Dharam Pal Khullar vs State of Punjab

Harmohinder Kaur Sandhu, J.

This judgment will also dispose of Criminal Misc No. 3562M of 1992, Ashok Kapoor v. State of Punjab, as the same legal controversy is involved in both the cases.

The facts giving rise to these petitions are that Chief Agricultural Officer, Kapurthala, issued a licence in the name of M/s. Singh Kheti Store, Dhilwan, Tehsil and District Kapurthala for dealing in pesticides and insecticides. On 9.12.1986 Shri Amarjit Singh Insecticide Inspector inspected the stock register of M/s. Singh Kheti Store and purchased three containers of Ethyle Ester Herbicide bearing batch No. A 86526 of Agromore brand by way of sample, for an amount of Rs. 164/. Each container of sample along with necessary form was sealed by the Insecticide Inspector in the presence of Shri Sadhu Singh Saggu and Balbir Singh respondent. One sealed sample was handed over to Balbir Singh sole proprietor of M/s. Singh Kheti Store and the remaining two containers were despatched to the office of Chief Agricultural Officer, Kapurthala. One portion of the sample was later on sent to the Senior Analyst, Insecticides Testing Laboratory, Department of Agriculture, Punjab, Punjab Agriculture University Campus, Ludhiana. The test report of the sample of herbicide was received in the office of Chief Agricultural Officer, Kapurthala on 22.1.1987 with the observation that the sample did not conform to I.S.I. specifications in respect of active ingredients percentage test. This analysis was made by using ISI specification No. 72331974. Some objection was raised by the respondents and the sample was again analysed by the same analyst by using ISI Specification No. IS10243 of 1982. The same was again declared as not conforming to I.S.I,. specification in respect of active ingredient percentage test. The active ingredients were found to the extent of 26.92% and 26.96% respectively by using the different tests as against the requirement of 34% as printed on the containers. A complaint was, thus, filed against Balbir Singh sole proprietor of M/s. Singh Kheti Store, Dhilwan, Dharam Pal Khullar, the petitioner partner of M/s. Modern Kheti Store, 53 Hide Market, G.T. Road, Amritsar against Managing Director, Indian Cropicals Private Limited and Shri B.K. Vijaya Gopal, Works Manager of M/s. Agro more Limited Mysore Road, Bangalore for offences under Section 29(1)(a) read with Sections 3(k), 18(1)(e) and 18(2) of the Insecticides Act, 1968 (the Act for short). It was alleged that M/s. Singh Kheti Store had acquired this herbicide from M/s. Modern Kheti Store and that firm had acquired it from M/s Indian Cropicals Private Limited, Ludhiana. This herbicide was manufactured by M/s Agromore Limited, Mysore Road, Bangalore. The complaint was filed after a sanction in writing was obtained from the duly authorised person.

Dharam Pal Khullar of M/s. Modern Kheti Store and Ashok Kapoor, Managing Director of Indian Cropicals Private Limited who are the distributors of the herbicide filed the petitions under Section 482 Cr.P.C. for quashing of the complaint referred above pending in the Court of Chief Judicial Magistrate, Kapurthala in order to prevent abuse of the process of the Court.

The petitioners alleged that the sample was taken on 9.12.1986 but both the test reports did not bear any date. The sample was tested for the second time after the manufacturer sent letter Annexure P6 on 17.12.1987 because the earlier test was not performed according to the correct formula. The second test was performed after 17.12.1987 in violation of Section 24(1) of the Act according to which the analyst was bound to send a copy of the test report to the Insecticide Inspector concerned within a period of 60 days. It was further pleaded that they were simply the licensed distributors and they had purchased the material in question from the manufacturer through proper bills.

In the return filed by the respondent it was pleaded that although M/s. Modern Kheti Store purchased the herbicide form M/s. Indian Cropical Private Limited, New Delhi, yet there was nothing on the file to suggest that the later firm was a duly licensed distributor. This fact was yet to be established by leading evidence. It was further maintained that copy of the report of the analyst was submitted to all the persons concerned including the petitioner along with showcause noticed, on 25.3.1987 and the petitioner(s) acknowledged the receipt of report. The second test was performed after objection was raised by the manufacturer and still the herbicide was found not according to ISI specifications.

I have heard the counsel for the parties.

The only contention raised by the learned counsel for the petitioner was that both the test reports did not bear the date. The first test was performed according to a formula which was not correct and when no objection was raised the second test was performed from the container which was already opened and this second test was performed after 17.12.1987 and as such a copy of the test report was not sent to the Insecticide Inspector within a period of 60 days. The learned counsel referred to the reports Annexure P5 and Annexure P/7. Annexure P/5 referred to laboratory sample 617 Code No. 428 and batch No. A 86526. The same particulars are contained in the subsequent report Annexure P7. It was, thus, urged that neither the first test nor the second test was conducted properly. The second test was conducted, of the substance which was already opened and was exposed to moisture. The second report did not reach the Insecticide Inspector within 60 days and as such there was violation of the provisions of Section 24(1) of the Act and the complaint was liable to be quashed on this ground. This contention of the learned counsel is, however, without any merit. The sample was seized on 9.12.1986 and it was analysed shortly thereafter. The report was sent to the Insecticide Inspector on 22.1.1987 i.e. within a period of 60 days of the taking of the sample and copies of the report were sent to the petitioners. Vide Annexure P/6 M/s. Agromore Limited informed the Chief Agricultural Officer, Kapurthala that the sample may be got analysed as per ISI specification No. 10243 of 1982. This letter is dated 17.2.1987 and in view of this letter the sample was again got tested and copies of the second report too were suppled to the petitioners. Since the second test was conducted at the instance of the manufacturer this report could not be sent to the Insecticide Inspector within 60 days nor Section 24(1) of the Act speaks of the sending of second report to the Insecticide Inspector. The complaint is, therefore, not liable to be quashed on this ground. This question as to what was the effect of the second analysis of the sample from the same container can also be determined after evidence is led. The complaint primafacie spells out all the ingredients of the offence and there is no fundamental defect which may call for interference at this stage.

As a result, I find no merit in these petitions and dismissed the same.