1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (BA) NO. 417 OF 2011 SUDHIR HUKUMCHAND JAIN ..VERSUS.. STATE OF MAHARASHTRA, THROUGH P.S.O., P.S., GONDIA CITY, GONDIA Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. -------------------------------------------------------------------------------------------------------------------------------------------- Mr. Anil S. Mardikar, Advocate for the applicant. Mr. M. J. Khan, A.P.P. for the non-applicant /State. CORAM : PRASANNA B. VARALE, J. DATED : 29 th SEPTEMBER , 2011 . By the present criminal application under Section 439 of the Code of Criminal Procedure, the applicant is seeking his release on bail in Crime No. 3066/2010 registered at Police Station, Gondia City, Gondia, for the offence punishable under Sections (9), 10(4) (2), 13, 3, 4(k), of The Insecticides Act, 1968 (hereinafter referred to as the Act of 1968) and under Rules 15 and 20 of The Insecticides Rules, 1971 (hereinafter referred to as the Rules of 1971). The brief facts giving rise to this application are stated thus - A report dated 19.08.2010 came to be lodged at Police Station, Gondia city, Dist. Gondia through Mr. Rashid Khan Nawab Khan Pathan, District Quality Control Inspector and District Agriculture Superintending Officer, Gondia. It was stated in the report that on receiving information from the Police Inspector, P.S., Gondia city that the applicant in his house at Civil Lines, Gondia, has indulged in manufacturing and selling the insecticides, without having any valid lincense or permission. The godown of the applicant was visited and it was found that there was huge stock of insecticides and 2 pesticides in the said godown. On the basis of said report, the offence came to be registered. It is not in dispute that prior to this application, the applicant had approached this Court for releasing him on bail on two occasions by filing Criminal Application Nos. 1777/2010 and 1778/2010, which were permitted to be withdrawn and Criminal Application nos. 29/2011 and 44/2011, by which applicant sought bail on the ground of ill-health and this Court by order dated 10.03.2011, on considering the medical report, had rejected the applications. It is also not in dispute that the investigation is now concluded by filing the charge-sheet. The prosecution on the basis of the material collected, added the charges for the offence punishable under Sections 418, 420, 468 and 471 of Indian Penal Code as well contravention of Section 9 and 29 of The Insecticides Act, 1968 and Sections 3 and 7 of the Essential Commodities Act. (hereinafter referred to as E.C. Act) Mr. Mardikar, the learned counsel for the applicant has firstly submitted that on the same allegations, a report was lodged at Police Station, Rawanwadi, Dist. Gondia and Crime No.46/2010 came to be registered against the applicant for committing offence under Sections 3 and 7 of Essential Commodities Act, 1951 and under Sections 420, 468 and 471 of Indian Penal Code and under the provisions of the Insecticides Act, 1968. In the said crime, the applicant had filed an application being Misc. Criminal Application No. 233/2010 for grant of bail before the 1st District and Sessions Judge, Gondia and the learned Ad-hoc Additional Sessions Judge, Godia, by order dated 23.9.2010 allowed that application and released the applicant on bail on certain conditions. The learned counsel for the applicant has further submitted that in the case at hand, the applicant is behind the bars for a period more than one year. The investigation is 3 complete and concluded by filing charge-sheet i.e. final report and it is not the case that anything is to be recovered at the instance of the applicant. The necessary material is collected by the investigating agency. He further submitted that as the applicant is a businessman, there is no likelihood that the applicant will not be available for conducting the trial or will abscond. He also submitted that apart from these grounds, the applicant is having a very strong case on merits. He, therefore, prayed for releasing the applicant on bail. Per contra, Mr. Khan, the learned Additional Public Prosecutor for the State has strongly opposed the application and the prayer. He submits that the investigating agency has collected the material and found that the applicant was manufacturing insecticides under the brand name “Shree G. Biotech”. It was further revealed in the investigation that the applicant was not possessing any lincense or permission from the competent authority for manufacturing and selling the insecticides, but the applicant by using the name of “Shree G. Biotech”, was manufacturing and selling the same in the State of Maharashtra as well as in the State of Madhya Pradesh. The learned APP further submits that the investigating agency has seized the material from the godown possessed by the applicant, such as labels, empty bottles and when the product manufactured by the applicant was forwarded to the laboratory, the report received from the Insecticide Testing Laboratory, Pune mentions that the sample fails to relevant CIB/BIS specification, hence mis-branded. The learned APP further submits that the offence committed by the applicant is a serious one as the insecticides are being used by the agriculturists and the agriculturists were put to loss by the sub-standard insecticides manufactured by the applicant. The learned APP by referring to the reply filed by the State, submitted that the applicant is having criminal antecedents. 4 He, therefore, prayed for rejection of the application. I have heard the learned counsel for the parties at length. Mr. Mardikar, the learned counsel for the applicant by inviting my attention to the relevant provisions of The Act of 1968, more particularly the provisions under Sections 3(k), 13, 17(1), 18(1), 19 as also Rules 15(1) and 20 of the Rules of 1971, submitted that even accepting the case of the prosecution, but not admitting, the Act of 1968 being a complete Code, makes various provisions for breach of the provisions of it and provides for punishment for the same. The learned counsel, therefore, submits that from the material collected by the investigating agency, at the most it can be said that the applicant has committed breach of the provisions of the Act of 1968 and as such there was no reason to attract the offence under Sections 418, 420, 468 and 471 of I.P.C. In respect of the alleged offence under Section 3(k) of the Act of 1968, if the investigating agency was of the opinion that the product manufactured by the applicant was mis-branded, the procedure laid down under Section 24 of the Act of 1968 ought to have been