Gujarat High Court
Swastik Pesticides Ltd vs State Of Gujarat on 28 July, 2023
NEUTRAL CITATION
R/CR.MA/4694/2014 ORDER DATED: 28/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4694 of 2014
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SWASTIK PESTICIDES LTD & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR.P B SHARMA(3778) for the Applicant(s) No. 1,2,3
MS. KRINA CALLA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 28/07/2023
ORAL ORDER
1. By filing the present Application under Section 482 of the Code of Criminal procedure, 1973, the Applicants [Original Accused Nos.5, 6 and 7] have prayed for the following reliefs:
"(a) Kindly admit this present Cr. Misc. Application.
(b) Allow this Cr. Misc. Application by Quashing the Complaint and Cognizance taken below Exh. No.1 in the C.C.No. 44/2012 in the file of Judicial Magistrate First Class Court, Vanthali.
(c) Pending admission herein till the final disposal of the present Cri. Misc. Application, grant stay as to execution, implementation and further proceeding in reference to C.C. No. 44/2012, filed before the JMFC Court, Vanthali, so far it relates to the present petitioners in the interest of justice.
(d) Grant such other relief as deemed and proper in the interest of justice."Page 1 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023
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2. The factual matrix of the matter are such that on 2.2.2011, the Agricultural Officer, Vanthali - Shri P.K.Trapasiya had collected three samples of Insecticide namely Monocrotophos - 36% S.L. (Trade Name - SHAKTIMAAN), Batch No. - SPC/20031. The Date of Manufacture of the said samples was October 2010 and the Date of Expiry was March 2012. The said samples were collected by the said Agricultural Officer from Shree Jagtat- E-Village Bazaar, Besides Hudko, Vanthali, District Junagadh in the presence of two witnesses.
2.1 Out of the said three samples collected, one sample was handed over to the representative of the Firm from which it was taken, the other sample was sent to the Insecticide Analyst, Insecticide Laboratory, Junagadh on 4.2.2011 and the third sample was preserved as Muddamal. The Insecticides laboratory vide its Report dated 10.2.2011 had reported that in the sample of Monocrotophos, the active element of Monocrotophos was found to be 29.34% S.L. instead of 36% S.L. Thus, the sample was found to be miss-branded in view of the provisions of Section 3(k) of the Insecticides Act 1968, and thus, the offence punishable under Section 29(1)(a) of the Insecticides Act was found to have been committed.
2.2 The Agricultural Officer Shri P.K.Trapasia therefore issued a show- cause notice to the Firm namely Shree Jagtat-E-Village Bazaar along with a copy of the Analysis Report of the Insecticide Laboratory. The said Shree Jagtat-E-Village Bazaar vide communication dated 30.3.2011 submitted its explanation to the show-cause notice contending that the Insecticide in question was purchased by it from Shree Sales Corporation, Rajkot and a copy of the bill in that regard was also produced.
2.3 The Agricultural Officer namely Shri P.K.Trapasia issued a show-cause notice to Shree Sales Corporation on 20.4.2011 asking it to show-cause as to why necessary action should not be taken against it. Since, no reply was Page 2 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023 NEUTRAL CITATION R/CR.MA/4694/2014 ORDER DATED: 28/07/2023 undefined received from Shree Sales Corporation, a reminder came to be addressed by the Agricultural Officer to the said Shree Sales Corporation on 23.5.2011.
