Crl. Rev. No.1833 of 2005(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No.1833 of 2005(O&M) Date of decision:- 14.3.2011 M/S Unikil Pesticides, (P) Ltd. ... Petitioner Versus State of Haryana ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. R.A.Yadav, Advocate, for Mr. R.S.Chahar, Advocate, for the petitioner. Mr. Shekhar Mudgal, DAG, Haryana. Gurdev Singh, J (oral) Budh Ram Bishnoi, complainant, was appointed as Quality Control Inspector in the State of Haryana vide order dated 26.7.1991. The Quality Control Inspectors were notified as Insecticide Inspectors under Section 20 of the Insecticide Act 1968 (hereinafter referred to as 'the Act') vide notification dated 28.3.1986. In the capacity of the Insecticide Inspector, the complainant inspected the premises of M/s Suresh Trading Company, Nathursari Chopta, accused No.1 and drew three samples of Fenvalerate 20% EC manufactured by M/s Unikil Pesticides (P) Ltd petitioner No.1/accused No.3, which were packed and sealed in accordance with the provisions of the Act. One part of the sample was sent to Senior Analyst, Quality Control Laboratory, Karnal, for analysis and one part of the sample was handed over to accused No.1 and the third part of the sample was kept in the office of the complainant. After analysis, it was Crl. Rev. No.1833 of 2005(O&M) -2- reported by the said laboratory that it contained only 8.63% of Fenvalerate against 20% whereas the permissible variation was +-5% and as such the sample was misbranded. One copy each of the test report was supplied to accused No.1 and petitioner No.1, vide letter dated 7.11.1994. Accused No.1 submitted an application in the Court of Chief Judicial Magistrate Sirsa on 12.12.1994 for re-testing of the referee sample and that referee sample was deposited in the Court of Chief Judicial Magistrate, Sirsa and sent to Central Insecticides Laboratory, Faridabad. On testing of that sample, it was conveyed by that laboratory that the same did not conform to the relevant specifications in the active ingredient content requirement and as such it was misbranded. Thus, accused No.1 by selling that misbranded insecticide and petitioner No.1 being the manufacturer of that insecticide violated the provisions of Section 17(1)(a) of the Act and as such committed the offence under Section 29(1) of the Act. Before filing the complaint consent order was passed by Director Agriculture, Haryana, who gave his consent for launching the prosecution against all the accused. As the complaint was filed by public servant in the discharge of his official duties, so accused were summoned without recording any preliminary evidence. On their appearance in the trial Court, the arguments were heard by the Chief Judicial Magistrate on the question of charge. Accused No.1 and Ram Chand accused No.2, who were arrayed as responsible persons of the dealer, were discharged whereas petitioner No.1 and Shashank Bhargav, who was arrayed as accused No.4 being the Managing Director of petitioner No.1 were charged for the offence under Section 29(1) of the Act. They pleaded not guilty to the charge and claimed trial. To prove their guilt, Crl. Rev. No.1833 of 2005(O&M) -3- complainant examined himself as PW2 and Anil Kumar Kaushik PW1. After the evidence was closed by the complainant, accused No.4 was examined and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He was called upon to enter on his defence, but he did not produce any evidence in his defence. After going through the evidence so produced on the record and hearing learned counsel for both the sides, the learned Chief Judicial Magistrate, Sirsa, convicted the petitioners/accused for the offence under Section 29(1) of the Act vide judgment dated 4.5.2001 and sentenced them as under:- Name of the accused Under Section Sentence imposed Fine Indefault M/s Unikil Pesticides Pvt. Ltd., Petitioner No.1/accused No.3 29 of the Insecticides Act, 1968 ---- `.2000/- ------ Mr. Shashank Bhargav, Petitioner No.2/accused No.4 29 of the Insecticides Act, 1968 R.I for one year `.2000/- S.I for two months The petitioners/accused preferred an appeal against that conviction and sentence but the same was dismissed by Additional Sessions Judge, Sirsa, vide judgment dated 20.9.2005. The present revision has been preferred against that conviction and sentence. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioners/accused that petitioner No.2/accused No.4 could not have been Crl. Rev. No.1833 of 2005(O&M) -4- prosecuted in the absence of any averment in the complaint that he was in- charge of or was responsible for the conduct of the business of petitioner No.1/accused No.3-company. Even no evidence was produced to that effect. That itself is a ground for the acquittal of that accused. In support of that submission, he relied upon the judgment of our own High Court Shabbir Itarsi and another Vs. State of Haryana 2005(1) RCR (Criminal) 31. He further submitted that the consent order passed by the Director Agriculture for prosecution of the accused is no order in the eyes of law as it was not a speaking order and it does not reveal that the Director applied his mind to the facts of the case before giving his consent. The accused could not have been prosecuted on the basis of such a consent order. He also submitted that the procedure adopted by the Inspector Insecticide was defective inasmuch as the second part of the sample, which was required to be deposited in the Court immediately after taking of the sample, was never so deposited, which caused prejudice to the accused. That is also a ground for acquittal of the accused. In the last, he has submitted that when the second part of the sample was sent to the Central Insecticide Laboratory, the percentage of the Fenvalerate was found to be 14.3% against the specification of 20% whereas the other laboratory had found Fenvalerate to be 8.63%. There should not have been such a variation in case the samples had been