Crl. Misc. No.M-21010 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-21010 of 2009 Date of Decision: 17.05.2010 K.C. Sharma and others ....Petitioners Versus Union of India ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Rakesh Verma, Advocate for the petitioners. Mr. Anil Rathee, Advocate for Union of India-respondent. ***** 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. (ORAL) This is a petition under Section 482 Cr.P.C for quashing of complaint no.103 dated 08.08.2008 under Section 3(k)(i),17,18,29 and 33 of Insecticide Act, 1968 read with Insecticide Rules, 1971 titled as “Union of India vs. M/s National Seed Corporation and others” as pending in the Court of Chief Judicial Magistrate, Jalandhar, Summoning Order P-2 and all consequential proceedings arising out of the said complaint. Brief facts of the case as stated are that petitioners No.1 and 2 are the employees of petitioner No.3 i.e. M/s National Seed Corporation (A Govt. of India Undertaking). Petitioner no.3 is having the seed processing unit at Jalandhar and it does not sell any insecticide to the farmers and it has no sale point in the State of Punjab to sell any insecticide to the Crl. Misc. No.M-21010 of 2009 2 farmers. The unit put its demand for raw material time to time to its Head Office at Delhi which supplies the raw material to the unit accordingly. The routine course of business for the seed processing unit at Jalandhar, Thiram 75% WS was sent by the Head Office. This Thiram 75% WS was manufactured by M/s Swarup Chemicals Pvt. Ltd., Lucknow, which is a registered and authorized manufacturer. This manufacturing company has been authorized by the Govt. of Punjab to sell its material in the State of Punjab. On 29.10.2007, the complainant visited the premises of petitioner No.3 and drew a sample of Thiram 75% WS, batch no.TW-730, manufacturing May-2007 and Expiry April-2009 while withdrawing 100x3=300 gms material out of one 20 kg. originally sealed and packed bag of the manufacturing company i.e M/s Swarup Chemicals Pvt. Ltd. Lucknow, a registered and authorized manufacturing company. The insecticide Analyst, Regional Pesticide Testing Lab, Kanpur analysed the sample in question. The test report dated 17.12.2007 of the sample of Thiram 75% WS was received in the Office of CIPMC, Jalandhar dated 13.02.2008 declaring the sample does not confirm the relevant IS specification in respect of their active ingredients contents i.e. 56.93% against 75% WS i.e. a variation of 18.07% thus the sample was misbranded. Accordingly, a complaint was filed by the Central Insecticide Inspector and the petitioner has been accordingly summoned for violation of the provision of Section 3(k)(1),17,18,29 and 33 of the Insecticide Act, 1968. The present petition has, therefore, been filed under Section 482 Cr.P.C for quashing of the said complaint and the summoning Order 08.08.2008 on the ground that the sample was taken from the sealed and packed bag which was manufactured by M/s Swarup Chemicals Pvt. Ltd. Lucknow. Thus, no offence can be said to be made out against the present Crl. Misc. No.M-21010 of 2009 3 petitioners as there is no allegation that the said sealed bag, from which the sample was taken, was tampered with by the petitioner's firm in any way. Para 4 of the petition reads as under :- “ 4. That on 29.10.2007, the complainant visited the premises of petitioner No.3 and drew a sample of Thiram 75% WS, batch no.TW-730, manufacturing May-2007 and Expiry April-2009 while withdrawing 100x3=300 gms material out of one 20 kg. originally sealed and packed bag of the manufacturing company i.e M/s Swarup Chemicals Pvt. Ltd. Lucknow, a registered and authorized manufacturing company. Learned counsel states that it is an admitted case of the respondent that the sample was drawn from the sealed and packed container. In this regard, learned counsel has referred to para 4 of the reply, on merits, which reads as under :- “ 4. That the averment made in para 4 of the Criminal Misc. Petition need no comments being matter of record.” Moreover, there is no averment in the complaint that the sample was not stored properly. In the absence of such averment, the petitioner is otherwise 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 Crl. Misc. No.M-21010 of 2009 4 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 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. 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).” 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 Crl. Misc. No.M-21010 of 2009 5 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 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.” In another similar case titled as Surinder Kumar and another vs. State of Punjab through Insecticide Inspector, Nawanshahr, reported in Crl. Misc. No.M-53382 of 2007, where a similar reply was given to the specific averment of the petitioners, this Court vide Order dated 26.04.2010 was pleased to quash the offences under the Insecticide Act. Thus, it is not disputed that the petitioner No.3 is having the seed processing unit at Jalandhar and is a Government of India Crl. Misc. No.M-21010 of 2009 6 undertaking. It is also not denied that the sample which was drawn had been manufactured by approved manufacturer. There is no material available on file to indicate that the insecticide was stored in violation of the rules and rather it is admitted that the sample was taken from the sealed bag. Further, there is no allegation that the said contents of the sealed bag were ever tampered with. Thus, the petitioner is not responsible for the contents of the bag from which the sample was drawn. Accordingly, the continuation of the proceedings against the petitioners would be an abuse of the process of law. In view of the above admitted facts and the well settled proposition of law, the present petition is allowed and the complaint under Sections 3(k)(i),17,18,29 and 33 of Insecticide Act, 1968 read with Insecticide Rules, 1971 titled as “Union of India vs. M/s National Seed Corporation and others” as pending in the Court of Chief Judicial Magistrate, Jalandhar, Summoning Order P-2 and all consequential proceedings arising out of the said complaint are, hereby, quashed. (NIRMALJIT KAUR) 17.05.2010 JUDGE gurpreet