Punjab-Haryana High Court
Wadhawa Beej Bhandar And Ors. vs State Of Haryana on 7 October, 1997
Equivalent citations: 1998CRILJ1374
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Criminal Misc. No. 8975-M of 1997 has been filed by M/s. Wadhawa Beej Bhandar and others through its proprietor Shri Sushil Kumar and others (petitioners) under Section 482, Cr.P.C. read with Article 227 of the Constitution of India whereby it has been prayed that complaint annexure P/1 filed under Sections 29(1)(a) read with Section 3(k)(1) and Section 17(1)(a) of the Insecticides Act, 1968 be quashed qua them so as to put a-stop to the abuse of the process of Court.
2. It is averred that on 24-12-1992 Assistant plant Protection Officer (G) O/O Deputy Director of Agriculture, Kurukshetra visited the business premises of firm M/s. Wadhawa Beej Bhandar, Pipli and drew a sample of 2-4-D Ethyle Estor 34% EC Batch No. 18 under the provisions of Section 21(1)(a) of the Insecticides Act, 1968 manufactured by accused No. 5 M/s. Heema Pesticides Baraut. The sample was drawn according to the procedure laid down in the Act. At the time of raid, Sushil Kumar was allegedly found present at the business premises of the firm. Three packing of 500 miligram each 2-4-D Ethyle Estor 34% EC-B-No. 18 were taken for sampling. These packing containers were put in the separate polythene bags which were made into sealed parcels with the seal of Insecticides Inspector. Sushil Kumar was allegedly asked to affix his own seal of the cloth bag but he refused to do so. According to the Insecticides Inspector, three parts of sample were prepared and one part was given to Sushil Kumar and the other sample part was sent to the State Quality Control Insecticides Laboratory, Karnal vide DDA letter No. 12311 dated 28-12-92. According to the prosecution, sample was declared misbranded by the Senior Analyst, Quality Control Insecticides, Lab. Karnal. Copy of analysis report was sent to the dealer M/s. Wadhawa Beej Bhandar Pipli under the provisions of Section 24(2) of Insecticides Act, 1968 by the Assistant Plant Protection Officer office of Deputy Director Agriculture, Kurukshetra vide letter No. 18 dated 10-2-1993 and information was sent to M/s. Heema Pesticides vide letter No. 19 dated 10-2-93, regarding sample having been found misbranded by the Senior Analyst, Quality Control Insecticides Lab., Karnal.
3. It is averred by the petitioner that if at all M/s. Heema Pesticides, Baraut manufacturer of this insecticide is liable for having manufactured misbranded insecticide. Neither M/s. Wadhawa Beej Bhandar (Dealer) nor M/s. Pawan & Co. (Distributor) of this insecticide is liable, in view of provisions of Section 30(3) of the Insecticides Act, as when the sample is taken from a sealed packing manufactured by manufacturer and kept by the dealer/distributor in the same state in which it had been obtained from the manufacturer, the manufacturer is liable and not dealer or distributor thereof.
4. This Criminal Misc. Petition has been opposed by the respondent-State of Haryana urging that it is a question of evidence whether sample was taken from original pack. It is again a question of evidence whether petitioners did not know nor they could know with the due diligence that the insecticides was misbranded when the same was acquired by them from the manufacturer. Further it is a question of evidence that petitioners stored insecticide in a proper manner. Section 30(3) of the Insecticides Act reads as follows :-
(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 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 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.
5. In complaint Annexure P/1 itself Assistant plant protection officer (G) (Insecticides Inspector) has mentioned that sample was drawn according to the procedure laid down in the Act, Three packing of 500 miligrams each 2-4-D Ethyle Estor 34% EC-3 No. 18 were taken for sampling. These packing containers were put in the separate polythene bag which were sealed with the seal of Insecticides Inspector. In Criminal Misc. No. 5914 of 1996 decided on 7-8-1995 (1996 (3) RCR 587, Chander Kanta v. State of Punjab 1997 (1) RCR 453; Delhi Agriculture Store v. State of Punjab 1997 (1) RCR 42, in similar circumstances such complaint was quashed against the dealer. In 1997 (1) RCR 453 Supra, it was observed that where a sample of insecticide was taken from the original container and sample was found to be misbranded-liability for prosecution would lie oh manufacturer and not on the dealer. It would bear repetition that in this case sample was taken from sealed container which was taken by way of sampling. It would be travesity of justice if prosecution is dragged against dealer/distributor and their dragging in prosecution will be abuse of the process of Court. In the complaint, there is no allegation, that insecticides was stored by the dealer in improper condition or that dealer could after exercising reasonable diligence have ascertained that insecticides was contravening any of the provisions of the Insecticides Act. In the complaint there is no allegation that insecticides was not properly stored and did not remain in the same state as when he acquired it.
6. In State of Haryana (Appellants) v. Ch. Bhajan Lal (Respondents) AIR 1992 SC 604 : 1992 Cri LJ 527 their lordships of the Hon'ble Apex Court have laid down that High Court may in exercise of powers under Articles 226 or Section 482, Cr.P.C. interfere in proceedings relating to cognizable offence to prevent abuse of process of any Court or otherwise to secure ends of justice. Hon'ble Supreme Court, however, sounded a note of caution to the High Court that this power shall be exercised sparingly and that too in the rarest of rare cases.
In this case Criminal prosecution should be quashed against the dealer and the Distributor at the outset because if the prosecution is taken further to its logical end, that would be an exercise of futility. For misbranding an insecticide dealer/ distributor is not liable if it appears on the face of it that dealer/distributor had stored the insecticide in the same condition in which it had taken from the manufacturer in sealed pack, Object of criminal prosecution is not to prosecute the so called offender but to prosecute him to vindicate the larger interests of the society.
7. For the reasons given above this Criminal prosecution is quashed against dealer and Distributor (petitioners). With these observations this Criminal Misc. petition is accepted.