kashmir, for chemical analysis. The receipt was also taken on duplicate form No. XII. The entire samples were divided separately into three equal parts and sealed in presence of the petitioner No. 1. One part of Insecticide sample along with memorandum in form No. XXI was sent to the State Pesticides Laboratory Department of Agriculture, Talab Tillo, Jammu, the second part of sample was handed over to M/S Indofil Industries Limited, E-9 Transport Nagar, Parmpora Kashmir, Srinagar and third part of the sample was retained in the office for reference. It has been further stated that the result dated 20.03.2017 was received from the Laboratory on 23.03.2017 and the product was found to be „misbranded?. The date of manufacturing of the product namely “Noor (Dodine) 65% WP” was 10.02.2017 and expiry date was 09.02.2019. The complaint was filed on 15.04.2017. The record further depicts that the petitioners filed an application for dismissal of the complaint before the learned trial court on the ground that the manufacturer –company has not been arrayed as accused.

7. The record also depicts that a Show Cause Notice dated 24.03.2017 was issued to the Unit Incharge, M/s Indofil Industries Ltd, Mumbai. M/S Indofil Industries Ltd. vide its communication dated 29.03.2017 in reply to the Show Cause Notice dated 24.03.2017, intimated the respondent that it intended to adduce evidence in contravention to the aforesaid report as provided under Section 24(3) of the Insecticide Act and further the respondent was requested to send the samples for re-analysis to the Central Laboratory. In the said communication, it was also stated that M/S Indofil Industries ltd. was a reputed manufacturer-company. The company admittedly has not been arrayed as accused in the complaint. A perusal of the record of the trial court reveals that an application was made by the petitioners before the learned trial court on 09.05.2017 for re-analyzing the product. The respondent filed the response to the said application by acceding to the prayer made by the petitioners but the said application was not decided by the learned trial court.

8. Without arraying the manufacturer-Company as accused, the present complaint against the petitioners is not maintainable. Once the company has not been arrayed as accused, the petitioners who are employees of the company, cannot be prosecuted for the commission of the alleged offence. This court by placing reliance upon the judgment of the Hon’ble Supreme Court of India in case, titled, “Himanshu v. B. Shivamurthy, (2019) 3 SCC 797”, quashed the criminal proceedings of the compliant, titled “Department of Agriculture vs. Sunil Kumar & Anr”. in CRMC No. 543/2018 decided on 31.05.2024, where the manufacturer-company was not arrayed as accused in terms of Section 33 of the Insecticides Act, by observing as under:

“Though the judgment pertains to vicarious liability under section 141 of the Negotiable Instruments Act, but the language employed in Section 33 of the Insecticides Act is almost identical to that of Section 141 of the Negotiable Instruments Act, as such, the ratio of the judgment (supra) is applicable in the instant case as well.”

9. More so, this Court finds that the learned trial court did not decide the application of the petitioners for re-analyzing the samples within the period of shelf life of the product as mentioned above, as such, right of the petitioners for getting the samples reanalyzed under section 24(3)&(4) of the Act, has been violated.

10. In “Northern Mineral Ltd. v. Union of India”, (2010) 7 SCC 726, the Hon’ble Supreme Court of India has held as under:

“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 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.”

(Emphasis added)

11. Reliance is also placed upon the decision of the Co-ordinate Bench of this Court in case titled “Herbicides India Ltd. vs. State of J&K and Anr.” passed in 561-A Cr. P.C. No. 50/2012 decided on 11.11.2013.

12. In view of what has been said and discussed above, the present petition is allowed and the proceedings of the complaint No. 122 of 2017, titled, “Department of Agriculture through Law Enforcement Inspector, Kathua vs. Sh. Altaf Ahmad and Anr” under Section 3k (i) 29(1) (a) (i) of the Insecticide Act, pending before the court of Munsiff (JMIC), Kathua, are quashed.

Petition allowed.

********