Crl. Misc. No. M-9407 of 2011 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-9407 of 2011 (O&M) Date of Decision: 05.8.2011. Anand Fredrick ........Petitioner Vs. State of Punjab and another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Sandeep Vermani, Advocate for the petitioner. Mr. G.S.Brar, Asstt. A.G. Punjab ..... SABINA, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the criminal complaint No. 06 dated 10/29.1.2008 under Section 3 (k) (i), 17, 18 and 29 of the Insecticides Act, 1968 ('Act' for short) and Rules, 1971 (Annexure P-1) and summoning order dated 29.1.2008 (Annexure P-3). The contents of the complaint (Annexure P-1) reads as under:- 1. That I Darshan Singh, Insecticide Inspector, Gidderbaha has been authorised to file the complaint u/s 27 (5) of the Insecticides Rules, 1971. 2. That I Darshan Singh, Agriculture Development Officer, has been notified as Insecticide Inspector vide notification no. SO90/CA, 46/68/520/91 Crl. Misc. No. M-9407 of 2011 (O&M) -2 - dated 30th October, 1991 (Copy attached). 3. That on 5.9.05, I alongwith Sh. Kaur Singh Assistant Cotton Extension Officer, Gidderbaha visited the shop of M/s Rakesh Pesticides Ward No.3, Grain Market Gidderbaha and I introduced my self as Insecticide Inspector, Gidderbaha and desired to draw sample of Triazophos 40% E.C. I checked the record and found 7 litres of Triazophos 40% EC. I checked the record and found 7 litres of Triazophos 40% E.C. In his stock manufactured by Agrimas Chemicals Ltd., Sikandrabad (UP), I prepared four form XX and Sh. Rakesh Kumar who was the sole proprietor of the firm was present on the spot signed the forms. I tried to associate an independent witness, but nobody was willing to associate. Then I kept Sh. Kaur Singh, Assistant Cotton Extension Officer, Gidderbaha as witness. I also prepared six form XXI. Then I purchased 750 ml. Triazophos 40% EC insecticide from one Litre packing for sampling having Batch no. 050611. Manufactured dated June, 2005. Expiry date May 2007 and divided it in three equal parts put 250 ml. in each three dry, neat and clean iron container which were closed with well screwed iron caps. Then, I put these portions of samples of three separate cloth bags. I also put form XXI in there cloth bags and tightened the cloth bags with threat and sealed each sample portion with my seal Crl. Misc. No. M-9407 of 2011 (O&M) -3 - bearing impression Agri. Deptt. MKT-4, I also wrote particulars about samples on the cloth bags of samples. The samples were taken according to ISI specifications. I asked the concerned dealer to put his own seal on the sample. But he was not having his own seal but put his firm's stamp and signatures on form no. XX. One sealed sample and one form XX was handed over to Sh. Rakesh Kumar on the spot. The Triazophos insecticide was taken on credit basis for which payment was made later on. Other two portions of the sample alongwith relevant record were given to Sh. Kaur Singh ACEO, Gidderbaha, on same day vide letter no. 901 dated 5.9.05 which were submitted to Sh. Kabul Singh ADO Muktsar on 6.9.2005 by Sh. Kaur Singh, ACEO, Gidderbaha Chief Agriculture Officer retained one portion of the sample in his custody and sent second portion of sample to the Directorate of Plant Protection Quarantine & Storage, Central Insecticide Laboratory, Faridabad through Sh. Narinder Kumar Beldar Muktsar vide letter No. 33, dated 28.9.2005. 4. The expert analysed the sample and found 18.02% active ingredient contingent Triazophos instead of 40% Triazophos. Hence the sample does not confirm to ISI specifications. The expert sent his analysis report to Chief Agri. Officer, Muktsar. Copies of analysis report were also sent to dealer and manufacturer firm. Crl. Misc. No. M-9407 of 2011 (O&M) -4 - 5. Then on the request of dealer firm, the second sample was sent by Chief Agri. Officer Muktsar to the Director Central Insecticide Laboratory, Faridabad (Haryana) vide letter no. 54 dated 7.3.06 through Sh. Narinder Kumar Belder for Re-analysis. The expert declared it misbranded again. The active ingredients this time was found to be 28.48% instead of 40%. 6. That the sanction u/s 31(1) was obtained from Joint Director of Agriculture (P.P.), Pb., Chandigarh who is authorized vide notification no. 15/1/93 Agri. 2(10) 1132 dated 10.2.1994. By manufacturing, marketing and selling of this misbranded insecticide, the manufacture firm Agrimas Chemicals Ltd., Sikandrabad (U.P.) has violated Clause 3(k) (1), 17, 18 and 33 of Insecticides Act 1968 and Insecticide Rules 1971. While the dealer M/s Rakesh Pesticides, Gidderbaha has violated the Clause 3 (K) (1) 18 and 29 of the Insecticides Act, 1968 and Insecticide Rules, 1971. Accused Sh. Rakesh Kumar, Proprietor and responsible persons of the firm accused Sh. Ramesh Kulkarni responsible for quality control, Sh. Lakham Chaudhary responsible for conduct of business Sh. Manoj