Arun C. Ashar vs State of Punjab

MANISHA BATRA, J.

The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of Criminal Complaint bearing No. COMA/197/2014 dated 25.03.2014, titled as State of Punjab v. M/s Sanghera Kheti Sewa Centre and others, filed under Section 29 of the Insecticide Act, 1968 and also for quashing of order dated 03.06.2014, whereby the petitioner and other accused were summoned to face trial in the aforesaid complaint, along with all the subsequent proceedings arising therefrom.

As discernible from the impugned complaint, M/s United Phosphorus Limited, Plot No. 3-11, GIDC, Vapi, Gujarat, was the manufacturer of Monocrotophos 36 SL, Batch No. CG3PKL3604. The said insecticide was sold by the manufacturer to M/s Durga Pesticides, Sadar Bazar, Barnala, vide invoice dated 08.08.2009. It was thereafter sold to M/s Durga Kheti Sewa Centre and then to M/s Sanghera Kheti Sewa Centre, Pharwahi Bazar, Barnala. As per further allegations, on 27.07.2010, the complainant/Insecticide Inspector along with the Agriculture Development Officer inspected the premises of M/s Sanghera Kheti Sewa Centre and found Monocrotophos 36 SL, brand name Phoskill, of the aforesaid batch, being exhibited for sale. Three samples of 100 ml each were drawn in accordance with the prescribed procedure. One of the samples was sent to the Insecticide Testing Laboratory, Bathinda. Vide report dated 28.07.2010, the Senior Analyst reported that the sample contained 33.65% active ingredient as against 36% mentioned on the label and, therefore, the sample was misbranded. A show-cause notice was thereafter issued. On behalf of the manufacturer, the petitioner, describing himself as Director and responsible Officer, replied and sought re-analysis of the sample. The sample was thereafter sent to the Central Insecticides Laboratory, Faridabad. As per second report dated 11.03.2011, the sample was not found conforming to the required specification, as the active ingredient was found to be 33.72% instead of the required 36%. It was alleged in the impugned complaint that the manufacturer and its responsible persons, arrayed as accused Nos. 7, 8, 9 and 10, had violated Sections 17 and 18 read with Section 33 of the Insecticides Act, 1968, punishable under Section 29 thereof. The petitioner was arrayed as accused No. 8 and was described in the complaint as a responsible officer of the manufacturing company. After presentation of the complaint, the learned trial Magistrate, vide impugned summoning order dated 03.06.2014, summoned the accused persons, including petitioner, to face trial for commission of aforementioned offence. Aggrieved thereof, the petitioner has filed the present petition.

It is argued by learned senior counsel for the petitioner that the impugned complaint as well as the summoning order are not sustainable in the eyes of law. It is further submitted that the petitioner was working as Director (Finance) of the company and had no role in its manufacturing, production or quality-control process. It is argued that the complaint contains no specific allegation explaining how the petitioner was responsible for the alleged offence. Merely because he was a Director of the company, he could not be made criminally liable in the absence of a specific averment showing that he was in charge of and responsible for the conduct of the business. Learned senior counsel further submits that the complaint itself refers to Mr. Yadwinder Singh as the person responsible for the conduct of business of the company in the State of Punjab. The petitioner was functioning from the company's Mumbai office as Director (Finance) and had no control over the manufacturing process. It is, therefore, contended that his prosecution is an abuse of the process of law.

It is also argued by learned senior counsel that the learned Magistrate did not properly examine the complaint and the pre-summoning material before issuing process against the petitioner, particularly when he was residing outside the territorial jurisdiction of the trial Court. A totally non-speaking and cryptic order had been passed summoning the petitioner and other accused to face trial. More so, the complaint is barred by limitation as the the Insecticide Quality Control Laboratory report was received by the respondent as early as on 17.08.2010, whereas the complaint was filed only on 25.03.2014, after an inordinate delay. With these broad submissions, it is urged that the petition deserves to be allowed and the impugned complaint along with all the subsequent proceedings having emanated therefrom including the summoning order is liable to be quashed. To fortify his arguments, learned senior counsel has relied upon Cheminova v. State of Punjab, 2021 (8) SCC 818, State of Rajasthan v. Sanjay Kumar, 1998 AIR (SC) 1919, Innova Captab v. State of Haryana, 2023 (4) RCR (Cri) 846, M/s Meridian Medicare v. State of Punjab, CRM-M-45633 of 2019 (D/d 10.04.2023), M/s Pepsi Foods v. Special Judicial Magistrate, 1998 (5) SCC 749, Birla Corporation Ltd. v. Adventz Investments & Holdings, 2019 (16) SCC 610, Vijay Dhanuka v. Najima Mamtaj, 2014 (14) SCC 638, JM Laboratories v. State of Andhra Pradesh, 2025 INSC 127 and Vinod Kumar Dhawan v. Union of India, 2024 NCPHHC 163102.