2.4 On 8.7.2011, Shree Sales Corporation replied to the show-cause notice, stating that; it had not sold the Insecticide in question to Shree Jagtat-E-Village Bazaar. Subsequently, vide communication dated 26.8.2011, Shree Sales Corporation informed the Agricultural Officer that it had sold the Insecticide in question to Shree Jagtat-E-Village Bazaar and that a bill in that regard was also found. It was further stated in the reply that the said Insecticide was procured by it from Swastik Pesticides Limited Muzzafarnagar, i.e. the present Applicant No.1 (hereinafter referred to as "the Applicant No.1 - Company"). On 11.7.2011, a show-cause notice came to be issued by the Agricultural Officer to the Applicant No.1 - Company indicating that it had violated the provisions of Section 17(1)(a) of the Insecticides Act and had thus committed an offence, and the Applicant No.1 - Company was thereby asked to tender its explanation in that regard. The said notice was replied by the Applicant No.1 - Company vide communication dated 19.7.2011 inter alia stating that it wanted to get the sample re-tested under the provisions of Section 24(3) of the Insecticides Act. Admittedly, the said communication was received in the office of the Agricultural Officer in the month of August 2011. On 17.10.2011, the Director of Agriculture, Gujarat State, Gandhinagar, granted its consent for prosecuting six persons including the present Applicant No.1 - Company and Applicant No.3 - Regional Manager - M/s Swastik Pesticides Ltd. for the offence punishable under Section 29(2)(1) of the Insecticides Act. On the basis of the said consent, Respondent No.2 - Agricultural officer, Vanthali, on 2.3.2012, lodged a complaint in the Court of learned Principal Civil Judge and Judicial Magistrate First Class, Vanthali, District Junagadh for offence punishable under Section 29(1) of the Insecticides Act. The learned Court ordered to register complaint as criminal case and issued summons to the accused persons returnable on 31.5.2012.
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Being aggrieved and dissatisfied with the same, the Applicants have preferred the present Application.
3. Heard learned Advocate Mr. P.B.Sharma for the Applicants. He submitted that the present Applicant No.1 is the manufacturer of the Insecticide in question whereas Applicant No.2 is the Officer nominated by the Applicant No.1 - Company as responsible person for the State of Gujarat and Applicant No.3 is the Regional Manager of Applicant No.1 Company. He submitted that no specific role whatsoever has been attributed to the present Applicants in commission of the offence in question. There is no averment in the complaint that the Applicant Nos. 2 and 3 were Incharge or were responsible to the Company for the conduct of the business of the Company as required under Section 33 of the Insecticides Act. He further submitted that the samples were collected on 2.2.2011 by one P.K.Trapasia whereas the complaint in question came to be lodged by present Respondent No.2. Thus, the person collecting the sample and the person lodging the complaint are two different persons. The complaint in question ought to have been lodged by the person who had actually collected the samples on 2.2.2011. Thus, the complaint itself is vitiated due to the aforesaid fact. He further submitted that the samples were collected on 2.2.2011 and the same were found to be misbranded on 14.2.2011, the complaint in that regard came to be lodged on 2.3.2012. The consent was given by the State Government for lodging the prosecution on 13.10.2011 after getting written consent from the Government. No complaint was filed for a considerably long period. The delay caused in lodging the complaint has not been explained in the complaint. He further submitted that the shelf life of the sample collected was due to expire in the month of March 2012 and the complaint came to be lodged on 2.3.2012 and the Applicants were asked to remain present before the Court on 31.5.2012 i.e. after the shelf life of the samples collected was expired. Thus, the Applicants herein were deprived of their indefeasible right of the samples getting retested under Section 24(3) and Page 4 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023 NEUTRAL CITATION R/CR.MA/4694/2014 ORDER DATED: 28/07/2023 undefined Section 24(4) of the Insecticides Act. He submitted that the Applicants herein, vide communication dated 19.7.2011, had made their intentions clear to the Agricultural Officer of getting the samples retested in view of the provision of Section 24(3) of the Insecticides Act. Though the said letter was received by the Agricultural Officer in the month of August 2011, no action whatsoever was taken by the Agricultural Officer to get the samples retested. He also submitted that under Sub Section (6) of Section 22 of the Insecticides Act, a duty is cast upon the Insecticide Inspector to restore one portion of a sample so divided or one container as the case may be, to the person from whom he takes it. A duty is also cast upon the Insecticide Inspector [in the present case, the Agricultural Officer], to produce one sample to the Court before which the proceedings are initiated. This would enable the Applicants herein to exercise their right under sub Section (4) of Section 24 of the Insecticides Act. In the present case, since the shelf life of the sample in question had already expired in the month of March 2012 and since the Applicants herein were asked to appear before the Court on 31.5.2012, the Applicants could not exercise their right under sub Section (4) of Section 24 of the Insecticides Act which has resulted into grave injustice to the present Applicants. He submitted that in the background of the aforesaid facts, the present complaint is not maintainable against the present Applicants, and therefore submitted to allow the present Application and quash and set aside the complaint being CC No. 44/2012 registered with the Court of learned JMFC, Vanthali at Junagadh.
