Karma Chand and Sons vs State of Punjab

K.K. Srivastava, J. (Oral)

Heard Mr. Ravinder Chopra learned counsel for the petitioners and Mr. I.P.S. Sidhu learned State Counsel appearing for the respondent.

The petitioners seek the quashing of the complaint filed under Sections 3(k) (1), 17, 18, 29 and 33 of the Insecticide Act, 1968 read with section 27(5) of the Insecticides Rules, 1971 and all the consequential proceedings arising out of it.

The case of the petitioners is that the Insecticide Inspector, Baghapurana visited the shop of the petitioners on 16.6.1994 and took three original sealed packs of one litre each of Anilophos 30% EC manufactured by M/s Hindustan Pulverising Mills, 209210, Anupam Bhawan, Azadpur Commercial Complex, Azadpur, Delhi. The said insecticide having batch No. 44 was manufactured in May, 1994 and was to expire in April, 1996. The Insecticide Inspector complied with the provisions under the Rules and intimation was given to the petitioner in the requisite form `XII'' furnishing the details of the sample taken. The sample was sent for analysis to the Punjab State Quality Control Laboratory, Bathinda and was found deficient as it did not conform to ISI specifications with respect to its percentage active ingredients and was declared misbranded. A showcause notice was issued to the petitioner vide notice No. 3828 dated 17.8.1994 duly intimating to the petitioners that the sample was found misbranded. The petitioners gave a detailed reply to the said showcause notice on 25.8.1994. Subsequently, on 28.11.1995, the petitioners moved an application before the Court of the concerned Magistrate praying for the second sample to be sent for reanalysis which was, however, rejected vide order dated 28.11.1995 (copy Annexure P3) on the ground that since the main complaint has not been presented in the Court, application under Section 24(4) of the Insecticide Act, 1968 to send second sample for reanalysis cannot proceed. The impugned complaint was filed on 16.4.1996. The learned Magistrate passed an order of summoning on 24.5.1996 and by that time, the shelf life of the said insecticide had already expired.

The contention of the learned counsel for the petitioners is twofold. it has been submitted in the first place that the sample in question was taken from the original packing. It has been substantially shown by making a reference of column No. vii of the impugned complaint (copy Annexure P1) where it is categorically mentioned that the packing was original packing from which the sample was drawn. Even in the impugned complaint, reference was made to the sample taken from the original packing. In para 4 of the impugned complaint, it was mentioned inter alia :

"..... I took three original packs of one litre each with batch No. 44 dated May 94 and expiry date April 96 manufactured by M/s Hindustan Pulverising Mills, 209210 Anupam Bhawan, Azadpur Commercial Complex, Azadpur, Delhi 110033...."

It has been contended that since the sample was taken from the original packing, the petitioners could not know about the percentage of the active ingredients of the insecticide kept in the original packing which has been supplied by the manufacturers. It has further been contended that there are no averments made in the impugned complaint that the petitioners were in any way responsible for the deficiency of active ingredient percentage of the insecticide in question, as the same was purchased from a duly licensed manufacturer.

The second point raised by Sh. Chopra is that the petitioners had approached the Court of the concerned Magistrate for having the second sample of insecticide reanalysed by the Central Insecticide Laboratory but his prayer was declined by the Court and by the time, the summoning order was passed, the shelf life of the said insecticide had already expired and this has deprived the petitioners of their valuable right of having a second opinion of the second sample from the Central Insecticide Laboratory.

The learned State counsel, on the other hand, contended that all these pleas which, the petitioners are seeking in this petition, can be taken before the Court of the competent Magistrate while showing that the charge in fact was groundless and they can claim an order of discharge from the concerned trial court. In this context, it may be mentioned that the Hon''ble Supreme Court in the case of M/s Pepsi Foods Ltd. v. Sub Judicial Magistrate & Others, 1997(4) RCR(Criminal) 761 held in paras 27 and 28 under :

"No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction, the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appeal before the Court and move an application under Section 245(2) of the Code and that the Magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding what there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No. 3. The preliminary evidence on which the Ist respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the (sic) exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in the Hamdard Dawakhana (Wakf), Delhi & Another v. The Union of India & Others, AIR 1965 SC 1167 : 1965(2) SCR 192, an argument was raised that the Fruit JUDGMENT was invalid because its provision indicated that it was an JUDGMENT which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit JUDGMENT was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.

It is no comfortable thought for the appellants to be told that they could appear before the Court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it."

It is thus beyond the pale of controversy that the High Court has to consider the matter of quashing and the petitioners cannot be told to raise the controversy before the Court of competent Magistrate. The matter of quashing should be examined by this Court on the basis of the submissions and materials placed on record.

Sh. Chopra counsel for the petitioners has referred to a judgment of this Court in Crl. M. No. 26850/M/97 and contendel that the facts of the case are squarely covered by the decision rendered in the said case. After going through the judgment dated 2.4.1998 of this Court wherein these points have been specifically considered and it was found that the complaint and the proceedings were liable to be quashed, this case also deserves to be decided on the same lines as being a covered matter.

In view of the foregoing discussion, this petition has been considered on merits and is allowed. The impugned complaint, order of summoning and consequential proceedings arising out of the same are hereby quashed qua the petitioners.