Criminal Misc. No. M-2612 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-2612 of 2008 Date of Decision: 08.02.2010 1. Dhanuka Agritech Limited, formerly known as Northern Minerals Limited, 861-862, Joshi Road, Karol Bagh, New Delhi, through its Personnel Manager Sh. Rajesh Sahni. 2. Sanjay Kumar son of Sh. Jai Narain Mittal, c/o Dhanuka Agritech Limited, formerly known as Northern Minerals Limited, 861-862, Joshi Road, Karol Bagh, New Delhi. 3. Ram Gopal Aggarwal, c/o Dhanuka House, 861-862, Joshi Road, Karol Bagh, New Delhi ... Petitioners Versus The State of Haryana through Sub Divisional Agriculture Officer-cum-Insecticides Inspector, Jhajjar. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Arun Nehra, Advocate, for the petitioners. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing Criminal Misc. No. M-2612 of 2008 2 complaint, bearing No. 168/2, dated 28.11.03 (Annexure P1), the summoning order, and all the subsequent proceedings, arising out of the same, pending the Court of Chief Judicial Magistrate, Jhajjar, has been filed by the petitioners. 2. The facts, in brief, are that, on 31.07.03, Sub Divisional Agricultural Officer-cum-Insecticide Inspector, Jhajjar, drew a sample of Chlorpyriphos 20% E.C. (DHANVAN 20), from M/s Aggarwal Sales Company, Jhajjar, against the payment of price. The date of manufacturing of the insecticides, in question, was November, 2002, and the date of expiry was October, 2004. Thereafter, the sample of insecticides, was sent, to the Senior Analyst, Quality Control Laboratory, Karnal, vide letter dated 05.08.03. The same, was found to be mis-branded. A copy each of the report (Annexure P2) of the Senior Analyst, Quality Control Laboratory, Karnal, was sent, to the petitioners, vide letter dated 04.09.03. On 10.11.03, consent for institution of prosecution, under Section 29 of the Insecticides Act, was granted, and ultimately, the complaint dated 28.11.03 (Annexure P1) was filed. 3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 4. The Counsel for the petitioners, submitted that, there was no averment, in the complaint, as to whether, Sanjay Kumar, petitioner No. 2, and Ram Gopal Aggarwal, petitioner No. 3, were incharge of, and responsible to petitioner No. 1, for the conduct of its Criminal Misc. No. M-2612 of 2008 3 business. He further submitted that Sanjay Kumar, petitioner No. 2, was described, as Quality Control Officer of petitioner No. 1 Company, and, as such, responsible person. He further submitted that Ram Gopal Aggarwal, petitioner No. 3, was only described, as a Director of petitioner No. 1 Company, without stating, as to what was his role, in the alleged commission of crime. He further submitted that, under these circumstances, in the absence of averments, to the effect, in the complaint, that both petitioners No. 2 and 3, were incharge of, and responsible to petitioner No. 1 Company, for the conduct of its business, no complaint, could be filed, against them, nor cognizance, could be taken. He further submitted that, even despite showing their intention, to contest the report of the Senior Analyst, the second sample, was not sent, to the higher labotatory, for retest, as a result whereof, the petitioners, were deprived of their valuable right, and, as such, the complaint and the subsequent proceedings, were liable to be quashed. He further submitted that, no doubt, the complaint, was filed, before the expiry of the shelf life of Chlorpyriphos 20& EC (DHANVAN 20) insecticide, yet, the summoning order, was passed, after the expiry thereof, and, as such, the continuance of the complaint, the summoning order, and the subsequent proceedings, shall amount to sheer abuse of the process of the Court. 5. On the other hand, the Counsel for the respondent, submitted that, in the complaint itself, it was, in clear-cut terms, Criminal Misc. No. M-2612 of 2008 4 stated that, Sanjay Kumar, petitioner No. 2, was the Quality Control Officer, at the relevant time. He further submitted that the very nature of the duties of Sanjay Kumar, petitioner No. 2, depict that, he was to maintain the quality of insecticides. He further submitted that, under these circumstances, even Ram Gopal Aggarwal, petitioner No. 3, was described, as Director, and, as such, he was wholly solely responsible, for the conduct of the business of petitioner No. 1 Company. He further submitted that, no steps, were taken, by the petitioners, after the complaint, was presented, in the Court, on 28.11.03, and they were summoned, as accused, to get the second sample sent, to the higher laboratory, for retest, by making an application, before the Court, and by depositing the necessary charges. He further submitted that the complaint, was filed, before the expiry of shelf-life of the insecticide. 