M/s Mangli and Mangli Technocrats and another vs State of Punjab through Insecticide Inspector

MANISHA BATRA, J. (Oral)

The present petition has been filed under Section 482 Cr.P.C. seeking quashing of Complaint No. COMA/7611/2020 dated 03.09.2020, titled as State v. M/s Mangli and Mangli Technocrats and others, filed under Sections 3(k)(i), 17, 18, 29 and 33 of the Insecticides Act, 1968 (for short 'the Act, 1968') read with Rule 27(5) of the Insecticides Rules, 1971 as well as for quashing of the summoning order dated 23.12.2020, passed by the Court of learned Chief Judicial Magistrate, Ludhiana and all consequential proceedings arising therefrom.

Brief facts of the case relevant for the purpose of disposal of the present petition are that the aforementioned complaint has been filed by the respondent-State against seven persons/firms, who are either dealer or manufacturer company and its responsible persons. The present petitioners are accused Nos. 1 and 2 in the impugned complaint, who are dealer and its proprietor.

As per the allegations in the complaint, on 19.06.2019, the complainant, while posted as Agriculture Development Officer-cum-Notified Insecticide Inspector, Sahnewal Block, District Ludhiana, inspected the premises of M/s Mangli and Mangli Technocrats, a licensed insecticide dealer situated at Grain Market, Sahnewal, Ludhiana. At the time of inspection, Jaswant Singh, Sales Assistant of the dealer firm, was present and was stated to be holding a Special Power of Attorney executed by petitioner No.2, Raminder Singh, proprietor of the dealer firm. During inspection, thirty sealed one litre containers of Chlorpyrifos 50% EC (MEGABAN SUPER-TC), Batch No.18/P/06, manufactured by M/s Meghmani Organics Ltd. and supplied through its Ludhiana godown, were found stocked for sale. One sealed container was selected for sampling. After following the prescribed procedure under Section 22 of the Act, 1968, three portions of the sample were prepared, sealed and coded as TDS-01. One portion was handed over to the representative of the dealer firm, while the remaining samples were retained for analysis.

The sample was analysed by the State Insecticide Testing Laboratory, Bathinda, which reported the active ingredient of Chlorpyrifos to be 45.93% instead of the declared 50% EC and declared the sample to be "misbranded" within the meaning of Section 3(k)(i) of the Act. Thereafter, show-cause notices along with the analysis report were issued to the dealer as well as the manufacturing company. On the request of the dealer and the manufacturer, the referee sample was sent to the Central Insecticides Laboratory, Faridabad, which, vide report dated 27.09.2019, found the active ingredient to be 61.13%, thereby again declaring the sample to be misbranded. After obtaining the requisite sanction under Section 31(1) of the Insecticides Act from the Joint Director, Agriculture (Plant Protection), Punjab, the complainant instituted the impugned complaint against the petitioners as well as the other accused for commission of aforementioned offences alleging that the petitioners, being the dealer firm and its proprietor, had stocked and sold the misbranded insecticide and were, therefore, liable along with the manufacturer.

On presentation of the complaint and after considering the preliminary evidence led by the complainant, the learned Magistrate, vide impugned order dated 23.12.2020, had summoned the petitioners as well as other accused to face trial in the impugned complaint for commission of offences alleged therein. Aggrieved from the same, the petitioners have filed the present petition.

It is argued by learned counsel for the petitioners that petitioner No.1 is merely a licensed dealer, whereas petitioner No.2, who is the proprietor of petitioner No. 1-firm, has been residing in Canada for several years. It is argued that petitioner No.2 had, by way of an affidavit-cum-Special Power of Attorney dated 22.11.2017, authorised Jaswant Singh to independently manage the affairs of the firm, including purchase and sale of insecticides. Consequently, petitioner No.2 had no role in the day-to-day functioning of the business or in the transaction in question. It is further argued that the impugned complaint itself shows that the sample was drawn from a sealed, original container supplied by the manufacturer. Since the petitioners were only dealers selling the product in its original sealed condition, they are entitled to the statutory protection under Section 30(3) of the Act, 1968. It is submitted that there is no allegation that the sealed container had been tampered with or that the petitioners had improperly stored the insecticide. Learned counsel further argues that the complaint is liable to be quashed as the mandatory procedure regarding drawing, preparation, storage and handling of the sample, as prescribed under the Act, 1968 and the Rules, has not been properly followed. With these broad submissions, it is urged that the petition deserves to be allowed and the complaint along with all the subsequent proceedings including summoning order dated 23.12.2020 is liable to be quashed. To buttress his arguments, learned counsel for the petitioners has relied upon the authorities cited as Lochen Kheti Sewa Centre vs. State of Punjab, 2008(2) RCR (Criminal) 22 and P. D. Garg and others vs. State of Punjab, 2014 (2) RCR 945.