Reply has been filed by the respondent-State. Learned State counsel has argued the complaint has been filed in accordance with law against the persons responsible for the manufacture and sale of the misbranded insecticide. It is submitted that the petitioner was arrayed as accused No. 8 and his name and status as Director of the company were specifically mentioned in the complaint. Other co-accused had confessed their guilt before the learned trial Court. Learned State counsel further submits that the sample was found to be misbranded not only in the first analysis but also on re-analysis conducted at the instance of the petitioner. Thus, there is sufficient material to proceed against the accused. It is argued that the pleas raised by the petitioner regarding his role in the company involve disputed questions of fact which can be examined during trial. The summoning order was passed by the learned Magistrate after considering the material on record and no illegality has been pointed out therein. Learned State counsel, accordingly, submits that no ground for interference under Section 482 Cr.P.C. is made out and the present petition deserves to be dismissed.

This Court has heard the rival submissions.

Let us first consider the contentions raised with regard to limitation. In this regard, the judgment of the Hon'ble Supreme Court in Cheminova's case (supra) is of much significance. In the said case, the Hon'ble Supreme Court held that the period of limitation commences from the date on which the alleged offence comes to the knowledge of the complainant, and a subsequent report obtained upon re-analysis cannot furnish a fresh starting point for limitation. It was specifically held that merely because a further report was obtained from the Central Insecticide Testing Laboratory, the date of receipt of such subsequent report could not be made the basis for commencement of limitation, when the earlier report itself disclosed the alleged offence. Similar view was expressed in Sanjay Kumar, Innova Captab, Vinod Kumar Dhawan and M/s Meridian Medicare's cases (supra).

Applying the aforesaid principle to the facts of the present case, it is evident that the alleged offence had already come to the knowledge of the complainant on receipt of the initial report on 28.07.2010. The subsequent proceedings/report, therefore, cannot have the effect of extending or reviving the period of limitation which had already commenced. Consequently, the complaint having been instituted beyond the prescribed period of limitation, continuation of the proceedings against the petitioner would amount to an abuse of the process of law. The contention raised by the petitioner on this count, therefore, merits acceptance.

Further, the impugned summoning order also cannot be sustained for the reason that it is completely non-speaking and does not reflect any application of mind by the learned Magistrate to the facts of the case or the material placed before him. The learned Magistrate has simply proceeded to summon the accused without recording as to what allegations against the petitioner and co-accused were found prima facie established or what material persuaded him to form such an opinion. The Hon'ble Supreme Court in M/s Pepsi Foods's case (supra) has held that summoning of an accused in a criminal case is a serious matter and that criminal law cannot be set into motion as a matter of course. The order summoning the accused must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto. The Magistrate is required to examine the nature of the allegations made in the complaint and the oral as well as documentary evidence produced in support thereof and thereafter consider whether any offence is prima facie made out against the accused. The aforesaid requirement assumes greater significance in the present case, as the petitioner had been specifically arrayed as an accused in his individual capacity. The learned Magistrate was, therefore, required to examine the material on record qua the petitioner and to record his satisfaction as to how the allegations and evidence disclosed his involvement in the alleged offence. However, the summoning order does not undertake any such exercise. It does not even refer to the specific role attributed to the petitioner or the material on the basis of which he has been summoned. A mere reproduction of the conclusion that a prima facie case is made out, without disclosing the basis for such conclusion, cannot be regarded as due application of judicial mind. As held in M/s Pepsi Foods Ltd. (supra), the Magistrate cannot remain a silent spectator while recording preliminary evidence as he has to carefully scrutinise the material brought on record and thereafter examine whether an offence is prima facie committed by all or any of the accused. In the facts of the present case, the complete absence of any discussion in the summoning order regarding the role of the petitioner, coupled with the failure to notice the specific defence raised by him, renders the order vulnerable. The order, therefore, fails to demonstrate the essential application of mind required before a person is compelled to face a criminal trial.

The aforesaid defect assumes significance as the complaint does not disclose any specific role of the petitioner in the manufacture, production or quality control of the insecticide. The petitioner was admittedly Director (Finance), whereas the complaint itself refers to Yadwinder Singh as the person responsible for the conduct of the company's business in Punjab. Merely because the petitioner was a Director, in the absence of specific allegations connecting him with the alleged offence, he could not have been summoned.

The fact that the sample was found misbranded, including upon re-analysis sought by the petitioner, does not by itself establish his individual criminal liability. Likewise, the confession of the co-accused cannot be used to sustain the proceedings against the petitioner, who himself had not made any such confession. Thus, the complaint is barred by limitation; the summoning order is wholly non-speaking and does not reflect the requisite application of mind; and there is no specific material in the complaint connecting the petitioner with the alleged offence. Continuation of the proceedings against him would, therefore, amount to an abuse of the process of law. Consequently, the present petition is allowed. Criminal Complaint No. COMA/197/2014 dated 25.03.2014, the summoning order dated 03.06.2014, qua the petitioner, and all subsequent proceedings arising therefrom are hereby quashed.