5. Learned Advocate has sought to rely upon the following judgments in support of his submission:
(i) State of Punjab v. National Organic & Chemical Industries Ltd.
1996 (11) SCC 613
(ii) State of Haryana v. Unique Farmaid P. Ltd. & Ors.
SC - 2000 Cri. L.J 2962
(iii) M/s Gupta Chemicals Pvt. Ltd. & Ors. v. State of Rajasthan & Anr.
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NEUTRAL CITATION
R/CR.MA/4694/2014 ORDER DATED: 28/07/2023
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JT 2002 (Suppl.1) SC 516
(iv) State of NCT of Delhi v. Rajiv Khurana
SC - AIR 2010 SC 2986
(v) Northern Minerals Ltd. v. Union of India & Anr.
SC - 2010 Cr. L.R. (SC) 729
(vi) Adalat Prasad v. Rooplal Jindal & Ors.
SC - AIR 2004 SC 4674
(vii) M/s Swastik Pesticides & Chemicals v. State of Gujarat
Guj. H.C. - G.L.R. 2005(3) 2027
6. The Application is opposed by learned APP Ms. Krina Calla. She submitted that on 2.2.2021, the samples were collected from Shree Jagtat-E-
Village and, upon examination of samples by the Insecticide Laboratory, it was found that the same was misbranded. On inquiry, Shree Jagtat-E-Village intimated that it had purchased the said sample from Shreeji Sales Corporation. Therefore, a notice came to be issued to Shreeji Sales Corporation, who initially denied having sold any such sample to Shree Jagtat-E-Village. However, subsequently, it had admitted about sale of sample in question to Shree Jagtat-E-Village. Though the said Shreeji Sales Corporation had found out the bills as regards purchase of the samples in question from the present Applicants on 26.8.2011, the same were furnished to the Respondent No.2 only on 17.3.2012. She submitted that as per the provision of sub Section (3) of Section 24 of the Insecticides Act, the only person from whom the sample is taken has a right to get the same retested by Central Laboratory. Since, in the present case, the sample was not collected from the present Applicants, they had no right of the same getting retested either under Section 24(3) of Section 24(4) of the Insecticides Act. She also submitted that enough opportunities were granted to the accused persons for exercising their right for getting the samples retested. However, the said right was not exercised within the stipulated period. She also submitted that previously also the Applicants have Page 6 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023 NEUTRAL CITATION R/CR.MA/4694/2014 ORDER DATED: 28/07/2023 undefined been prosecuted for similar such offences qua other products. Thus, the Applicants are habitual for committing such offences. She therefore submitted to dismiss the present Application.
7. Heard learned Advocates for the parties and perused the record.
8. The undisputed facts emerging from the record are to the effect that the samples in question were collected by the Agricultural Officer Shri P.K.Trapasia on 2.2.2011. The Date of Manufacturing of the sample was October 2010 and the Date of Expiry was March 2012. After the samples were collected on 2.2.2011, one sample was sent to the Insecticides Laboratory, Junagadh for examination. The said Laboratory, vide its report dated 10.2.2011, notified that the active element of Monocrotophos in the sample collected from Shree Jagtat-E-Village was 29.34% S.L. instead of 36% S.L. Thus, the sample was found to be misbranded. Upon receipt of the said report, a notice was issued by the Agricultural Officer on 14.2.2011 to Shree Jagtat-E- Village asking its explanation in this regard. Vide its letter dated 21.3.2011 Shree Jagtat-E-Village informed the Agricultural Officer that it had purchased the said sample from Shree Sales Corporation and that there was no malafide intention on its part to commit any such offence. It was only acting as a retailer of the sample in question. Upon receipt of the said communication from Shree Jagtat-E-Village, a show-cause notice came to be issued to Shree Sales Corporation, Rajkot along with a copy of the report of the Laboratory. The said notice was replied by Shree Sales Corporation on 8.7.2011 stating that it had not sold the sample in question to Shree Jagtat-E-Village. Subsequently, vide letter dated 26.8.2011, it was informed by Shreeji Sales Corporation to the Agricultural Officer that it had sold the said sample to Shree Jagtat-E-Village and a bill in that regard was also found.