taken at the same time, that itself creats a doubt in the prosecution case. He prayed for acquittal of the accused. On the other hand, it has been submitted by learned State counsel that it is mentioned in the heading of the complaint itself that petitioner No.2/accused No.4 was the Managing Director of petitioner No.1/accused Crl. Rev. No.1833 of 2005(O&M) -5- No.3-company and as such, he was liable to be prosecuted for the acts of commission and ommission committed by that company, even in the absence of any averment in the complaint that he was in-charge of or responsible for the conduct of the business of the company. It is very much clear from the consent order Ex.PD that the competent authority applied its mind to the facts of the present case. It had gone through the records and that fact is mentioned in the order itself. Therefore, the consent order cannot be said to be defective. There was no requirement of the law that one part of the sample was required to be deposited in the Court immediately after taking of the sample. The same was to be deposited in the Court after institution of the proceedings against the accused and the same was duly done and it was the second part of the sample which was sent to Central Insecticide Laboratory. Mere variation in the two reports of two laboratories cannot be made a ground for the acquittal of the accused as that variation may be on account of number of grounds. The fact remains that both the samples were found to be misbranded as those contained Fenvalerate, which was lesser then the ISI specification. There is no ground for acquittal of the accused. No averment was made in the complaint that petitioner No.2/accused No.4 was in-charge or responsible for the conduct of the business of petitioner No.1/accused No.3-company. As per Section 33 of the Act, whenever the offence under the Act has been committed by the company, every person, who at the time whenthe 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 Crl. Rev. No.1833 of 2005(O&M) -6- guilty of the offence and shall be liable to be proceeded against and punished accordingly. No doubt in the heading of the complaint, petitioner No.2/accused No.4 was mentioned as the Managing Director, but that is not the sufficient requirement of law. The complaintant was required to specifically aver in the complaint that he was in-charge of or was responsible to the company for the conduct of its business. Even no evidence was produced by the complainant to that effect. This very question came up for consideration before this Court in Shabbir Itrasi's case (supra). In that case also the Quality Control Officer and Managing Director of the company were arrayed as accused, but there was no averment in the complaint that they were in-charge of or were responsible to the company for the conduct of its business. After taking into consideration various judgments on the point of the Hon'ble Supreme Court, it was held by this Court that in the absence of those averments, it cannot be said that the Quality Control Officer and the Managing Director are liable to be proceeded against and punished. The ratio of that ruling fully applies to the facts of the present case and petitioner No.2/accused No.4 is entitled to acquittal on that ground itself. According to section 31 of the Act, no prosecution for an offence under the Act shall be instituted except by or with the consent of State Government or a person authorised in this behalf by the State Government. According to the complainant, Director Agriculture, State of Haryana, was the duly authorised person and he passed the consent order for the prosecution of the accused. That consent order was proved on the record as Ex.PD. A perusal thereof shows that the Director applied his mind to the Crl. Rev. No.1833 of 2005(O&M) -7- facts of the case. He recorded his satisfaction by incorporating in the order that after careful examination of the report of laboratory, he was satisfied that the accused being dealer and manufacturer of the adulterated/misbranded insecticides were liable to be prosecuted. However, the fact remains that no consent order was passed for the prosecution of petitioner No.2/accused No.4. That also entails the acquittal of that accused. The procedure to be followed by the Insecticide Inspector for taking samples, is contained in Section 22 of the Act. As per sub-section 6 (ii) thereof, the second part of the sample was to be produced by him in the Court in which proceedings, if any, were instituted in respect of the insecticide. A bare reading of that Section makes it clear that the second part of the sample is not required to be produced before the Court immediately after taking of the sample, but that was to be produced after the institution of the proceedings. The same was done in the present case. Admittedly there is variation in the two reports regarding the same pesticide. The quality control laboratory had found that the contents of fenvalerate was 8.63% against prescribed 20% whereas the Central Laboratory has found the same to be 14.3%. This variation alone is not a ground for coming to the conclusion that both the samples were not taken at the same time or that the accused stood prejudiced. It was found by both the laboratories that the sample, so analysed, was misbranded. The variation may be on account of a number of factors, therefore, there is no ground for setting aside the conviction of the accused on the ground of this variation. In view of my above discussion, this revision is accepted qua Crl. Rev. No.1833 of 2005(O&M) -8- petitioner No.2/accused No.4 and he is acquitted of the offence under Section 29(1) of the Act. Sentence imposed upon him is set aside. The fine, if already deposited, be refunded to him. The same is dismissed qua petitioner No.1/accused No.3. The conviction and sentence imposed upon that accused is upheld. Records be returned forthwith. March 14, 2011 (Gurdev Singh) tripti Judge