Criminal Misc. No. M-29260 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-29260 of 2009 Date of Decision: 06.05.2010 Sh. Nikhil Aggarwal son of Sh. Ashok Kumar Aggarwal, Director of Hindustan Pulverising Mills, having its Corporate Office at 209-210, Anupam Bhawan, Commercial Complex, Azadpur, New Delhi – 110033. ... Petitioner Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Gourav Chopra, Advocate, for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent - State. SHAM SUNDER, J. This petition, under Section 482 Cr.P.C., for quashing Complaint No. 46/09 dated 31.01.09, under Sections 3 (K) (1) 17, 18, 29, and, 33 of Insecticide Act, 1968 read with Rule 27(5) of Insecticide Rules, 1971 (Annexure P1) (hereinafter to be called as the 'Act' only), the summoning order dated 31.01.09 (Annexure P2), passed by the Court of Judicial Magistrate 1st Class, Nakodar, and all the subsequent proceedings, arising therefrom, has been filed by the petitioner. Criminal Misc. No. M-29260 of 2009 2 2. The facts, in brief, are that, on 31.08.06, Sukhjit Singh, Agriculture Development Officer-cum-Insecticide Inspector, alongwith Sukhdev Singh, Agriculture Officer, inspected the premises of M/s Dalla Pesticide and Seed Store, Lohian Khas, District Jalandhar, where, 125 packets of Methyl Parathion 2%, bearing DL Batch No. M569, manufacturing date 25.07.06, expiry date 24.07.08, and, manufactured by M/s Hindustan Pulverising Mills, weighing 500 gms each were found. Thereafter, Sukhjit Singh, complainant, purchased one packet of Methyl Parathion, from Tarsem Singh, vide bill No. 2331 dated 31.08.06, against the payment of Rs. 52/-, in the presence of Sukhdev Singh, Agriculture Officer, for the purpose of analysis, the contents whereof, were converted into three parcels, duly labelled and sealed. Two sample parcels, were sent to the office of the Chief Agriculture Officer Jalandhar, on 31.08.06, for the purpose of analysis. The report of the Senior Analyst, Insecticide Lab, Amritsar, was received, on 05.10.06, according to which, the samples, did not conform to the relevant SI specification, in respect of their active ingredient contents, which were found to be 1.39% against 2% DP with variation of 0.61%. Thus, the samples were found to be misbranded. A copy of the report of the Senior Analyst, Insecticide Lab, Amritsar, in respect of the samples of Methyl Parathion, was sent, to M/s Dalla Pesticide and Seed Store, Lohian Khas, on 03.11.06. Tarsem Singh, representative of M/s Dalla Pesticide and Seed Store, Criminal Misc. No. M-29260 of 2009 3 Lohian Khas, requested for getting the sample reanalyzed, from Central Insecticide Laboratory, Faridabad, on 10.11.06. Thereafter, the Chief Agriculture Officer, Jalandhar, sent the sample, to the Central Insecticide Laboratory, Faridabad, for reanalysis, according to which, the same, was found to be misbranded, as the active ingredient, in the sample, was found to be 0.82% against 2%. It was stated that, since M/s Dalla Pesticide and Seed Store, Lohian Khas, Jalandhar, purchased the packets of Methyl Parathion, from the petitioner, authorized representative of M/s Hindustan Pulverising Mills, the manufacturing firm, an attested copy of the analysis report, was sent, to him, on 14.09.07. Ultimately, the aforesaid complaint was filed. 3. The trial Court, after finding a prima-facie case, against the petitioner, summoned him, to face trial, for the offence, punishable under Section 29 of the Act. 4. Feeling aggrieved, the instant petition, has been filed by the petitioner. 5. The Counsel for the petitioner, submitted that, there was no averment, in the complaint, as to whether, Nikhil Aggarwal, petitioner, was incharge of, and responsible to M/s Hindustan Pulverising Mills, for the conduct of its business. He further submitted that, the petitioner, was only described, in the array of the accused in complaint as Marketing Director of the Company, and, as such, responsible person. He further submitted that, under these Criminal Misc. No. M-29260 of 2009 4 circumstances, in the absence of averments, to the effect, in the complaint, that the petitioner, was incharge of, and responsible to the Company, for the conduct of its business, no complaint, could be filed, against him, nor cognizance, could be taken. He further submitted that, the continuance of complaint, the summoning order, and the subsequent proceedings, shall amount to sheer abuse of the process of the Court. He also placed reliance, on S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another, 2005, AIR (SC), 3512, and, S.K. Jindal Vs. State of Haryana, 2005(4), RCR (Criminal), 68 (P&H), in support of his contention. 5. On the other hand, the Counsel for the respondent, submitted that, in the complaint itself, it was, in clear-cut terms, stated that, Nikhil Aggarwal, petitioner, was the Marketing Director of the Company, at the relevant time. He further submitted that, the petitioner, being the Marketing Director of the Company, was wholly solely responsible, for the conduct of its business. He further submitted that the complaint and the subsequent proceedings, are not liable to be quashed. 6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process Criminal Misc. No. M-29260 of 2009 5 of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear, that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations, set out, in the complaint, or charge-sheet, do not, in law, constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1)Where the allegations made in the First Criminal Misc. No. M-29260 of 2009 6 Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2)Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same, do not disclose the commission of any offence, and make out a case against the accused. 4)Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. Criminal Misc. No. M-29260 of 2009 7 5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of Criminal Misc. No. M-29260 of 2009 8 cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 7. In the complaint, the petitioner, was only described, as Director of the Company. No averment, was made therein, that he was incharge of, and responsible to the Company, for the conduct of its business. In S.M.S. Pharmaceuticals Ltd's case (supra), decided by a three Judge Bench of the Apex Court, it was held, that every Director of the Company would not be deemed to be incharge of and responsible to the Company, for the conduct of its business. It was further held that, in the complaint against a Director, it has to be stated, as a fact that he was incharge of and responsible to the Company, for the conduct of its business, and there is no deemed liability of a Director. Merely being described as a Director, in a Company, is not sufficient to satisfy the requirement of the provisions of law. Similar principle of law, was laid down, in S.K. Jindal's case (supra). The principle of law, laid down, in the aforesaid cases, relied upon, by the Counsel for the petitioner, is fully applicable, to the case of the petitioner, as it was not mentioned, in the complaint, that he was incharge of, and responsible, to the Company, for the conduct of its business. His mere description, as a Director of the Company, could not make him liable, for the commission of offence. The complaint, summoning order, and the subsequent proceedings, qua him, in view of the principle of law, Criminal Misc. No. M-29260 of 2009 9 laid down, in the aforesaid cases, are, thus, liable to be quashed. 8. For the reasons recorded above, Criminal Misc. No. M-29260 of 2009, is accepted. Complaint No. 46/09 dated 31.01.09, under Sections 3 (K) (1) 17, 18, 29, and, 33 of the Act, the summoning order dated 31.01.09 (Annexure P2), passed by the Court of Judicial Magistrate 1st Class, Nakodar, and all the subsequent proceedings, arising therefrom, are quashed, qua the petitioner. 9. The Registry is directed to comply with the judgement, by sending the copies thereof, to the quarters concerned. 06.05.2010 (SHAM SUNDER) Amodh JUDGE