Reply has been filed by the respondent-State. Learned State counsel has argued that the complaint has been filed strictly in accordance with the provisions of the Insecticides Act after following the prescribed procedure. It is submitted that the sample was duly drawn under Section 22 of the Act, 1968, analysed by the State Laboratory and thereafter re-analysed by the Central Insecticides Laboratory at the instance of the dealer and manufacturer. Both laboratories found the insecticide to be misbranded. Necessary sanction under Section 31(1) of the Act, 1968 was thereafter obtained before launching prosecution. It is further submitted that petitioner No.2 continued to be the proprietor and responsible person of the dealer firm. Merely executing a Special Power of Attorney in favour of Jaswant Singh did not absolve him of his statutory responsibilities, particularly when no change in the licence or intimation to the licensing authority was ever made in accordance with the Insecticides Rules. At this preliminary stage, no ground is made out for exercise of the inherent jurisdiction of this Court under Section 482 Cr.P.C. Hence, it is urged that the petition is liable to be dismissed.

This Court has heard the rival submissions of the parties.

Before proceeding further, it would be relevant to have a look on the provisions of Section 30 of the Act, 1968, which are reproduced below:

A bare perusal of sub-section (3) of the aforementioned provision clearly shows that a person not being an importer or a manufacturer of an insecticide or his agent for the distribution of the same shall not be liable for a contravention of any provision of this Act, if it is found that he had acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer and could not have ascertained that the insecticide in any way contravened any provision of the Act, 1968 and the insecticide in question was properly stored and remained in the same state as when it was acquired by such person. While interpreting the aforesaid provisions of the Act, 1968 and by taking into account the fact that the accused persons were not the manufacturer and marketing company and the samples were drawn from a sealed packet, the similar complaints had been quashed by the Courts qua the dealers/firms and its proprietors, from whose premises, the misbranded insecticide was taken into possession. Reference in this regard can be made to the judgment rendered by this Court in M/s Preet Kheti Sewa Center and another vs. State of Punjab (CRM-M-21176-2019 decided on 18.03.2020), wherein it was observed as under :

Reference can further be made to M/s Sandhu Kheti Store Sewa Centre and others vs. State of Punjab, 2013(4) RCR (Criminal) 893, wherein this Court, while quashing a similar complaint qua the dealers, has made the following observations:

Reference can also be had to the observations made by this Court in Surinder Kumar vs. State of Punjab, 2011(1) RCR (Criminal) 211, wherein this Court has concluded that the petitioner therein who was merely selling the insecticide had no occasion to tamper with the contents of the container/insecticide and it would be an abuse of process of law and the petitioner being only involved in sale of insecticide cannot be held responsible for the contents of the misbranded insecticide. Similar view was expressed by this Court in Naresh Kumar vs. State of Punjab, 2011(2) RCR (Criminal) 202, M/s Garg Agro Chemicals and another vs.State of Punjab, 2011(2) RCR (Criminal) 395, Ramesh Kumar and others vs. State of Punjab, 2010 (2) RCR (Criminal) 273 and M/s Sanjeev Sales Corporation and another vs. State of Punjab, 2010(1) RCR (Crimianl) 33 and M/s Bajwa Seed Store and others vs. State of Punjab, 2009(1) RCR (Criminal) 378.

Adverting to the present case, it is admitted position that the petitioners are neither the manufacturer of the insecticide in question nor its marketing company, but are merely a licensed dealer and its proprietor. It is also not in dispute that the sample was drawn by the Insecticide Inspector from a sealed, original container of Chlorpyrifos 50% EC supplied by the manufacturing company. There is not even a whisper in the impugned complaint that the sealed container had been tampered with or that the insecticide had been improperly stored by the petitioners, or that it had undergone any change in its condition after it was acquired from the licensed manufacturer. On the contrary, the allegations in the complaint themselves indicate that the sample was lifted from the same sealed condition in which it had been stocked by the dealer.

The protection envisaged under Section 30(3) of the Act, 1968 is specifically intended to safeguard a dealer who has acquired the insecticide from a duly licensed source, had no knowledge nor could have discovered with reasonable diligence that the product contravened the provisions of the Act and had stored it in the same condition in which it was acquired. The respondent has failed to point out any allegation in the complaint which would prima facie disentitle the petitioners from claiming such statutory protection. Merely because the sample was ultimately found to be misbranded would not, by itself, fasten criminal liability upon a dealer who had no role in the manufacture or composition of the product. This Court also finds that the controversy raised in the present case is no longer res integra. In the authorities cited above, it has consistently been held that where the sample is lifted from a sealed original container and there is no allegation of improper storage or tampering by the dealer, continuation of criminal proceedings against the dealer would amount to an abuse of the process of law. The facts of the present case are squarely covered by the aforesaid principles. In these circumstances, permitting the criminal prosecution to continue against the petitioners, despite the absence of any allegation suggesting their involvement in the manufacture of the insecticide or any act attributable to them which could take the case outside the ambit of Section 30(3) of the Act, 1968, would serve no useful purpose and would result in unnecessary harassment.

Accordingly, the present petition is allowed and the impugned complaint bearing No. COMA/7611/2020 dated 03.09.2020, the summoning order dated 23.12.2020 and all consequential proceedings arising therefrom are hereby quashed qua the present petitioners only.