Ram Avtar Garg and another vs State of Punjab

MANISHA BATRA, J. (Oral)

The present petition has been filed under Section 482 Cr.P.C. seeking quashing of impugned Complaint bearing No.304 dated 06.09.2019, titled State v. M/s Garg Farm Service and others, filed under Sections 3(k)(i), 17, 18, 29 and 33 of the Insecticides Act, 1968 (for short ‘the Act’) read with Rule 27(5) of the Insecticides Rules, 1971, pending before the Court of learned Sub Divisional Judicial Magistrate, Talwandi Sabo, District Bathinda, along with the summoning order dated 06.09.2019 and all consequential proceedings qua the petitioners.

Brief facts of the case relevant for the purpose of disposal of this petition are that the impugned complaint was filed on the allegations that the complainant, who is a notified Insecticide Inspector, inspected the premises of M/s Garg Farm Service, Raman Mandi, District Bathinda, on 03.07.2018. During inspection, 2400 kgs of insecticide Fipronil 0.3% GR, Batch No. MCPF1807, manufactured by M/s Modesto Crop Protection Pvt. Ltd., Karnal, was found in stock. A sample was drawn in the presence of the proprietor of the dealer firm and a representative of the Agriculture Department. Three test portions were prepared at the spot in accordance with the prescribed procedure. One sealed portion was handed over to the dealer, while the remaining portions were retained in official custody. The record further shows that the complainant deposited the remaining samples with the Chief Agriculture Officer on 04.07.2018 and one sealed sample was thereafter sent to the Insecticide Testing Laboratory, Amritsar, on 05.07.2018. The sample was deposited in the laboratory on the same day.

As per the further allegations, the report of the State Insecticide Testing Laboratory, Amritsar, dated 17.07.2018, found the active ingredient of Fipronil to be 0.02% instead of the required 0.3% and declared the sample misbranded. On the request of the dealer, the reference sample was thereafter re-tested by the Central Insecticides Laboratory, Faridabad. The re-analysis also found the sample to be misbranded, with the active ingredient found to be 0.17% instead of 0.3%, vide report dated 26.11.2018. Thereafter, notices were issued to the concerned dealer as well as the officials of the manufacturing and marketing company. The manufacturing company submitted its reply and acknowledged having supplied the insecticide to the dealer. The competent authority thereafter granted written consent/sanction under Section 31(1) of the Insecticides Act for launching prosecution. The complaint was accordingly filed against the dealer, the manufacturing company and its concerned officials, including the present petitioners. In the complaint, petitioner No.1-Ram Avtar Garg is described as the Director of the manufacturing and marketing company and petitioner No.2-Lavish Kansal as its Godown Incharge.

It is argued by learned counsel for the petitioners that the impugned complaint as well as the summoning order are not sustainable in the eyes of law. It is further submitted that petitioner No.1 is merely a Director and petitioner No.2 is the Godown Incharge of the manufacturing company and neither of them was responsible for quality control of the insecticides. It is further argued that the company had already nominated Surinder Singh, its Manager/Quality Control Officer, as the responsible person under Section 33 of the Insecticides Act and he had also been arrayed as an accused in the complaint. Once a responsible person had been nominated, the petitioners, who were not concerned with quality control, could not be prosecuted for the same alleged offence.

Learned counsel for the petitioners has further argued that there was no material to show that the petitioners were in charge of and responsible for the conduct of the business of the company at the relevant time. It was argued that their prosecution was, therefore, not covered by Section 33 of the Act. Learned counsel also argued that the sample was drawn on 03.07.2018 but was sent to the State Insecticide Testing Laboratory only on 05.07.2018, i.e. after two days, and this amounted to non-compliance with the mandatory provisions of the Act. The petitioners were residing outside the territorial jurisdiction of the learned Magistrate and, therefore, the learned Magistrate was required to follow the procedure under Section 202 Cr.P.C. before issuing process. It was argued that no such inquiry or investigation was conducted. Learned counsel also argued that the summoning order was a non-speaking order and did not reflect application of mind. On these grounds, learned counsel for the petitioners has prayed that the complaint, summoning order and all consequential proceedings qua the petitioners deserve to be quashed and the petition deserves to be allowed.

Reply has been filed on behalf of the respondent-State. On the strength of the same, learned State counsel has opposed the petition and has argued that the complaint contains specific allegations against the petitioners and their roles are clearly stated therein. Section 33 of the Act does not provide that only the person nominated as the responsible person can be prosecuted. A person who was in charge of and responsible for the conduct of the business of the company, as well as a Director or other officer whose consent, connivance or neglect is attributable to the commission of the offence, can also be proceeded against. It is further argued that both the petitioners had themselves submitted affidavits before the licensing authority showing their respective positions and responsibilities in the company. The mere fact that Surinder Singh was also nominated as the responsible person would not absolve the petitioners of their own criminal liability, if otherwise made out from the material on record. With regard to the sample, learned State counsel argued that the sample was properly sealed and remained in official custody. It was handed over to the Chief Agriculture Officer on 04.07.2018 and was thereafter sent to the laboratory on 05.07.2018. The sample was found misbranded not only by the State Laboratory but also by the Central Insecticides Laboratory on re-analysis. It is also argued that the pleas raised by the petitioners involve disputed questions of fact which can be examined by the learned trial Court after evidence is led. No case has been made out for quashing the impugned complaint. Hence, it is urged that the petition is liable to be dismissed.