9. On 11.7.2011, a show-cause notice came to be issued by the Page 7 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023 NEUTRAL CITATION R/CR.MA/4694/2014 ORDER DATED: 28/07/2023 undefined Agricultural Officer to the present Applicant No.1 asking it to show-cause as to why legal proceedings should not be instituted against it as the samples manufactured by it was found to be misbranded. Upon receipt of said notice, the Applicant Company, vide letter dated 19.7.2011, had sent its reply to the Agricultural Officer, indicating that the Company intended to get the sample retested in view of the provision of Section 24(3) of the Insecticides Act. The said reply was received in the office of Deputy Director, Agriculture in the month of August 2011. The said fact also finds reference in the complaint lodged by present Respondent No.2 in paragraph 9. Thus, it is an admitted position that a notice was issued by the Agricultural Officer to the present Applicants on 11.7.2011 which was replied by the Company on 19.7.2011 and the said reply was also received by the Agricultural Officer and the Company had made its intention to get the sample retested very clear. Thereafter, on 13.10.2011, the Director of Agriculture, Gujarat State, Gandhinagar had granted its consent of filing the present complaint. The said office order appears to have been received in the office of the Agriculture Officer on 2.11.2011 as reflected in Annexure-B to the present Petition whereas the complaint in question came to be lodged on 2.3.2012 i.e. after a period of four months. There is nothing in the complaint or in the affidavit-in-reply filed by the Respondent explaining as to why the complaint came to be lodged after a period of four months from the date of consent. It is required to be noted at the cost of repetition that the shelf life of the samples collected was to expire in the month of March 2012. The Applicants herein, in their reply to the Agriculture Officer dated 19.7.2011, had made their intention clear of getting the samples retested by the Central Laboratory. Though the said reply was received by the Agricultural Officer in the month of August 2011, no action whatsoever appears to have been taken by the Respondents for sending the samples to the Central Laboratory for retest. As per the provisions of sub Section (3) of Section 24 of the Insecticides Act, the right ensuing from the said provision is required to be exercised within a period of 28 days from the receipt of the Page 8 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023 NEUTRAL CITATION R/CR.MA/4694/2014 ORDER DATED: 28/07/2023 undefined report of the Insecticides laboratory. In the present case the Applicants herein had been issued notice by the Agricultural Officer on 11.7.2011, and on 19.7.2011, the Applicants had expressed their intention to get the samples retested. Thus, the right ensued under Section 24(3) of the Insecticides Act was exercised by the present Applicants in the stipulated period. It is sought to be contended on behalf of the Respondents that it is only the person from whom sample is collected, has right to get the same retested under Section 24(3) of the Insecticides Act. This submission is misconceived in view of the fact that the Applicants herein have been sought to be prosecuted for the offence punishable under Section 29(1) of the Insecticides Act as being the manufacturers of the sample in question and, when the Applicants are sought to be prosecuted, the right under Section 24(3) is very much available to the present Applicants also. Assuming for the sake of argument that no such right was available to the present Applicants, the Agricultural Officer would not have issued notice to the present Applicants on 11.7.2011. Respondent No.2 was very much aware about the fact that the shelf life of the sample in question was to expire in the month of March 2012. Despite the said fact, no action whatsoever was taken for sending the sample for retest to the Central Laboratory as demanded by the present Applicants. Not only that, the complaint in question was also lodged on 2.3.2012, wherein, the summons came to be issued to the present Applicants, asking them to remain present on 31.5.2012. By that time the shelf life of the sample had already expired. Thus, the Applicants have been deprived of their indefeasible right of getting the sample retested and that too intentionally.
10. The Hon'ble Apex Court in its judgment in case of M/s Gupta Chemicals Pvt. Ltd. & Ors. v. State of Rajasthan & Anr. reported in JT 2002 (Suppl.1) SC 516 in paragraph 12 has observed as under:
"12. From our perusal of the aforequoted provisions it is manifest that Page 9 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023 NEUTRAL CITATION R/CR.MA/4694/2014 ORDER DATED: 28/07/2023 undefined ordinarily in the absence of any material to the contrary, the report of the insecticides analyst will be accepted as final and conclusive of the material contained therewith. This is however subject to the right of the accused to have the sample examined by the central insecticides laboratory provided he communicates his intentions for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this right vested under the statutes valuable for the defence, particularly in a case where the allegations are that the material does not conform to the prescribed standard. As noted earlier in the present case the appellants had intimated the insecticide inspector their intention to have the sample tested in the central insecticides laboratory within the prescribed period of 28 days of receipt of the copy of the state analyst report, yet no step was taken by the inspector either to send the sample to the central insecticides laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the inspector, it has not been possible for the appellants to have the sample examined by the central insecticides laboratory and in the meantime, the shelf-life of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of court. The High Court was not right in dismissing the petition filed under Section 482 of Cr.P.C."
