Criminal Misc. No. 13774 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 13774 of 2009 (O&M) Date of decision: 15-1-2010 Ramesh Kumar and others .........Petitioners Vs State of Punjab .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Shri Rakesh Verma, Advocate, for the petitioners Shri R.S.Rawat, Assistant Advocate General Punjab. HARBANS LAL, J. This petition has been moved by Ramesh Kumar, M/s Malka Kheti Store through its proprietor (Ramesh Kumar), VijayKumar and M/s Dhawan Brothers through its partner (Vijay Kumar) under Section 482 of the Code of Criminal Procedure for quashing the complaint No.35 dated 7.11.2008 Annexure P-1 under Section 3(k), (i), 17, 18, 29 and 33 of Insecticide Act, 1968 (for brevity the Act) read with rule 27(5) of Insecticides Rules 1971, titled as State Vs M/s Malka Kheti Store and others pending in the court of learned Sub Divisional Judicial Magistrate, Patti, District Tarn Taran, the summoning order Annexure P-2, and all consequential proceedings arising therefrom. The brief facts giving rise to this petition are that the petitioners are the licensee under the Act to deal in various kinds of insecticides and pesticides manufactured by the companies. They sell only sealed and packed insecticides/pesticides as packed by registered manufacturing companies Criminal Misc. No. 13774 of 2009 (O&M) 2 who are authorized by Government of Punjab to sell their products in the State of Punjab. On 17.06.2007 the complainant drew a sample of one insecticide i.e. Pretilachlor 50% EC bearing Batch No. TR-00002, manufacturing date 20.6.2006 and expiry date 19.6.2008, While picking three originally sealed and packed containers weighing 500 mls as those were lying and stored properly from the shop premises of M/s Malka Kheti Store, Rajoke Road, Amarkot, petitioner, manufactured by M/s Rallis India Ltd. Mumbai. This is the registered and authorized manufacturing company by Government of Punjab to sell its products in the State of Punjab. The material was sold by petitioner No.4 to petitioner No.2 in the routine course of business. One part of the sample was sent to the State Insecticide Testing Laboratory, Bathinda which was found mis-branded after analysis. The second part of the sample was also found mis-branded by the Central Insecticide Laboratory, Faridabad. On 7.11.2008, the complaint was lodged in the Court of learned Sub Divisional Judicial Magistrate, Patti, who without going into the facts and law on the point took cognizance. The complaint Annexure P-1, the summoning order Annexure P-2 and all consequential proceedings arising therefrom qua the petitioners being bad in the eyes of law are liable to be quashed in view of the grounds as enshrined in this petition. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The learned counsel for the petitioners eloquently urged that as alleged the sample was drawn while picking up three originally sealed and packed containers weighing 500 mls each of one registered and authorized Criminal Misc. No. 13774 of 2009 (O&M) 3 manufacturing company from the shop of petitioner No.2 lying and stored properly. The seal being intact, the petitioners could not know with reasonable diligence about the contents of the originally sealed packing and that being so, it cannot be attributed to the petitioners that the sample was misbranded by them. As per seizure memo Annexure P-3 prepared at the time of sampling by the Insecticide Inspector, only 8 containers of 500 mls in total were lying in the shop of the aforesaid petitioner. This clearly indicates that the petitioners did not have any culpable intention to cheat any person or to commit any contravention under the Act. To buttress this stance, he has sought to place abundant reliance upon the observations rendered by me in re: M/s Jai Rath Seed Store, Bhangala and others Vs. Punjab State through Insecticide Inspector 2009(4) Recent Criminal Reports (Criminal) 831. The learned State counsel could not controvert these submissions in a successful manner. I have well considered the submissions. As would be apparent on the face of Form XX Annexure P-3, the sample of the insecticide was taken in original packing by Harpreet Singh Insecticide Inspector from the premises of M/s Malka Kheti Store, Rajoke Road, Amarkot Tehsil Patti, District Tarn Taran. It is well settled that if the sample is taken from the original packing of the manufacturer and stored for sale in the same condition, the dealer/distributor is entitled to get protection under Section 30(3) of the Act, if the substance/sample drawn was in its original condition. In the instant one, as is being evidenced by Annexure P-3, the sample in question was contained in its original packing of 500 mls. There is nothing on the record to show that the Pretilachlor 50% EC Preet, Batch No. TR-00002 of which sample was drawn was not stored Criminal Misc. No. 13774 of 2009 (O&M) 4 in the same state. If the sample had been tampered with, the original packing would have certainly got disturbed. The same would have not been in the same state. Such being the circumstances, the petitioners being the dealers/distributors cannot be held liable. In consequence of the preceding discussion, this petition is accepted. The complaint bearing caption “State of Punjab Vs. M/s Malka Kheti Store and Others (Annexure P-1) pending in the court of learned Sub Divisional Judicial Magistrate, Patti, the summoning order dated 7.11.2008 Annexure P-2 and all consequential proceedings arising therefrom qua the petitioners are hereby quashed. This petition is disposed of accordingly. (HARBANS LAL) JUDGE January 15, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No