CRM No. M-36849 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-36849 of 2009 Date of Decision: 30.03.2010 M/s Malerkotla Seeds Store & Ors. ....Petitioners Versus State of Punjab ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Arun Chandra, Advocate for the petitioners. Mr. Abhishek Chautala, A.A.G., Punjab ***** 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. This is a petition under Section 482 Cr.P.C. for quashing the complaint No.203 dated 09.11.2006 under Sections 3K(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules 1971 punishable under Section 29(1) of the Insecticides Act 1968 and all consequential proceedings arising thereof. Brief facts of the case are that the petitioner No.1 is the proprietor of M/s Malerkotla Seeds Store, Mullanpur, District Ludhiana who has obtained the licence for selling, stocking and exhibiting for sale of different types of Insecticides/Pesticides including that of M/s Crop Health Products Ltd. As per the allegations made in the complaint, Kirpal Singh, CRM No. M-36849 of 2009 2 Insecticide Inspector inspected the shop of the petitioner on 01.08.2005 and drew the sample of Cartap Hydrochloride 4% G (“Cartriz”4G) from 5 kgs. original/sealed packing, having its Batch No.CH-04/030, manufactured by M/s Crop Health Products Limited and marketed by Biostadt India Limited. In para 5 of the petition, it is stated that as the sample was taken from the dealer, as such, the respondent cannot proceed under Sections 3K(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules 1971 against the petitioners. A protection under Section 30(3) of the Insecticides Act, 1968 is available to the petitioner. As per the averments made in the complaint, the Insecticide Inspector drew the sample of Cartap Hydrochloride 4% G (“Cartriz” 4G) from sealed container. The petitioners were selling insecticide in sealed containers in the original form as obtained from the registered manufacturer. So, no prosecution could be launched against the petitioners. The petitioners did not and could not have ascertained whether the Insecticide, which was brought in sealed cover was adulterated. In the complaint, there is no averment that the sample was not stored in the proper state. Thus, in the absence of such averment in the complaint, the petitioners are entitled to the protection under Section 30(3) of the Insecticides Act, 1968. 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 importer or a duly licensed manufacturer, distributor CRM No. M-36849 of 2009 3 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. Reply has been filed by the State of Punjab. In para 2 of the reply, it is admitted that the sample was taken from the stock of (20x5 kg=100 kgs) Cartap Hydrochloride 4% G (Cartriz 4G) manufactured by M/s Crop Health Products Limited, Ghaziabad and plant at Gajraula (U.P.) and that the sample was taken from the sealed packet out of 5 kgs sealed packets bearing batch No.CH-04/030 marketed by M/s Biostadt India Limited and manufactured by M/s Crop Health Products Limited. This fact is also admitted in para 5 of the reply as under :- “ 5. It is admitted as detail given in the paras 3 and 13 that this sample had been taken from the original sealed packing of 5 kgs packets manufactured by M/s Crop Health Products Limited.” Thus, it is an admitted position that the petitioners are only dealers and not the manufacturer. It is also admitted that the sample was taken from the sealed container. There is no evidence or allegation that it was not properly stored. CRM No. M-36849 of 2009 4 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).” It is not denied that the present petitioners are the dealer and had purchased the sample from the registered manufacturer, namely, M/s Crop Health Products Limited. The respondent had admitted that the sample was taken from the sealed container. There is no allegation that the said seal was tampered with. In fact, it was specifically stated in the reply that the sample was taken from the sealed container and the seal was opened by the Inspector himself. There is also no allegation that the insecticide was not properly stored. 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 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 CRM No. M-36849 of 2009 5 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 view of the above admitted facts and the well settled proposition of law, the present petition is allowed and the complaint No.203 dated 09.11.2006 under Sections 3K(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules 1971 and all consequential proceedings arising out of the said complaint are, hereby, quashed. (NIRMALJIT KAUR) 30.03.2010 JUDGE gurpreet