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 partly accepted and partly dismissed, 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 of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with Criminal Misc. No. M-2612 of 2008 5 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 Information Report or the complaint, even if they are taken at their face value and accepted Criminal Misc. No. M-2612 of 2008 6 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. 5)Where the allegations made in the FIR or complaint are so absurd and inherently Criminal Misc. No. M-2612 of 2008 7 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 cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, Criminal Misc. No. M-2612 of 2008 8 quashing of FIR was not justified. 7. In the complaint, Ram Gopal Aggarwal, petitioner No. 3, was only described, as Director of petitioner No. 1 Company. No averment, was made therein, that he was incharge of, and responsible to petitioner No. 1 Company, for the conduct of its business. In S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another, 2005, AIR (SC), 3512, 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, the fact that he was incharge of and responsible to the Company, for the conduct of its business, has to be stated, as a fact, 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. The principle of law, laid down, in S.M.S. Pharmaceuticals Ltd's case (supra), decided, by a three Judge Bench of the Apex Court, is applicable, to the case of Ram Gopal Aggarwal, petitioner No. 3, as it was not mentioned, in the complaint, that he was incharge of, and responsible, to petitioner No. 1 Company, for the conduct of its business. His mere description, as a Director of petitioner No. 1 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, laid down, in S.M.S. Pharmaceuticals Ltd's case (supra), are, thus, liable to be quashed. Criminal Misc. No. M-2612 of 2008 9 8. Now coming to the case of petitioner No. 1 Company and petitioner No. 2, it may be stated here that, in the complaint, it was, in clear-cut terms, stated that Sanjay Kumar son of Sh. Jai Narain Mittal, was the Quality Control Officer of M/s Northern Minerals Ltd., Daultabad Road, Gurgaon, (responsible person). From the very nature of the duties of Sanjay Kumar, being Quality Control Officer, it was evident, that he was to maintain the quality of the Insecticides, being manufactured, by petitioner No. 1 Company. Nothing more, could be described, by the complainant, with regard to the functions, being performed, by Sanjay Kumar, Quality Control Officer of petitioner No. 1 Company, since the very nature of the duties of Sanjay Kumar, clearly showed, as to what, he was to do, in the Company. Section 33(2) of the Insecticides Act, 1968, reads as under:- “Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” The plain reading of the provisions of Section 33(2) of the Insecticides Act, 1968, extracted above, clearly goes to show that, if any offence, has been committed with the consent or connivance of, Criminal Misc. No. M-2612 of 2008 10 or is attributable to any neglect on the part of, any Director, Manager, Secretary or other officer of the Company, such Director, Manager, Secretary or other officer, shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. 9. Sanjay Kumar, petitioner No. 2, was the Quality Control Officer of petitioner No. 1 Company, at the relevant time. Since the sample, drawn by the Sub Divisional Agricultural Officer-cum- Insecticide Inspector, was found to be mis-branded, it could be prima-facie said, that the offence, was committed, either with his (petitioner No. 2) connivance or due to the negligence, on his part. In these circumstances, on account of the very nature of the duties of the Quality Control Officer, he was certainly, prima-facie liable for committing the offence, contained in the complaint. Similarly, petitioner No. 1, is the manufacturing Company. The complaint, against petitioners No. 1 and 2, is, therefore, not liable to be quashed, on account of the reason, that no averment, was made, that petitioner No. 2, was incharge of, and responsible, to petitioner No. 1, for the conduct of its business. The submission of the Counsel for petitioners No. 1 and 2, to this extent, being without merit, must fail, and the same stands rejected. 