Punjab-Haryana High Court
N.S.Bawa vs State Of Punjab on 1 August, 2012
Author: Sabina
Bench: Sabina
Criminal Revision No. 631 of 2003 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Revision No. 631 of 2003 (O&M)
Date of decision:1.8.2012
N.S.Bawa
......Petitioner
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Ashim Aggarwal, Advocate,
for the petitioner.
Mr.D.S.Paul, DAG, Punjab.
****
SABINA, J.
This petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 for setting aside the order dated 14.12.2002 (Annexure P-1) and all the subsequent proceedings arising therefrom.
The case of the complainant, as stated in the complaint (Annexure P-2), in brief, is that on 15.6.1993, in the premises of M/s Aman Pesticide Sangowal Road Mehatpur, insecticide i.e. Maneozeb 75% w/w Batch No.93--04.x.046 manufactured by M/s Indofil Chemicals Company Bombay were checked. Samples were drawn Criminal Revision No. 631 of 2003 (O&M) 2 from the said insecticide. One sample was sent to the analyst for analysis. The analyst, vide report dated 19.10.1993, opined that the samples did not conform to the relevant I.S. specifications in respect of its active ingredient content i.e. 82.7% against given strength 75% i.e. Hence, the sample was sub standard due to variation of 7.7%.
In pursuance to the complaint, trial Court summoned the accused to face the trial. The petitioner moved an application for his discharge. Vide impugned order dated 14.12.2002 (Annexure P-1), the said application was dismissed. Hence, the present petition.
Learned counsel for the petitioner has submitted that the petitioner has been impleaded as an accused being Sales Manager of M/s Indofil Chemicals Company, Bombay without impleading the company as an accused. Learned counsel has placed reliance on Aneeta Hada vs. M/s Godfather Travels & Tours Pvt. Ltd. 2012 (2) RCR (Criminal) 854, wherein the three Judge Bench of the Apex Court vide judgment dated 27.4.2012 in Criminal Appeal No.838 of 2008 has held as under:-
"42. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature Criminal Revision No. 631 of 2003 (O&M) 3 and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term "as well as" in the Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words "as well as" have to be understood in the context. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others (1987) 1 SCC 424 it has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in Deewan Singh and others v. Rajendra Prasad Ardevi and others (2007) 10 SCC 528 and Sarabjit Rick Singh v. Union of India (2008) 2 SCC 417 Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the Section make it absolutely unmistakably clear that when the company Criminal Revision No. 631 of 2003 (O&M) 4 can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted.
43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
48 Keeping in view the anatomy of the aforesaid provision, our analysis pertaining to Section 141 of the Act would squarely apply to the 2000 enactment. Thus adjudged, the director could not have been held liable for the offence under Section 85 of the 2000 Act. Resultantly, the Criminal Appeal No. 1483 of 2009 is allowed and the proceeding against the appellant is quashed. As far as the company is concerned, it was not arraigned as an accused. Ergo, the proceeding as Criminal Revision No. 631 of 2003 (O&M) 5 initiated in the existing incarnation is not maintainable either against the company or against the director. As a logical sequeter, the appeals are allowed and the proceedings initiated against Avnish Bajaj as well as the company in the present form are quashed."
Learned counsel for the petitioner has also placed reliance on State of NCT of Delhi vs. Rajiv Khurana 2010 (171) DLT 769, wherein, in para 21, it was held as under:-
"The legal position which emerges from a series 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."
Learned counsel for the petitioner has further submitted that no specific allegation was levelled in the complaint to the effect that the petitioner was responsible for the business of the company. The complaint had been presented after the shelf life of the insecticide had expired. Consequently, the right of the petitioner to get the sample re-analysed in terms of Section 24 (1) of the Insecticides Act, 1968 (the Act for short) had been violated.
Learned State counsel, on the other hand, has submitted that the criminal proceedings against the petitioner were liable to Criminal Revision No. 631 of 2003 (O&M) 6 continue as he was working as Sales Manager of M/s Indofil Chemicals Company Bombay and was responsible for the day to day affairs of the company.
After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed.
The petitioner has been arrayed as an accused without arraying the company as an accused. The petitioner was working as Sales Manager of M/s Indofil Chemicals Company Bombay at the relevant time. A perusal of the complaint reveals that no allegation has been made in the complaint that he was responsible for the day to day business conduct of the company. The company itself is a juristic person and has its own responsibility. In view of the decision of the case in Aneeta Hada's case (supra), the petitioner could not have been prosecuted without arraying the company as an accused.
Further the shelf life of the insecticide had expired before the presentation of the complaint. The insecticide was manufactured in April 1993 and its expiry date was March 1995. However, the complaint in question was presented in February 1996. Thus, by that time, the shelf life of the insecticide had already expired. The petitioner has been denied his valuable right to adduce evidence to controvert the report submitted by the analyst as by the time the complaint was filed the shelf life of the insecticide had already expired. The petitioner could have sought re-analysis of the sample on making request to the Court in terms of Section 24 (4) of the Act.
It has been held by the Apex Court in State of Haryana Criminal Revision No. 631 of 2003 (O&M) 7 v. Unique Farmaid P. Ltd. 1994 (4) RCR (Criminal) 540 that in order to safeguard the right of the accused to have the sample tested from the Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. By the time the respondents were asked to appear before the Court the expiry date of the insecticides was already over and sending of the sample to the Central Insecticides Laboratory at that late stage would be of no consequence.
Para Nos.11 and 12 of the case of Unique Farmaid (supra) are reproduced herein below:-
"11. Sub Section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contravention of other mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over Criminal Revision No. 631 of 2003 (O&M) 8 and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In the State of Punjab v. National Organic Chemical Industries Ltd., JT 1996 (10) SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to deisions of this Court in State of Haryana v. Brij Lal Mittal and others, 1998 (2) RCR (Crl.) 608: 1998 (5) SCC 343 under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970; Chetumal v. State of Madhya Pradesh & another, 1981 (3) SCC 72 and Calcutta Municipal Corporation vs. Pawan Kumar Criminal Revision No. 631 of 2003 (O&M) 9 Saraf & another, 1999 (1) RCR (Crl.) 699: 1999 (2) SCC 400 all under the Prevention of Food Adulteration Act, 1954.
12. It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under Sub Section 4 of Section 24 of the Act. Under Sub Section (3) of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the Court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, Criminal Revision No. 631 of 2003 (O&M) 10 prejudicing them in their defence."
Thus, keeping in view the totality of the facts and circumstances discussed above, the criminal proceedings against the petitioner could not proceed.
Accordingly, this petition is allowed. The impugned order dated 14.12.2002 (Annexure P-1) as well as all the subsequent proceedings arising therefrom, qua the petitioner, are quashed.
(SABINA) JUDGE August 01, 2012 anita