Vinod Goyal vs State of Punjab

P.K. Jain, J.

This petition has been filed under section 401 of the Code of Criminal Procedure (hereinafter referred to as the Code) against the order dated 7.10.1995 passed by the Judicial Magistrate, Mansa whereby the application of the petitioner for his discharge in the complaint case No. 9 of 1.6.1991, has been dismissed.

The brief facts necessary for the disposal of this petition are that the Insecticide Inspector visited the shop of M/s Kalia Trading Company, Baretta (Bhatinda), a licence holder for dealing with pesticides/insecticides, and purchased a sample of Mono40 Monocrotophos 36% SL, the manufacturing date of which was May, 1989 and expiry dated April, 1990. The sample was found to be misbranded by the Central Insecticides Laboratory, Faridabad. A show cause notice alongwith copy of the report of the Analyst was sent to the aforesaid dealer as well as M/s Agro Chemicals, Jaipur, the manufacturer. After obtaining necessary sanction a complaint under sections 3k, 17, 18, 29 and 33 of the Insecticides Act, 1968 (hereinafter referred to as the ''Act'') read with Rule 27(5) of the insecticides Rules, 1971 was filed in the court of Sub Divisional Judicial Magistrate, Mansa against Madan Lal, the proprietor of M/s Kalia Trading Company, the dealer and M/s Agro Chemicals Jaipur, the manufacturer through Shri Vinod Kumar Goyal the Managing Director.

On appearance of the accused persons, the particulars of the offence of which they were accused were stated to them as required by section 251 of the Code. The accused persons pleaded not guilty and the case was fixed for prosecution evidence.

At this stage an application was moved by Shri Vinod Kumar Goyal, Managing Director of M/s Agro Chemicals inter alia on the ground that there was no legal and valid sanction for launching prosecution and as such he be discharged of the offences. However, this application did not find favour with the trial Magistrate and the same was dismissed by order dated 7.10.1995. Hence this revision.

I have heard the learned counsel for the parties and have gone through the record.

Shri S.R. Verma, Advocate, the learned counsel for the petitioner has argued that Vinod Kumar Goyal the petitioner is the Managing Director of M/s Agro Chemicals and is not arrayed as an accused in the complaint nor any sanction to prosecute Vinod Kumar Goyal had been obtained and as such the notice regarding the substance of the offence given to him is liable to be quashed.

On the other hand Shri Ramanjit Singh, learned Assistant Advocate General has argued that the prosecution has been properly launched and Shri Vinod Kumar Goyal had been representing M/s Agro Chemicals and that the notice given to him regarding the substance of the offence is quite legal and valid.

Section 33 of the Act relates to offences by companies. It reads as under :

"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 subsection 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 subsection (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."

The section appears to be plain enough. If the offence under the Act has been committed by the company, the persons who may be held guilty and punished are: (1) the Company itself, (2) every person who at the time, the offence was committed, was incharge of, and was responsible to, the company for the conduct of the business of the company whom for short we may describe as the person in charge of the company, and (3) any director, manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom for short we may describe as an officer of the company. Any one or more or all of them may be prosecuted and punished. The company alone may be prosecuted. The person in charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted.

Section 31 of the Act relates to the taking of cognizance and trial of offences under the Act. Subsection (1) thereof provides as under:

"No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorised in this behalf by the State Government."

This provision mandates that no prosecution for an offence under the Act can be instituted except by or with the written consent of the State Government or a person authorised in this behalf by the State Government. In other words, the sanction of the State Government or authorised officer is sine qua non for launching prosecution against any individual or Corporation. Reading this provision alongwith Section 33 of the Act, reproduced above, it becomes clear that if prosecution is to be launched against the company or the person in charge of the company or an officer of the company, sanction to prosecute is the condition precedent for each of them.

In the present case, a bare perusal of the complaint Annexure P.1 reveals that accused No. 1 Shri Madan Lal is proprietor of M/s Kalia Trading Company (the dealer) and accused No.2 is M/s Agro Chemicals the manufacturing company. Shri Vinod Kumar Goyal, the petitioner herein is not arrayed as an accused in the said complaint. Further the sanction (Annexure P.2) for launching prosecution has been accorded against M/s Kalia Trading Company and M/s Agro Chemicals. No sanction under section 31 of the Act has been accorded to prosecute Vinod Kumar Goyal, the Managing Director of the Manufacturing company. Therefore, the necessary conclusion is that Vinod Kumar Goyal, the Managing Director, as such, cannot be prosecuted of the basis of the present complaint. The notice regarding the substance of the offence under section 251 of the Code has been given to Shri Vinod Kumar Goyal the petitioner instead of the manufacturing company which is accused No. 2 in the complaint. It is correct that company is to act through some body being a juridical person. Therefore, a notice under section 251 of the Code ought to have been given to the accused company through Vinod Kumar Goyal, the Managing Director and not to Shri Vinod Kumar Goyal the Managing Director as such.

For the reasons mentioned above, this petition is allowed. The notice under section 251 of the Code given to Shri Vinod Kumar Goyal, the petitioner herein, is hereby quashed. Trial Magistrate is directed to give an appropriate notice under section 251 of the Code to accused No. 2 and then to proceed with the complaint in accordance with the law.

A copy of this order be sent to the Trial Magistrate, immediately.