Dua Godown Incharge and And Fredrick M.D. Responsible person and official of Company, Agrimas Chemicals Ltd., Sikandrabad (U.P.) have committed the above said offences.” Crl. Misc. No. M-9407 of 2011 (O&M) -5 - Learned counsel for the petitioner has submitted that the petitioner was not responsible for quality control. Petitioner was the Director of the company and had retired with effect from 28.6.2005 whereas the sample was drawn on 5.9.2005. Learned state counsel, on the other hand, has submitted that the petitioner was the responsible person and official of the company and hence, he was liable to be prosecuted. After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. In the case of State of Haryana vs. Bhajan Lal , , 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie Crl. Misc. No. M-9407 of 2011 (O&M) -6 - 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 no 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 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 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 Crl. Misc. No. M-9407 of 2011 (O&M) -7 - instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” Section 33 of the Act reads as under:- “Offences by companies – (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, or was responsible to the company for the conduct of the business of, the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be Crl. Misc. No. M-9407 of 2011 (O&M) -8 - proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2)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. Explanation- For the purpose of this section.- (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director', in relation to a firm, means a partner in the firm.” In the case of 'State of NCT of Delhi versus Rajiv Khurana, 2010(3) RCR Criminal, 912', the Apex Court has held as under:- “19. In K.K.Ahuja's case (supra) the court Crl. Misc. No. M-9407 of 2011 (O&M) -9 - summarized the position under section 141 of the Act as under:- (i) If the Accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix “Managing” to the word “Director” makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141. (iii) In the case of a Director, secretary or manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses(e) and (f) Crl. Misc. No. M-9407 of 2011 (O&M) -10 - Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1) of the Act. No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section. (iv) Other officers of a company cannot be made liable under sub-section (1) of Section 141. Other officers of a company can be made liable only under sub-section (2) of Section 141, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence. 20. The court further observed that the trauma, harassment and hardship of the criminal proceedings in such cases may be more serious than the ultimate punishment, it is not proper to subject all the sundry to be impleaded as accused in a complaint against a company, even when the requirements of section 138 read with section 141 of the Act are not fulfilled. 21. The legal position which emerges from a series Crl. Misc. No. M-9407 of 2011 (O&M) -11 - of judgments is clear and consistent that it is imperative to specifically aver in the complaint that the accused was in charge of and was responsible for the conduct of business of the company. Unless clear averments are specifically incorporated in the complaint, the respondent cannot be compelled to face the rigmarole of a criminal trial. Thus, when a company is sought to be prosecuted for an offence under the Act as per Section 33, every person who at the time of commission of the offence, was in charge of, or was responsible to the company for the conduct of its business, shall be deemed to be guilty of the offence. In this view of the matter, the complainant must disclose specifically or by necessary inference that a person or persons cited as accused were at the time of commission of the offence in charge, or was responsible to the company for the conduct of its business. A perusal of the complaint reveals that it does not specify the statutory requirements of Section 33 of the Act, so far as the present petitioner is concerned. Moreover, the petitioner was no longer the Director of the company on the date when the sample of insecticide was drawn. The petitioner had already retired from the company and could not be held liable for prosecution. Keeping in view the totality of the facts and circumstances of the case, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law. Accordingly, the present petition is allowed. Criminal complaint No. 06 dated 10/29.1.2008 under Section 3 (k) (i), 17, Crl. Misc. No. M-9407 of 2011 (O&M) -12 - 18 and 29 of the Act, 1968 and Rules, 1971 (Annexure P-1) and and all subsequent proceedings, arising therefrom, including the summoning order dated 29.1.2008 (Annexure P-3) are quashed. (SABINA) JUDGE August 05, 2011 Gurpreet