* IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. M.C. No. 2639/2006 % Date of Decision: 2nd January, 2008 # Rajiv Khurana.....Petitioner ! Through Ms. Rebecca M. John with Mr. Vishal Gosain versus $ The State of NCT of Delhi & Anr. ....Respondents ^ Through Mr.Pawan Behl, APP for the State. CORAM: * HON'BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the Judgment?(No) 2. To be referred to the Reporter or not?(No) 3. Whether the judgment should be reported in the digest?(No) JUDGMENT P.K.BHASIN, J: The petitioner by way of this petition under Section 482 of the Code of Criminal Procedure, 1973 seeks quashing of the criminal complaint no. 83/2002 for the offence under Section 29(1)(a) of the Insecticides Act, 1968 filed by the Insecticides Inspector and pending in the Court of Metropolitan Magistrate, Rohini Courts as also the order dated 10.04.2002 passed therein summoning him as an accused. 2. Relevant facts necessary for the disposal of the present petition are that a criminal complaint was filed by the Insecticides Inspector against M/s Reckitt & Colman of India Ltd. and the petitioner on the allegations that on 05.03.1999 Insecticides Inspector visited the premises of the said Company in Okhla Industrial Area and purchased three containers of Allethrin 0.2 % mosquito coil (insecticide) for the purpose of inspection and then the said samples were sealed in the presence of the petitioner. One sample was sent to the Pesticides Testing Laboratory at Chandigarh for testing. As per the report of the analyst, the sample did not conform to the prescribed IS specifications in its a.i. content requirements and so it was opined to be ‘misbranded’. The aforesaid Company challenged the said report and requested for retesting. The second sample was then sent to a Laboratory in Faridabad where also the analyst declared the sample as ‘misbranded’. Then respondent no. 2-complainant sent a notice to the Company to explain as to why the Company was manufacturing and selling ‘misbranded’ insecticide. Since the Company did not respond criminal complaint was filed in Court. The learned Magistrate took cognizance and summoned the Company and the petitioner herein as an accused. Aggrieved by the said summoning order dated 10.04.2002, the petitioner has preferred this petition. 3. The learned counsel for the petitioner contended that the complaint against the petitioner is not maintainable because the complainant has failed to aver in the compliant as to in what capacity the petitioner was being prosecuted for the offence committed by the abovesaid Company. The counsel for the petitioner also cited two judgments of the Apex Court in “S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla” 2005 (3)JCC (NI) 203 and “M/s Gupta Chemicals Pvt. Ltd. & Ors. v. State of Punjab” 2006(1) Crimes 576 in support of this petition. 4. Learned APP for the state opposed the quashing of the criminal complaint stating that the averments made in the complaint are sufficient to launch a prosecution against the petitioner herein. Learned APP further submitted that the Consent Order dated 20.03.2002 vide which the permission was granted by the competent authority to the Insecticides Inspector to initiate the prosecution of the above named Company as well the petitioner herein clearly mentions the designation of the petitioner as Regional Technical Director of the accused Company and so the complaint against the petitioner also was maintainable. 5. I have considered the rival submissions. A perusal of the criminal complaint filed in the trial Court shows that it does not contain any averment from which it could be inferred that the petitioner was in any way in-charge of or managing the day-to-day affairs of the accused Company, namely, M/s. Reckitt and Colman of India Ltd. In fact, it has also not been pleaded in the complaint that the petitioner was either a Director of the accused Company or its employee. All that has been averred in the complaint is that the ‘misbranded’ samples were sealed by the Insecticides Inspector in the presence of the petitioner. This averment is definitely not sufficient to prosecute the petitioner for an offence which as per the complaint was committed by the manufacturer of the ‘misbranded’ product. Under Section 33 of the Insecticides Act, 1968 it is provided that if an offence under this Act is committed by a Company then every person who was in-charge of the affairs of the Company at the time of commission of the offence would also be liable for the offence in addition to the Company. Since in the present case it has not been averred in the complaint that the petitioner was at the relevant time in-charge of or responsible to the accused Company for the conduct of its business he cannot be prosecuted and held vicariously liable for an offence allegedly committed by the accused Company. The criminal complaint against the petitioner was, therefore, not maintainable and the learned Magistrate should also have not taken cognizance against him and summoned him as an accused in respect of the offence allegedly committed by the aforesaid Company. As far as the Consent Order dated 20.03.2002 for the prosecution of the Company and the petitioner, relied upon by the learned APP, is concerned even that document does not disclose that the petitioner was in any way in charge of the affairs of the accused company at the relevant time. Just because in that order the petitioner has been described as a Technical Director of the accused Company no criminal liability can be fastened upon him for the act of the Company. In any case, as noticed already, in the complaint the petitioner has not been shown to be even a Director of the accused Company. Therefore, the learned Magistrate was not justified in entertaining the complaint against the present petitioner and summoning him as an accused. 6. In view of the foregoing, this petition is allowed and the complaint case no. 83/2002 titled as “D.R. Pal v. Reckitt & Colman of India Ltd. & Anr.” pending in the Court of Sh. Prashant Kumar, Metropolitan Magistrate, Rohini Courts, as well as the order dated 10.04.2002 whereby the petitioner was summoned as accused are hereby quashed. January 2,2008 P.K.BHASIN,J sh