10. Now coming to the factum, as to whether, the petitioners, were deprived of their valuable right of getting the second sample retested, from the higher Laboratory, it may be stated here that the Criminal Misc. No. M-2612 of 2008 11 petitioners, allegedly showed their intention for retest of the sample, by sending reply, to the show cause notice,which was given, to them, before the filing of the complaint. However, after the complaint, was filed, on 28.11.03, and the accused, were ordered to be summoned, vide the order of event date to face trial, for the offences, punishable under Sections 3(k) 17(1) and 18 of Insecticides Act, 1968, no steps, were taken, by the petitioners, to move an application, before the Court, where the proceedings, were pending, by depositing the charges, as required, under Section 24(5) of the Insecticides Act, 1968, that the second sample be sent, to the higher Laboratory for retest. In case, they were so interested, in getting the second sample retested, from the higher Laboratory, they were required, to approach the Court, and move an application, before it, before the expiry of the shelf-life of the insecticide, by depositing the amount for retest. By not doing so, they allegedly lost their right. It, therefore, could not be said, that they were allegedly deprived of their valuable right of getting the second sample retested. If, on account of their own negligence, something was not done, then the complainant, could not be blamed. Even otherwise, the disputed question, as to what steps were taken by the petitioners, for getting the second sample sent to the higher laboratory for retest before the expiry of shelf-life shall be decided by the trial Court, after the parties lead evidence. Reliance, was placed, by the Counsel for the petitioners, on State of Haryana Vs. Unique Farmaid P. Ltd., 2000(1), PLR, 290, State of Haryana Criminal Misc. No. M-2612 of 2008 12 Vs. Brij Lal Mittal, AIR, 1998 (SC), 2327, and, M/s Ravinder Kumar and Brothers Vs. State of Punjab, 1996(2) RCR (Criminal) 426, to contend that, if the second sample, was not sent for retest, despite showing intention, by the petitioners, then they are deprived of their valuable right, and the proceedings, are liable to be quashed. The perusal of the aforesaid cases, clearly goes to show, that either the complaints, in the said cases, had been filed, after the expiry of the shelf-life of the insecticide, or the accused were summoned by the Court, when the shelf-life of the insecticide, had already expired. It was, under these circumstances that, it was held, that the accused, were deprived of their valuable right of getting the second sample retested. In the instant case, the complaint, was filed, on 28.11.03, whereas, shelf-life of the insecticide, was to expire, in November, 2004. On 28.11.03, itself, the petitioners, were summoned, as accused, to face trial, for various offences, under the Insecticides Act, 1968. No help, therefore, can be drawn, by the Counsel for the petitioners, from the ratio of law, laid down, in the aforesaid cases, the facts thereof, being distinguishable, from the facts of the instant case. The submission of the Counsel for petitioners No. 1 and 2, in this regard, being without merit, must fail, and the same stands rejected. 11. For the reasons recorded above, Criminal Misc. No. M- 2612 of 2008, filed by Ram Gopal Aggarwal, petitioner No. 3, for quashing the complaint, summoning order and the subsequent Criminal Misc. No. M-2612 of 2008 13 proceedings, arising out of the same, is accepted. Resultantly, complaint, bearing No. 168/2, dated 28.11.03 (Annexure P1), the summoning order, and all the subsequent proceedings, arising out of the same, pending in the Court of Chief Judicial Magistrate, Jhajjar, qua him, are quashed. 12. Criminal Misc. No. M-2612 of 2008, filed by Dhanuka Agritech Limited, petitioner No. 1, and, Sanjay Kumar, petitioner No. 2, being without merit, must fail, and the same is dismissed, qua them. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 13. Registry is directed, to send copies of the order, to the Courts concerned immediately. 08.02.2010 (SHAM SUNDER) Amodh JUDGE