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Judgment
ORAL ORDER
Heard Sri. Rakshit Ravindra, learned counsel for petitioner and Sri. Praveena Y.Devareddiyavara, learned High Court Government Pleader for the respondent-State.
This petition is filed by the petitioner/accused No.3 under Section 482 of CrPC (Section 528 of BNSS, 2023) seeking to quash the entire proceedings in C.C.No.681/2019 pending on the file of learned Principal Civil Judge and JMFC, Bailhongal, registered for the offence under Section 29(1)(a) of Insecide Act, 1968.
The brief facts of the prosecution case in nutshell are as under:
Accused No.1 is the Proprietor of M/s. Soubhagya Lakshmi Trading Company (‘Firm’ for short). He is in charge and responsible for conduct of business of the firm and the said firm is carrying on the business of retailer in insecticide and is holding a retailer license. The misbranded insecticides in question were sold by accused No.1. Accused No.2 is the Proprietor of M/s. Halapanavar Agro Chemicals Narvekar Galli, Belagavi and it is the distributor/supplier of misbranded insecticide in question to accused No.1. Accused No.3/ petitioner herein is the compliance officer of Insecticide Manufacturing Company i.e., Bayer Crop Science Limited, Hyderabad. On 17.05.2018 at 11:00 a.m., the complainant had visited the shop of accused No.1, inspected the articles and collected samples of insecticide, namely SOLOMON under Mahazar. Further, as per the report of Insecticide Analyst, First Coding Officer-cum-Deputy Director of Agriculture State Pesticide Testing Laboratory, Dharwad and later came to know that the sample was found to misbranded under the provisions of ISA. The copy of the report of analyst was forwarded to the accused persons. Accused No.1 and 3 had requested the defacto complainant for re-analysis of the sample and thereafter, re-analysis was done at Additional Plant Protection Advisor at Faridabad, Haryana and once again the sample was concluded to be misbranded. Accordingly, the re-analysis report was sent to accused Nos.1, 2 and 3 along with notice on 04.07.2018. Though accused No.1 had replied and accused No.2 and 3 did not reply to the notice, the defacto complainant lodged the complaint.
Learned counsel for the petitioner, reiterating the grounds urged in the petition, contended that the prosecution has failed to comply the required statutory provisions and therefore, continuation of proceedings before the Trial Court is nothing but abuse of process of law and sought for quashing of pending proceedings before the learned Magistrate. In support of his arguments, learned counsel for petitioner relied upon the judgments passed by the Coordinate Bench of this Court in Criminal Petition No.100487/2023 and Criminal Petition No.101933/2022.
Learned HCGP, however, contended that it is a matter of trial and non-impleading the company who manufacture the pesticides does not vitiate the launched criminal prosecution and that itself would not be considered as a factor which favour the petitioner in the trial and sought for dismissal of the petition.
This Court perused the material on record meticulously.
Admittedly, the prosecution did not comply the statutory requirement in arraigning the company which manufactured the pesticides. In this regard, Section 10 of Essential Commodities Act, 1968 reads as under:
“10. Offences by companies:-
(1)If the person contravening an order made under section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
(2)Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purposes of this section,— (a) “company’’ means any body corporate, and includes a firm or other association of individuals; and (b) “director’’ in relation to a firm means a partner in the firm."
Learned counsel for the petitioner submitted that provisions of Section 33 of Insecticide Act, is akin to Section 10 of Essential Commodities Act and therefore, in respect of an offence said to have been committed by a company, in the absence of company being arraigned as a party accused, proceedings initiated by the prosecution only against in its individual capacity is impermissible.
In order to appreciate the same, it is necessary to call out Section 33 of Insecticide Act, which reads as under:
“ 33. Offences by companies.— (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, or was responsible to the company for the conduct of the business of, the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2)Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.—For the purpose of this section:—
(a)“company” means any body corporate and includes a firm or other association of individuals; and
(b)“director”, in relation to a firm, means a partner in the firm.”
On perusal of the same, there is sufficient force in the arguments put forth on behalf of the petitioner.
This Court in the case of Mallikarjun S/o. Girimallappa Shegunashi Vs. The State of Karnataka passed in Criminal Petition No.101933/2022 dated 20.07.2022 has clearly held that such prosecution cannot be proceeded further in the absence of company being arraigned as additional accused.
Accordingly, the criminal prosecution with regard to the petitioner/accused herein cannot be allowed to be continued as it results in abuse of process of law. Hence, the following order is passed:
ORDER
Criminal petition is allowed.
The entire proceedings in C.C.No.681/2019 pending on the file of learned Principal Civil Judge and JMFC, Bailhongal insofar as the petitioner/accused No.3 is concerned are hereby quashed. However, the defacto complainant is at liberty to cure the defects by impleading the company as party to the petition subject to the point of limitation.
Pending IAs., if any, stands disposed of.