This Court has heard the rival submissions of learned counsel for the parties.

The first submission of learned counsel for the petitioners is that petitioner No.1 is only a Director and petitioner No.2 is only the Godown Incharge and that the company had already nominated Surinder Singh as the responsible person under Section 33 of the Act. This submission cannot be accepted at this stage. The complaint does not proceed merely on the basis of the designation of the petitioners. There are specific allegations against petitioner No.1 that he was the Director of the manufacturing and marketing company and had submitted an affidavit before the licensing authority for compliance with Section 33 of the Act. Similar specific allegations have been made against petitioner No.2, who is described as the authorised Godown Incharge and who had also submitted an affidavit before the licensing authority. The complaint alleges that they failed to discharge their duties in relation to the distribution of the misbranded insecticide. Section 33(2) of the Act specifically provides that 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. Whether the petitioners were in fact in charge of and responsible for the conduct of the business, whether there was any negligence on their part and whether the requirements of Section 33 are ultimately satisfied are matters which would require consideration of evidence. At this stage, this Court cannot undertake an appreciation of such evidence in proceedings under Section 482 Cr.P.C. The fact that Surinder Singh was also nominated as the responsible person does not put an end to the prosecution against the petitioners. The complaint specifically names Surinder Singh as the person responsible for quality control and conduct of business but it also contains separate and specific allegations against petitioner No.1 and petitioner No.2. The prosecution of one person does not confer immunity upon another person against whom there are specific allegations in the complaint.

The argument regarding the delay of two days in sending the sample also does not make out a ground for quashing the proceedings. The record shows that the sample was drawn on 03.07.2018, the remaining sealed portions were deposited with the Chief Agriculture Officer on 04.07.2018, and one sealed portion was sent to the State Laboratory on 05.07.2018. The complaint specifically records that the samples remained in safe custody and the sample sent to the laboratory was duly sealed. The laboratory record also records that the seal was intact and tallied with the specimen seal. Thus, merely because the sample reached the laboratory two days after it was drawn cannot, on the material presently available, be treated as sufficient to hold that the prosecution is legally unsustainable. The effect, if any, of the time taken in transmission can always be examined by the learned trial Court on the basis of the evidence led before it. There is also material which cannot be ignored at this stage. The sample was found to be misbranded by the State Laboratory and, thereafter, the reference sample was re-tested by the Central Insecticides Laboratory, Faridabad, where also it was found not to conform to the prescribed specification. The Central Laboratory found the active ingredient to be 0.17% against the required 0.3%.

As regards the objection regarding non-compliance with Section 202 Cr.P.C., the same also does not merit acceptance. The complaint in the present case has been instituted by the Insecticide Inspector, a public servant, in discharge of his official duties. Hence, no inquiry under Section 202 Cr.P.C. was required to be conducted. The issue is squarely covered by the recent judgment of the Hon’ble Supreme Court rendered in The State of Kerala & another v. M/s Panacea Biotec Ltd. & Anr., 2026 INSC 200, wherein, while considering an identical objection regarding non-compliance of Section 202 Cr.P.C. in a prosecution instituted by a statutory Inspector, it has been held that Section 202 Cr.P.C. has to be construed harmoniously with Section 200 Cr.P.C. and that where the complaint is made in writing by a public servant acting in discharge of his official duties, the Magistrate is not required to examine the complainant and the witnesses on oath. The Court noticed that the legislature has placed such a public servant on a different footing from a complainant in a private capacity and, accordingly, answered the issue in favour of the prosecution. In view of the aforesaid authoritative pronouncement, the mere fact that the petitioners were residing beyond the territorial jurisdiction of the learned Magistrate and that no separate inquiry under Section 202 Cr.P.C. was conducted, cannot, in the facts of the present case, be made a ground to quash the complaint or the summoning order. So far as the summoning order is concerned, though the order dated 06.09.2019 is brief and records that the complaint was presented, checked and registered and that notice be issued to the accused, the same cannot be examined in isolation from the complaint and the material accompanying it. The complaint had already been placed before the learned Magistrate and contained specific allegations against the petitioners. The mere absence of a detailed discussion of the evidence in the summoning order is not alone sufficient to quash the proceedings.

It is also relevant that the competent authority had considered the material and granted written sanction under Section 31(1) of the Insecticides Act for prosecution of the concerned persons, including the present petitioners. At this stage, this Court is not required to determine whether the petitioners would ultimately be found guilty. The limited question is whether, on a reading of the complaint and the material placed on record, the proceedings against them are so baseless that their continuation would amount to abuse of the process of law. In the present case, that test is not satisfied. The complaint contains specific allegations, the insecticide sample was found to be misbranded on two occasions, the manufacturing company is admittedly connected with the product in question, the petitioners' respective roles have been mentioned in the complaint, and the competent authority had granted sanction for prosecution. The defence sought to be raised by the petitioners can be properly examined by the learned Trial Court after the parties lead their evidence.

Keeping in view the discussion made above, this Court is of the considered opinion that no ground is made out for exercise of the inherent jurisdiction of this Court under Section 482 Cr.P.C. The present petition is, accordingly, dismissed.

It is, however, clarified that nothing stated herein shall be taken as an expression of opinion on the merits of the case or the ultimate guilt or innocence of the petitioners. The learned trial Court shall decide the case on the basis of the evidence led before it, uninfluenced by any observation made in the present order.