Ashwani Kumar Bhakoo vs State of Punjab

G.S. Chahal, J.

Ashwani Kumar Bhakoo and others, by means of this petition under Section 482 Cr.P.C. read with Articles 226/227 of the Constitution of India, seek quashing of the complaint dated October 31, 1980 (Annexure P3) for offences under Sections 3(k)(i), 17, 18, 29(1) and 33 of the Insecticides Act, 1948 and all consequent proceedings.

The facts on the basis of which the prosecution was launched may be drawn from the complaint Annexure P3 and briefly enumerated :

On March 31, 1987 Gurcharan Singh, Insecticides Inspector carried out an inspection of the premises of M/s. Bhakoo Plant Protectors, which holds an Insecticide Licence. After disclosing his identity and the purpose of his visit, he took sample of Aldrin of 30 EC in two packets of 250 mi. each out of the six packets which had been manufactured by M/s United Pesticides, Ambala City. All the three packets were seled and one of the samples was sent to Insecticide Quality Control Laboratory, Ludhiana which after test made a report that it was misbranded as it did not conform to the ISI specifications with respect to the active ingredients percentage test.

As per the averments made in paras 3 and 4 of the petition, a report with respect to the sample was sent to the petitioner and on receipt of the showcause notice, petitioner1 sent his reply and also appeared in person to explain his position that he was not at fault as he did not store the insecticide in unsealed packings and also that the sample was lying in its original sealed packings. The petitioners, thus, claim that they had purchased the insecticide from M/s Kheti Sewa Centre, Ludhiana vide bill dated March 23, 1987 and petitioners1 and 2 kept them in their original sealed packings as packed by the manufacturer. The petitioners have also challenged the prosecution the basis of the absence of a legal sanction and also that the prosecution was launched after the expiry of the shelflife of the sample.

Section 30(3) of the Act being relevant may be drawn :

"30(3). A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves

(a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof :

(b) that he did not know and could not with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and

(c) that the insecticide while in his procession was properly stored and remained in the same state as when he acquired it."

This Section, thus, provides for a defence to petitioners 1 and 2 if they are able to establish all the three grounds as given in subparas (a), (b) and (c) of subclause (3). This obviously requires a proper proof at the trial. Because all the three grounds are questions of fact and they must be proved like an other fact. The petitioners can take advantage of this clause only after leading evidence at the stage of trial. Mere averments in the petition cannot be deemed to be evidence, which should be accepted and on the basis of which the complaint may be quashed.

Admittedly, a showcause notice was sent to the petitioners. The petitioners had a right to challenge this report by applying under Section 24(3) of the Act which I quote :

"24(3). Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty eight days on the receipt of a copy of the report notified in writing the Insecticide Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report."

The petitioners did not give any notice of their intention to challenge the report of the analyst and the report as such has become final. The filing of the complaint after the expiry of the period of shelflife of the insecticide, has thus no significance and no advantage can be given to the petitioners.

The sanction order shows that sanction for prosecution was granted only with respect to petitioner 1 and 2 and there was no sanction with respect to prosecution of petitioner 3. The petitioner3 could not be prosecuted in the absence of a valid sanction. The question of validity of the sanction granted for prosecution of petitioners 1 and 2 is, however, left open as the prosecution must be given an opportunity to show that the authority had considered the record and applied its mind.

In view of the above discussion, petition of Anil Kumar Vasudeva petitioner 3 is hereby allowed as his prosecution is without valid sanction and the complaint and all consequent proceedings are quashed qua him. Petition of petitioners 1 and 2 having no merit it is hereby dismissed.