M/s. Jai Shree Agro Inds. Ltd. and others vs State of Haryana

T.P.S. Mann, J.—The petitioners are seeking quashing of complaint (Annexure P-3) instituted u/s 29 of the Insecticides Act, 1968 (hereinafter referred to as `the Act'') as well as of all the proceedings taken in consequence thereof.

On 21.6.2001, Insecticide Inspector went to the premises of M/s. Kissan Pesticides Kender, Indri (Karnal) and drew a sample of Butachlor 50% EC bearing batch No. 16/316, manufacturing dated 2/2001 and expiry date 1/2003. The said sample of weedicide was packed and sealed according to the provisions of the Act. One portion of sample was handed over to M/s. Kissan Pesticides Kender and another portion was sent to Senior Analyst, Quality Control Laboratory (Insecticides), Karnal for test/analysis as per Rule 34 of Insecticides Rules, 1971, while the third portion of sample kept for producing before the trial Court. After analysis of the sample sent to it, the Senior Analyst found that the active ingredients in the sample were 36.31% instead of 50% with a variation of 13.69%. Accordingly, it was found to be a case of misbranding. Copy of the analysis report was sent along with show cause notice to the firm M/s. Kissan Pesticides Kender and the manufacturer i.e. M/s. Jai Shree Agro Industries Limited. Reply of the dealer was received on 16.8.2001, while from the manufacturer on 14.8.2001. After obtaining necessary consent from the Director of Agriculture, Haryana complaint was filed in the Court on 24.4.2002. After finding that there were sufficient grounds to proceed against the accused, Chief Judicial Magistrate, Karnal vide order dated 24.4.2002 summoned the dealer and the manufacturer for offence u/s 29 of the Act.

Learned counsel for the petitioners has taken the following two grounds for seeking quashing of the complaint and setting aside of the summoning order :-

(i) No show cause notice was issued to Nand Kishore Aggarwal petitioner, Director of the manufacturing company nor Analyst''s report supplied to him. There was no mention anywhere in the complaint that Nand Kishore Aggarwal was responsible being incharge and responsible for the work and conduct of the business of the company, whereas it was apparent from the complaint that it was Prithvi Raj, who was the responsible person for the business of the manufacturing company.

(ii) The petitioners were served in the complaint after the expiry of the shelf life of the sample and thus, valuable right available to them under sub-sections (3) and (4) of the Section 24 of the Act in getting the second sample analysed for adducing evidence in contravention of the report of Insecticides Analyst was lost.

It has not been denied by the petitioners that the weedicide was manufactured by them. It has also not been denied that Nand Kishore Aggarwal was the Director of the manufacturing concern at the relevant time. Further that being a Director, Nand Kishore Aggarwal was at the helm of affairs of the manufacturing concern and thus, incharge and responsible for the work and conduct of the company. By nominating Prithvi Raj, the Director of the manufacturing company could not avoid liability under the Act. Prithvi Raj only represented the company but was not responsible for the work and conduct of the business of the company. He was to appear for the manufacturing company and watch its represent as the said concern could not appear before the Court by itself and somebody had to be there to represent it in the Court of law.

Section 305 Cr.P.C. deals with the procedure where a corporation is an accused. Corporation includes an incorporated company as well. Sub-section (2) thereof allows the company to appoint a representative for the purposes of the enquiry or trial when such company is the accused or one of the accused persons. As per sub-section (3), the presence of the representatives of the company permits the Court to hold that any requirement of the Code that anything shall be done in the presence of the accused/company shall be taken to be fulfilled. The presence of Prithvi Raj, as the nominee of the company, was only for the purposes of representing the company and watching its interest u/s 305 Cr.P.C. and not as the one who was to be fastened with the liability for the work and conduct of the business of the company. It was the petitioner, who being the Director of the company, was incharge and responsible for the work and conduct of the business. He has not taken any stand that he was not associating himself with the work and conduct of the business. In view of the above, Nand Kishore Aggarwal cannot escape the liability.

Coming to the second point of attack, it may be noted that when notice was initially received by the manufacturing company on 14.8.2001, which was very much before the expiry of the shelf life of the weedicide, a request was made by it that the counter sample be sent for analysis so as to permit the manufacturing company to adduce evidence in contravention (controversion ?) of the report of Insecticide Analyst.

Law does not permit the sending of counter sample for analysis. Law permitted only sending of second sample obtained at the time when the Insecticide Inspector visited the premises of the dealer. The petitioners never applied for sending the second sample for analysis but only requested that the counter sample be sent.

An argument was raised that when request was made for sending the counter sample for analysis what the manufacturer meant was that the second sample be sent. To my mind, the manufacturer is trying to indulge in trickery/jugglery of words. Counter sample and second sample are two different things. Counter sample is the one which is kept by the manufacturing concern itself in its office/company show-room. Counter sample would not imply the second sample which was kept by the insecticide Inspector for producing before the Court. The petitioners never applied for sending the second sample for analysis, although it had ample opportunity to do so before even the expiry of the shelf life of the said second sample.

In view of the above, no case is made out for quashing the complaint in question or the summoning order passed in pursuance thereof. The present petition is, accordingly, dismissed.

However, it is made clear that any expression or opinion given above be not construed as final and the trial Court would be at liberty to record the evidence and thereafter appreciate the same in accordance with law. The petitioners are permitted to take all the pleas available to him at the appropriate stage.