CRM M 7074 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 7074 of 2010 Date of decision: 21.02.2011 Naresh Kumar and others ........ Petitioners Versus State of Punjab through Insecticide Inspector, Kapurthala .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Rakesh Verma, Advocate for the petitioners Mr. J S Brar, AAG, Punjab for the respondent State -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 Cr.P.C for quashing of the complaint No. 79 dated 02.03.2007 under sections 3(k) (i), 17, 18, 29 and 33 of the Insecticide Act, 1968 read with rules 27 (5) of the Insecticides Rules 1971 titled as State v M/s Punjab Khad Store and others pending in the Court of learned Chief Judicial Magistrate, Kapurthala and summoning order and all consequential proceedings arising therefrom qua the petitioners. Facts, in short, are that the petitioner firm is the licensee under Insecticides Act, 1968 to deal in various kind of insecticides and pesticides CRM M 7074 of 2010 2 of registered and approved manufactured companies by Government of India as well as by the Government of Punjab. The petitioner firm sells only originally sealed and packed insecticides/pesticides as packed by registered manufacturing companies, who are authorized by Government of Punjab to sell their products in the State of Punjab and whose addition have been made by the Licensing Authority in the license of the petitioner firm. As per the complainant version, on 07.07.2005, he drew a sample of one insecticide i.e. Monocrotophos 36% SL being batch No. 028 with manufacturing dated 22.05.2004 and expiry date 21.10.2005, while picking three originally sealed and packed containers, each weighing one lt. as were lying and stored properly from the shop premises of the petitioner firm as manufactured by M/s Shreejii Pesticides Pvt. Limited Vadodara, Gujarat. In this way, all the three representatives parts of the sample were drawn out of original packing of the manufacturing company. The said manufacturing company i.e. M/s Shreeji Pesticides Pvt Ltd. Vadodara, Gujarat is the registered and authorized manufacturing company by Government of Punjab to sell its products in the state of Punjab. One part of the sample was sent to State Insecticide Testing Lab, Amritsar and same was found misbranded after analysis. The second part of the sample was found misbranded by Central Insecticide Lab. Faridabad. Accordingly, a complaint was filed against the present petitioners in the Court of Chief Judicial Magistrate, Kapurthala. The petitioners have been summoned in the said complaint vide order dated 02.03.2007. While impugning the complaint as well as the summoning order, learned counsel for the petitioners submitted that the sample was drawn from the originally sealed and packed containers. As such, the CRM M 7074 of 2010 3 petitioners are not responsible for the manufacturing defect, if any. The same is the responsibility of the manufacturing Company. It is further stated that there is no allegation of tampering with the original packing. Learned for the respondent, however, submitted that whether the sample was taken from the original packing or whether there was any tampering or not is a matter of evidence and thus, the complaint and summoning order cannot be quashed on this ground at this stage. Heard. As per the complaint (P1), sample was drawn out of the three originally sealed and packed containers weighing of one litre each. The petitioners' firm is licensee having partners of the firm and simply sells the products in the State of Punjab. The said product is manufactured by M/s Shreeji Pesticides Pvt Limited, Vadodara, Gujarat. The sample having been drawn out the originally sealed and packed containers, the petitioners being the partners of the firm that sells the same, cannot know about the contents of the originally sealed and packed containers. Form No. XX (P3) has been placed on record which reads as under:- “FORM No. XX (See Rule 33) Intimation to person/licensee from whom sample is taken. M/s Punjab Khad Store, Kapurthala 0038185 I have taken from the premises of M/s Punjab Khad Store situated at outside Old Grain Market, Kapurthala sample of insecticide specified below for the purpose of test or analysis. Dated 07.07.2005 Sd/- and seal Sd/- M/s PKS Anil Kumar Sood CRM M 7074 of 2010 4 Insecticide Inspector Details of sample taken 1. Name of insecticide (Technical and Brand Name): Monocrotophos 36% SL 2. %age active ingredient: 36% SL 3. Batch No. 028, 22-05-2004, 21-10-2005 4. Date of drawal of sample : 07.07.2005 5. Packing:- Original packing or loose packing : Original 6. Size of packing from which sample is drawn: One Lt. 7. Approximate weight/volume of sample taken: One Ltx3 8. Full name of insecticide Inspector who draw the sample: Anil Kumar Sood 9. Stock position of insecticide: 9 pc x One ltd. 10. Name of manufacturer: M/s Shreeji Pesticides Pvt Limited Vadodara 11. Name of Distributor: M/s Shriram Fertilizers and Chemicals 12. Name of dealer: M/s Punjab Khad Store, Kapurthala Dated 07.07.2005 Sd/- and seal Anil Kumar Sood Insecticide Inspector” It is evident from above that sample was taken from original packing. Affidavit dated 06.12.2010 of S Navtej Singh, Insecticide Inspector, District Kapurthala has been filed. Para 1 of the said affidavit reads under:- “1. Original packing as per Form XX refers to the stock in possession of accused, which at the time of sampling is in a sealed condition which is purported to be same as packed, lebelled and sealed by the manufacturer. Although, it is stated in the subsequent paragraph that it is yet CRM M 7074 of 2010 5 to be determined whether the insecticide in question (Monocrotophos 36% SL of one liter each) was in original sealed packing or as to whether the sealed packing was tampered with or not, the allegation in the complaint and Form No. XX speaks for themselves. There is no doubt left that the sample was drawn from the originally sealed and packed containers weighing one liter and packed by the registered and authorized manufacturing company. There is no allegation that in the said complaint that the said seal was tampered with or the originally packing was tampered with. There is no allegation that the said sample was not stored in the same state. Learned Single Bench of this Court in the case of Ramesh Kumar and others vs. State of Punjab in CRM M 13774 of 2009, decided on 15.01.2010, in similar circumstances, held as under:- “7. As would be apparent on the face of Form XX Annexure P-3, the sample of the insecticide was taken in original packing by Harpreet Singh, Insecticide Inspector from the premises of M/s Malka Kheti Store, Rajoke Road, Amarkot Tehsil Patti, District Tarn Taran. It is well settled that if the sample is taken from the original packing of the manufacturer and stored for sale in the same condition, the dealer/distributor is entitled to get protection under Section 30(3) of the Act, if the substance/sample drawn was in its original condition. In the instant one, as is being evidenced by Annexure P3, the sample is question was contained in its original packing of 500 mls. There is nothing on the record to show that the pretilachlor 50% EC Preet Batch No. TR 00002 of which sample was drawn was not stored in the same state. If the sample had been tampered with, the original packing would have certainly got disturbed. The same would have not been in the same CRM M 7074 of 2010 6 state. Such being the circumstances, the petitioners being the dealers/distributors cannot be held liable.” Learned counsel for State has not been able to dispute that the present case is squarely covered by the ratio of judgment rendered by this/Court in the case of Ramesh Kumar's (supra). In view of the foregoing discussion, the present petition is allowed. Complaint No. 79 dated 02.03.2007 under sections 3(k) (i), 17, 18, 29 and 33 of the Insecticide Act, 1968 read with rules 27 (5) of the Insecticides Rules 1971 titled as State v M/s Punjab Khad Store and others pending in the Court of learned Chief Judicial Magistrate, Kapurthala and summoning order and all consequential proceedings arising therefrom qua the petitioners are hereby quashed. Allowed in the aforesaid terms. (Nirmaljit Kaur) Judge 21.02.2011 mohan