CRM M-25727 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM M-25727 of 2009 Date of Decision: 04.03.2010 M/s Garg Traders ....Petitioner Versus State of Punjab ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Arun Chandra, Advocate for the petitioner. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters 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 the complaint under Section 3k(1), 17, 18, 29 and 22 of Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules 1971 and for quashing all the consequential proceedings arising out of the said complaint. Brief facts of the case are that the petitioner is a proprietor of M/s Garg Traders, Mullanpur, District Ludhiana who has obtained a licence for the purpose of selling, stocking and exhibiting for sale of different types of Insecticides/Pesticides including that of M/s Montari Industries Limited. As per the allegations made in the complaint, the Insecticides Inspector inspected the shop of the petitioner on 15.04.1999 and draw the sample of CRM M-25727 of 2009 2 Butachlor 50% E.C. Batch No.0235 manufacturing date March 1994 and expiry dated February 2001 manufactured by M/s Montari Industries Limited, New Delhi. The sample was sent to the Insecticide Testing Laboratory and the same was found misbranded. On the basis of the report, the present complaint dated 28.11.2001 was filed in the Court of Chief Judicial Magistrate, Ludhiana. In para 5 of the petition, it is stated that Insecticide Inspector drew the sample of Butachlor 50% from 5 Ltr. from sealed packing. The petitioner was selling the insecticide in sealed containers in the original form as obtained from the registered manufacturer. So, no prosecution could be launched against the petitioner. The petitioner did not and could not have ascertained whether the Insecticide in any way contravened any provision of the Act. Moreover, the insecticide which was in possession of petitioner was properly stored and remained in the same state as and when petitioner acquired it. Even in the complaint, there is no averment that the sample was not stored in the proper state. In the absence of such averment in the complaint, the petitioner is entitled to the protection under Section 30(3) of the Act. Section 30(3) of the Insecticides Act, 1968, reads as under :- “ 30. Defences which may or may not be allowed in prosecutions under this Act.- (3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves- (a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof; (b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of CRM M-25727 of 2009 3 this Act; and (c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it.” A perusal of Section 30(3) of the Insecticides Act, 1968, shows that the petitioner is entitled to the protection under the same, in case, the sample is taken from the sealed container and the seal had not been tampered with when the same was recovered from the shop. However, the said protection is not available to him, in case, the insecticide was not properly stored. However, there is no such allegation in the complaint that the insecticide was not properly stored. Reply has been filed by the State of Punjab. In para 2 of the reply, it is admitted that the sample was taken from the petitioner's licenced insecticides shop on 15.04.1999 bearing batch No.035 having manufacturing date March 99 and expiry dated February 2001 from 5 litres sealed containers having stock position 210 litres (42x5) at that time manufactured by M/s Montari Industries Limited Bhai Mohan Singh Nagar, Toansa Tehsil Balachaur District Nawanshahar. This fact is also admitted in para 3 of the reply as under :- “3. It is submitted that after selecting one container of 5 litre sealed packing out of the batch no.035 of Butachlor 50% e.c. “Milchlor 50 EC” manufactured by M/s Montari Industries Limited then Sh. Kanwaljit Lal, Insecticides Inspector, Ludhiana had opened the seal of the selected sealed container and rinsed into three specified sampling tin containers approximately of 250 ml quantity of this insecticide Butachlor 50% e.c. “Milchlor 50 EC”. In para 5 of the reply, it is further stated that the petitioner had been holding insecticide licence bearing No.1156/95 and had purchased this insecticide from the manufacturer as per Bill no.407 dated 01.04.1999. CRM M-25727 of 2009 4 Thus, it is an admitted position that the petitioner is only a dealer and not the manufacturer and the sample was taken from sealed containers. Hon'ble the Supreme Court, in the case of M/s Kisan Beej Bhandar, Abohar vs. Chief Agricultural Officers, Ferozepur and another reported as 1990 Supreme Court Cases (Crl.) 623, in a similar case held as under :- “ xxx xxx xxx xxx In that view of the matter, on the facts found that it was a full tin in a sealed condition, the liability arising out of misbranding was not of the appellant. Unless he had any other source of information about misbranding – and it has not been established – the appellant is entitled to the protection of sub-section (3).” It is not denied that the present petitioner is a dealer and he had purchased the sample from the registered manufacturer, namely, M/s Montari Industries Limited. The respondent had admitted that the sample was taken from the sealed container. There is no allegation that the said seal was tampered with. In fact, it was specifically stated in the reply that the sample was taken from the sealed container and the seal was opened by the Inspector himself. There is also no allegation that the insecticide was not properly stored. In a similar situation, this Court, in the case of M/s Guru Nanak Pesticides, Nabha & Ors. vs. State of Punjab reported as 2010(1) RCR (Criminal) 30, quashed the criminal proceedings as under :- “ 6. xxx xxx xxx xxx There is clear-cut plea in the petition that they were selling the insecticide in the sealed container in the original form as obtained from the manufacturer and the sample was also taken from the original packing. This plea has not been controverted by the State. Thus, there remains no controversy that the impugned sample was CRM M-25727 of 2009 5 obtained from the sealed containers lying in the premises of the firm and there is no material to indicate that the insecticide was not properly stored. Thus, the petitioners being the stockist/dealer/distributor, involved in the sale of insecticides, cannot be held liable for misbranding of the insecticides and only the manufacturer would be liable. In this context reliance can be placed on the cases of M/s Kisan Beej Bhandar, Abohar v. Chief Agricultural Officers, Ferozepur 1990 Supreme Court Cases (Crl.) 623 and M/s Vimal And Co. Grain Market, Mullanpur v. State of Punjab, 2002(2) RCR (Criminal) 56 (P&H), followed in the case of Deepak Sharma & Ors. v. State of Punjab, 2002(2) RCR (Criminal) 24 and reliance can be safely placed on the case of M/s Punjab Beej Bhandar Bela & Anr. v. State of Punjab through Insecticide Inspector Ropar, 2008(1) RCR (Criminal) 998, wherein also this Court quashed the criminal proceedings against the licensed dealer.” Thus, it is apparent that the petitioner cannot be held responsible for misbranding the produce as the petitioner admittedly is only involved in the sale of insecticide and not in the manufacture. The manufacturers are already being proceeded in the complaint. It is also not the case that the insecticide was not properly stored. In view of the above admitted facts and the well settled proposition of law, the present petition is allowed and the complaint under Sections 3k(1), 17, 18, 29 and 22 of Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules 1971 and all the consequential proceedings arising out of the said complaint are, hereby, quashed. (NIRMALJIT KAUR) 04.03.2010 JUDGE gurpreet