Mahendra Hybrid Seeds Co. Pvt., Ltd. v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07..07..2008CORAMTHE HONOURABLE MR. JUSTICE S. PALANIVELUCrl.O.P.No.11321 of 2006 and M.P.No.2954 of 20061. Mahendra Hybrid Seeds Co. Pvt., Ltd., rep by Tr. P.R.Venkataramana Area manager 2. P.R. Venkata Ramana... PetitionersVs State Represented by Seed InspectorO/o Asst. Director of Seed Inspection, HIG, B-60, Tamil Nadu Housing Board Colony, Opp. New Bus Stand, Omalur Main Road, Salem – 636 007 ... RespondentCriminal Original Petition filed under section 482 of Cr.P.C. to call for the records and quash the complaint and proceedings inS.T.C.No.517 of 2005 on the file of the learned Judicial Magistrate-III,Salem. For Petitioner : Mr. Krishna Srinivasan for M/s. Ramasubramanian & Associates For Respondent : Mr. V.R.Balasubramanian, Additional Public ProsecutorO R D E RThe first petitioner is a company incorporated under the provisions of Companies Act 1956, having its Registered Office at "MahalakshmiCompound" A-10/11, old MIDC Area, Post Box – 52, Jalna – 431203. Theplace of business is at Hyderabad. The second petitioner is serving as Production Manager of the first petitioner company. On 15.06.2004, the Seed Inspector, who is the complainant in S.T.C.No.517 of 2005 on the file of the Judicial Magistrate-III, Salem, inspected the business premises of Sree Vishnu Traders in Salem and drew three samples of various seeds Hybrid Maize and Tamoto as per procedure. The samples were sent to Seed Testing Officer, Dharmapuri for germination and https://hcservices.ecourts.gov.in/hcservices/ physical purity tests and some other samples were sent to the SeedAnalysit (Genetic purity), Coimbatore for Genetic Purity Test, as per rules. The remaining one set of samples from each item was retained by the Seed Inspector himself.

The report of the Seed Analyst (Genetic purity) is dated18.09.2004 under Form -7, which shows that the Hybrid Maize kept by the Accused for sale was sub-standard and was having only 40% Genetic purity against the notification of Government of India in S.O.No.882(E) dated18.12.1991. As per the prescribed norms, the Hybrid Maize Seed should have 95% Genetic purity (minimum).

The accused viz., the petitioners are the producers of the said seeds and they are marketing through M/s P.I. Industries, Hyderabad, and the same was supplied by them to the dealer M/s. Sree Vishnu Traders, Salem, who is dealing with the seeds.

A Private complaint was laid by the Seed Inspector, Salem before the above said Court. It was taken congnizance of. Summons were also issued to the petitioners/accused.

It is the outcry of the petitioners that their valuable rights have been taken away by the lethargic attitude on the part of the complainant and if the complaint has been laid earlier, they might not have been deprived of their rights. The crux of the matter is, Statement II annexed to the complaint shows that the test of the sample seeds was undertaken on 03.05.2004 and the shelf life of the seed was valid upto 2.2.2005. Seed Test Certificate is dated 06.05.2004. But the complaint was presented into the Court only on 21.2.2005, after the expiry date 2.2.2005.

In this context, the statutory right conferred upon the accused has to be seen. Section 16(2) of Seeds Actr 1966 (hereinafter referred to as "Act" ) provides, after lodging of complaint, on payment of prescribed fee and on application, the accused may request the Court todespatch the sample for analysis to the Central Seed Laboratory. Afterthe receipt of the Seed Report, the Court would proceed upon the trial of the case. It is advantageous to extract relevant provision under Actwhich goes thus: "16. Report of Seed Analyst :-- (1) The SeedAnalyst shall, as soon as may be after the receipt of the sample under sub-section (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. https://hcservices.ecourts.gov.in/hcservices/

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 section15 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 sub-section (1) of Section 15are 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. "

The above provision enables the accused to show the genuineness of the samples collected from his establishment and it must be ensured that the valuable right conferred upon the accused is not at all taken away. As far as the facts of the present case are concerned, even thoughthe report dated 6.5.2004, was obtained by the Seed Inspector much earlier, there is considerable and inordinate delay on his part to lay the complaint before the Court. Since the validity of the seed expired on 2.2.2005, it is futile exercise on his part to file the complaint much later i.e., on 21.2.2005. In case, had the complaint been filed earlier, the accused whould have taken appropriate legal steps to send the samples to Central Seed Laboratory for necessary analysis and his valuable right has been lost by the lapse on the part of the complaint.

In this context, learned counsel for the petitioner would place reliance on the decision of Hon'ble Supreme court reported in 1998 (1)SCC 190 [State of Haryana v. Unique farm aid (petitioner) Ltd. and others] in which Their Lordships have observed as under: "11. Sub-section (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. The procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the 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 the 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, https://hcservices.ecourts.gov.in/hcservices/ the expiry date of the insecticide was already overand sending of the sample to the Central InsecticidesLaboratory at the late stage would be of no consequence. This issue is no longer res integra. InState of Punjab v. National Organic ChemicalIndustries Ltd., this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have the sample tested by the Central InsecticidesLaboratory and adduce evidence of the report so given in his defence. This court stressed the need to lodge the complaint with utmost despatch so that the accused may opt to avail the statutory defence. TheCourt held that the accused had been deprived of avaluable right statutorily available to him. "

The Supreme Court came down heavily on the lethargic attitude on the part of the prosecuting agency, who by their attitude paved way and allowed the loss of right to the accused. If there were contraventions of the mandatory provisions of the Seeds Act, the accused would have no remedy and their valuable rights would be exposed to danger, prejudicing them in their defects.

In view of the Apex Court, in the abovesaid circumstances, pursuing a case by the complainant is an abuse of process of Court if the prosecution is allowed to continue against the accused persons. Itis bounden duty of the complaint to come to the Court at the earliest point of time, which would leave no room to say that the rights of the accused are at peril. It is the classical instance of abuse of processof law to file a complaint on 21.2.2005, while the validity of the seed already expired on 2.2.2005. On the strength of this observation, it isto be held that the prosecution could not proceed. The complaint deserves to be quashed and it is accordingly quashed.