11. In another judgment of the Hon'ble Apex Court in case of Northern Mineral Ltd. v. Union of India & Anr. reported in 2010 Cr. L.R. (SC) 729 the Hon'ble Apex Court has held that; under Section 24(3) and 24(4) of the Insecticides Act, the accused has a valuable right of retesting the sample. In a similar state of facts, the Hon'ble Apex Court had observed that the valuable right of the accused was defeated by the conduct on the part of the complaint Page 10 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023 NEUTRAL CITATION R/CR.MA/4694/2014 ORDER DATED: 28/07/2023 undefined and hence the continuation of criminal prosecution was an abuse of process of court.
12. It is also contended on behalf of the Applicants that no specific role whatsoever has been attributed to the present Applicants as required under Section 33 of the Insecticides Act. The Applicant No.1 - Company vide its communication dated 19.7.2011 had intimated the Agricultural Officer that Mr. Suryapal Singh i.e. present Applicant No.2, was responsible person of the Company for the State of Gujarat. Despite the said fact, the present Applicant No.3 has been arraigned as an accused in the complaint without any averments as required under Section 33 of the Insecticides Act. The Applicant No.3 appears to have been arraigned as an accused in the complaint simply because he happened to be the Regional Manager of the Company. The Hon'ble Court in its judgment in case of M/s. Cheminova India Ltd. v. State of Punjab & Ors. reported in 2021 (8) SCC 818 has observed:
"In view of the specific provision in the Act dealing with the offences by companies, which fixes the responsibility SLP(Crl.) No. 4144 of 2020 and the responsible person of the Company for conduct of its business, by making bald and vague allegations, 2nd Appellant - Managing Director cannot be prosecuted on vague allegation that he being the Managing Director of the 1st Appellant - Company, is overall responsible person for the conduct of the business of the Company and of quality control, etc."
13. In view of the aforesaid observations made by the Hon'ble Apex Court, the Applicant No.3 could not have been arraigned as an accused in the complaint in question.
13.1 At this stage, it is also required to be noted that the Director of Agriculture in its Officer Order dated 13.10.2011, has not given consent to Page 11 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023 NEUTRAL CITATION R/CR.MA/4694/2014 ORDER DATED: 28/07/2023 undefined prosecute Applicant No.2. As per the provisions of Section 31(1) of the Insecticides Act, no prosecution for an offence under the Insecticides Act can be instituted without any written consent. Therefore, no complaint could have been lodged against Applicant No.2.
14. In the Affidavit-in-Reply filed by the present Respondent No. 1 and 2, it is sought to be contended that it was only on 17.3.2012 that it was reported to the Agricultural Officer that the sample in question were procured from the present Applicants. It has been specifically averred in the Affidavit-in-Reply that after the initiation of proceedings before the JMFC Court Vanthali, belatedly, for the first time on 17.3.2012 reply was addressed placing bills on record. By contending so, it is sought to be canvassed that it was only on 17.3.2012 that the Agricultural Officer came to know that the samples in question were manufactured by the present Applicant No.1- Company. The said statement, which is made on Affidavit, appears to be false, in view of the fact that, in the complaint in question itself, it has been specifically averred by Respondent No.2 that a notice was issued by him to the Applicant No.1 Company on 11.7.2011 which was replied by the Company on 11.8.2011. Thus, it is not correct on the part of the Respondents to contend that it was only on 17.3.2012, it was made clear that the sample was manufactured by the Applicant No.1- Company.
15. In view of the aforesaid discussion, the present Application deserves to be allowed and hence the same is hereby allowed. The Complaint being C.C.No. 44/2012 in the file of Judicial Magistrate First Class Court, Vanthali, District Junagadh is hereby quashed and set aside qua the present Applicants. Rule is made absolute.
(M. R. MENGDEY,J) J.N.W Page 12 of 12 Downloaded on : Sat Sep 16 23:17:52 IST 2023