followed. As per sub-Section (2) of Section 24, the Insecticides Inspector was duty bound to deliver one copy of the report to the person from whom the sample was taken and shall retain another copy for use in any prosecution in respect of the sample. The learned counsel for the applicant, has invited my attention to the communication dated 30.08.2011 sent by the 2nd Jt. Civil Judge, Jr. Divn. and J.M.F.C., Gondia to the Chief Judicial Magistrate, Gondia, in which it is stated that “I have also called report of muddemal clerk to ascertain whether the District Quality Control and Inspector has produced sample of insecticide in the Court or not. It appears from the report of muddemal clerk that, no such samples are produced in the Court” and submitted that as the 5 sample is not deposited in the Court and as there is breach of the provisions of Section 24 of the Act of 1968, a serious prejudice is caused to the applicant as he is deprived of an opportunity to refer the sample to the Central Insecticides Laboratory, for which the Act provides for and a request can be made under the provisions of the said Act. The learned counsel for the applicant, therefore, submits that there is a serious lacuna on the part of investigating agency in non- observance of the provisions of the Act of 1968. In view of the submissions of the learned counsel for the applicant, perused the communication dated 30.08.2011. The learned APP is not in a position to counter the submission of the learned counsel for the applicant. In view of the provisions as referred to above, I find a considerable merit in the submission of the learned counsel for the applicant that necessary compliance of the provisions has not been followed. The learned counsel for the applicant has further submitted that in view of provisions of Section 29 of the Act of 1968, the punishment for first offence of manufacturing mis- branded insecticide is imprisonment for a term, which may extend to two years or with fine which shall not be less than Rs.10,000/-, but which may extend to Rs.50,000/- or with both. The learned counsel for the applicant submits that this being the first alleged offence of the applicant, the punishment for the said offence would be at the most two years imprisonment and the applicant is behind the bars for more than one year i.e. for a considerable period. According to the learned counsel, the trial would take considerable time to conclude and keeping the applicant behind the bars for more period would amount to punishing the applicant before trial. It is not in dispute that the applicant was arrested on 19.08.2010 and since then he is being the bars i.e. for a period of one year and as such I find considerable merit in the 6 submission of the learned counsel for the applicant. Mr. Madikar, the learned counsel for the applicant has further submitted that though, the applicant is alleged to have committed offence under Section 3 and 7 of the E.C. Act, the material collected by the investigating agency is wholly inadequate for attracting the provisions of the E. C. Act. There is no material on record to show that the applicant has indulged in manufacturing and selling of fertilizers. The whole material collected by the investigating agency is alleging that the applicant has indulged in manufacturing and selling the insecticides and as such whole material i.e. panchanamas, samples, notices and the report, relates to insecticides. There is also nothing on record to show that any fertilizer was found and as such the investigating agency has mechanically levelled the charge under Sections 3 and 7 of the E.C. Act. From perusal of the material, I find considerable merit in the submission of learned counsel for the applicant. Though, the learned A.P.P. tried to submit that the applicant has committed serious offence and thereby the agriculturists were subjected to loss, perusal of the material on record show that not a single statement of any agriculturist recorded by the agency is produced on record in support of the submission. Perusal of the record further reveals that when the investigating agency visited the godown, the stock was kept in the godown. There is nothing on record in the nature of statement of any agriculturist that the insecticide was purchased by the agriculturist. The material on record at the most shows that the product was at the stage of preparation. The learned APP also submitted that the applicant in connivance with some officers of Government of Madhya Pradesh, tried to sell mis-branded insecticides, but there is no material on record in support of the submission of learned APP. Though, the learned APP has submitted that the applicant is 7 having criminal antecedent, but was unable to show any material to substantiate his contention. On considering the material and in view of the submission of learned counsel for the applicant, I am of the opinion that a case is made out for enlargement of the applicant on bail under Section 439 of Cr.P.C. The apprehension of the learned APP that the applicant would not be available for trial, if he is released on bail, can be taken care of by putting the applicant on certain conditions. In the result, the criminal application is allowed. The applicant Sudhir Hukumchand Jain be released on bail in Crime No.3066/2010 registered at Police Station, Gondia City, Gondia, on his furnishing a P. R. Bond of Rs. 5,00,000/- (Rupees Five lakhs) with one solvent surety in the like amount with following conditions : a] The applicant to cooperate with the investigating agency and attend the police station, Gondia City, Gondia every Monday and Friday between 10.00 a.m. to 12.00 noon, for a period of six months and thereafter as and when called by the police. b] If the applicant is possessing the passport, he should deposit it before the trial Court. c] The applicant shall not tamper with the prosecution evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. d] The applicant to submit his residential address and his contact numbers such as phone/mobile numbers to the investigating agency. e] In case the applicant is moving out of the area of police station, Gondia city, he shall inform the police station about his visit to other place. In case of breach of these conditions, the prosecution 8 agency to take necessary steps in accordance with the provisions of law. It is made clear that the observations made in this order are only in respect of the prayer of releasing the applicant on bail and the same should not be treated as any opinion expressed by this Court about the merits of the matter. The criminal application is disposed of in the aforesaid terms. JUDGE Diwale