TMI Blog2022 (2) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on account of prejudice and violation of Section 16 of the Act? - HELD THAT:- The date of collection of sample is 12-11-2020. The Seed Analyst gave his report on 4-12-2020. The life of the seed was till 18-02-2021. All these are undisputed facts. After the life of the seed itself had expired by the time prosecution was launched which was on 16-03-2021 the right of the accused to get the seed re-assessed by the Central Seed Laboratory under sub-section (2) of Section 16 is rendered illusory. An important right of the accused is taken away by the callous action on the part of the prosecution. If the life of the seed had expired, the seed cannot be sent for a second opinion by the Central Seed Laboratory. It ought to have been done prior to the expiry of life of the seed. Therefore, taking away the right under subsection (2) of Section 16 has caused great prejudice to the petitioner or even the Company against whom the notice is issued. It is trite law that procedural violation causing prejudice will have to be construed strictly and it cannot be said that trial should continue notwithstanding the right under sub-section (2) of Section 16 being taken away by indolence of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Limited along with the report of the Seed Analyst, alleging that the seed was sub-standard and sought a reply at the hands of the Company to show cause as to why proceedings should not be initiated against the Company. The show cause notice was received by the Company on 11-03-2021 long after expiry of three days given to submit its reply. The Company responded to the show cause notice on 30-03-2021 disputing the findings of the Seed Analyst and placed on record several violations of the provisions of the Act while collecting and analyzing the sample that was submitted and also contended that since collection and determination of seed was in violation of the provisions of the Act, the entire process is a nullity. 4. After filing the reply on 30-03-2021 neither the Company nor the petitioner heard anything from the complainant. The petitioner then received information through accused Nos. 2 and 3, the dealers, that a complaint was registered by the complainant in Complaint No. 7 of 2021 before the competent Court by registering it on 6-03-2021. On registration of the said complaint, the learned Magistrate has taken cognizance of the offences punishable under Sections 6 and 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Company being made an accused in the proceedings? (ii) Whether the entire proceedings get vitiated on account of prejudice and violation of Section 16 of the Act? 10. Point No. (i): Whether the complaint was maintainable without the Company being made an accused in the proceedings? 11. It is not in dispute that the petitioner is the Managing Director of Syngenta India Limited which is a Company registered under the Companies Act, 1956. The entire proceedings are initiated for offences punishable under Sections 6(a) and 19(a) of the Act. Sections 6 and 19 and 21 of the Act read as follows: 6. The Central Government may, after consultation of 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 marks or label may contain. ... ... ... 19. Penalty.--If any person-- (a) contravenes any provision of this Act or any rule made ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directors of the Company are also held to be vicariously liable and become liable to be proceeded against and punished. 12. It is not in dispute that the Company is not made a party in these proceedings which is in violation of Section 21 (supra). The proceedings without, at the outset, the Company being made a party would not be maintainable. The issue in this regard need not detain this Court for long or delve deeper in to the matter as identical provisions of the Negotiable Instruments Act, 1881 have been interpreted by the Apex Court in the case of ANEETA HADA (2012) 5 SCC 661 (supra) wherein the Apex Court has held as follows: 53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant. 56. We have referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, I answer the point arising in favour of the petitioner. 13. Point No. (ii): Whether the entire proceedings get vitiated on account of prejudice and violation of Section 16 of the Act? 14. Seeds were collected from a dealer by the complainant. The dealer is accused No. 3. The sample was collected or seized on 12-11-2020. The sample collected was sent to the Analyst at the Seed Examination Centre in the Department of Agriculture, Government of Karnataka. The sample that was sent by the complainant was received by the Seed Analyst on 13-11-2020 as could be seen from the documents appended to the petition. The Seed Analyst submits his report on 4-12-2020 opining that germination of the seed was at 81% as against the prescribed germination in terms of Section 6 of the Act at 98.6%. The Seed Analyst declared the seed to be sub standard . 15. The seed that was taken during the search was manufactured on 19-05-2020. The shelf life of that particular seed was to expire on 18-02-2021. If the said Analyst had submitted his report on 04-12-2020, nothing stopped the respondent/complainant to take further proceedings in accordance with law. After the life of the seed expired on 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1), its cost, calculated at the rate at which such seed is usually sold to the public, shall be paid on demand to the person from whom it is taken. (3) The power conferred by this section includes power to break-open any container in which any seed of any notified kind or variety may be contained or to break-open the door of any premises where any such seed may be kept for sale: Provided that the power to break-open the door shall be exercised only after the owner or any other person in occupation of the premises, if he is present therein, refuses to open the door on being called upon to do so. (4) Where the Seed Inspector takes any action under clause (a) of sub-section (1), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures on a memorandum to be prepared in the prescribed form and manner. (5) The provisions of the Code of Criminal Procedure, 1898 (5 of 1898), shall, so far as may be, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under section 98 of the said Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , forthwith revoke the order passed under the said clause. (5) Where as Seed Inspector seizes any record, register, document or any other material object under clause (d) of sub-section (1) of section 14, he shall, as soon as may be, inform a magistrate and take his orders as to the custody thereof. (Emphasis supplied) After transmission of the seed to the Seed Analyst by the Seed Inspector in terms of Section 15, the Seed Analyst is required to prepare a report under Section 16. Section 16 of the Act runs as follows: 16. (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 sub-section (2) of section 15 to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of the accused to get the seed re-assessed by the Central Seed Laboratory under sub-section (2) of Section 16 is rendered illusory. An important right of the accused is taken away by the callous action on the part of the prosecution. If the life of the seed had expired, the seed cannot be sent for a second opinion by the Central Seed Laboratory. It ought to have been done prior to the expiry of life of the seed. Therefore, taking away the right under subsection (2) of Section 16 has caused great prejudice to the petitioner or even the Company against whom the notice is issued. 19. It is trite law that procedural violation causing prejudice will have to be construed strictly and it cannot be said that trial should continue notwithstanding the right under sub-section (2) of Section 16 being taken away by indolence of the respondent/complainant. Reference made to the judgment of the Apex Court in the case of UNIQUE FARMAID PRIVATE LIMITED (1999) 8 SCC 190 (supra) in the circumstances is apposite. In the said case the Apex Court holds as follows: 11. Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the right of the accused to get the sample tested again, a right that is conferred under the Insecticides Act gets deprived if the proceedings are not initiated without any loss of time. The Apex Court further holds that the accused had been deprived a valuable right statutorily available to him and order obliteration of criminal proceedings against the accused therein. The aforesaid judgment of the Apex Court in the case of UNIQUE FARMAID is followed by this Court again interpreting Insecticides Act in THE MANAGING DIRECTOR, M/S. ANUP PRODUCT LIMITED ILR 2001 KAR 5217's case (supra) wherein a learned single Judge of this Court holds as follows: 2. The alleged offence pertains to the material, trade name of which is ANUFEM and the commercial name is FENVALRATE. Certain undisputed facts may be set out. Purchase was made on 28.11.1994. It was sent for analysis to the Insecticides Control Laboratory at Bellary on 29.11.1994. The Analyst tested it on 9.12.1994 and opined that the sample does not conform to the set standard. Sub-section (2) of Section 24 of the Act requires that a copy of the said report shall be delivered by the Insecticide Inspector to the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd this is what the Supreme Court said in this regard in State of Haryana v. Unique Farmaid P. Limited. 1999 (3) CC. Cases (SC) 101. 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 the 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 the State of Punjab v. National Organic Chemical Industries Ltd., JT 1996 (10) SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of 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. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and would dismiss the appeals. (Emphasis supplied) In the light of the facts obtaining as afore-narrated and the judgments of the Apex Court extracted hereinabove, both with regard to the Company not being made a party and the entire proceedings getting vitiated on account of prejudice being caused to the accused, in my considered view, this is a fit case where this Court has to exercise its jurisdiction under Section 482 of the Cr.P.C. and obliterate the proceedings against the petitioner, failing which such proceedings would become an abuse of the process of the law and result in miscarriage of justice. 20. Before parting with the case, it may not be inapt, to observe that plethora of cases are brought before the Court, like the case at hand, wherein prosecution is launched after, either the period of limitation is over or where the right of the accused available in the statute gets extinguished, by sheer inaction on the part of the respective departments. The Apex Court in the case of PEPSI FOODS LTD. V. SPECIAL JUDICIAL MAGISTRATE (1998) 5 SCC 749, has observed as follows: 28. Summoning of an accused in a criminal case is a serious matter. Criminal law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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