Punjab-Haryana High Court
Ravi Parkash S/O Shri Gian Chand And Anr. vs State Of Punjab on 14 April, 1991
Equivalent citations: 1991CRILJ2538
JUDGMENT Jaisingh Sekhon, J.
1. The first controversy involved in this petition is, whether a dealer of insecticides contained in sealed tins can be prosecuted for the offences Under Sections 3(k)(i), 17, 18 and 13 punishable Under Section 29 of the Insecticides Act read with Rule 27(5) of the Insecticides Rules, 1971. The second controversy is regarding the applicability of the provisions of Section 23 of the Act qua the liability of the Chairman and Managing Director of the manufacturing company.
2. The brief re'sume' of facts relevant for the disposal of this petition figuring in the complaint is that M/s. Duggal Pesticides, village Mamdot, District Ferozepore was dealing in pesticides and insecticides under the licence issued by the Licensing Authority. On 16-12-1987 Insecticides Inspector Paramjit Singh alongwith others took three sealed containers of Knockweed (35 Ethyl Easter 34.2% EC) of Batch No. 005 each measuring one litre in the presence of Ravi Parkash proprietor of M/s. Duggal Pesticides. On analysis it was found that the same does not conform to the relevant ISI specifications qua the active ingredient test requirement as the sample contained 27.3 per cent instead of 34 per cent active ingredient and thus it was found misbranded under the provisions of Section 3(k)(i) of the Act. This insecticide was manufactured by M/s. Moscot Agro Chemicals Pvt. Ltd. Bangalore. On receipt of the test report, the Insecticides Inspector Ferozepore filed a complaint for the above-referred offences against Ravi Parkash, Proprietor of M/s Duggal Presticides Village Mamdot, District Ferozepore and Shri S.K. Sheshadri, Chairman and Managing Director of the manufacturing company. The trial Court summoned both these petitioners to face trial for the above-referred offences. Ravi Parkash accused-petitioner through this petition seeks the quashment of the complaint and the further proceedings resulting therefrom on the ground that he was not liable as he was neither the agent nor the distributor nor the manufacturer of the said insecticides and thus the provisions of Sub-section (8) of Section 30 of the Act are applicable in his case and fully exonerate him. Shri S.K. Sheshadari Chairman and Managing Director of the Company contends that there being no allegation in the complaint that he was incharge of or was responsible to the company for the conduct of the business of the company, the provisions of Section 33 of the Act are not attracted in his case.
3. The respondents had resisted this petition on the ground that it will be a matter of evidence yet to be recorded by the trial Court to conclude whether M/s. Duggal Pesticides is agent of the manufacturing company or not and that Mr. S.K. Sheshadri being Chairman and Managing Director of the Manufacturing company, it is to be presumed that he is incharge of the company and responsible to the company for the conduct of the business of the company.
4. I have heard the learned counsel for the parties besides perusing the record.
5. The apex Court in C.A. No. 4612 of 1989 in S.L.P. 6661 of 1984. Messrs Kisan Beej Bhandar, Abohar v. Chief Agricultural Officer, Ferozepur on 10-11-1989, while upsetting the decision of the Division Bench of this Court partaining to the cancellation of the licence under the Insecticides Act, 1968, in the last paragraph of the judgment had observed as under :--
"The High Court took the view that by enacting Sub-section (1) of Section 30 of the Act, Parliament had taken out the element of mens rea from consideration and, therefore, knowledge was not at all material. Appellant's counsel has argued that protection of Sub-section (3) is available not only to prosecution but also to every contravention of the Act and cancellation of licence for contravention of the act is also a matter covered by Sub-section (3). We are inclined to accept the submission and take the view that whether it is prosecution or contravention leading to cancellation, Sub-section (3) applies. 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 mis-branding 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 the facts once the appellant's contention that it was a sealed tin intact has been found, the burden that lay on him under the provisions of Sub-section (3) had been satisfactorily discharged, even in the matter of considering the question of cancellation of licence and, therefore, his licence should not have been cancelled. We allow the appeal, reverse the order of the High Court and the authorities and restore the licence. The appeal is disposed of accordingly. No costs."
A bare glance through the same leaves no doubt that that Apex Court while discussing the controversy whether the provisions of Sub-section (1) of Section 30 of the Act had taken away the element of mens rea from consideration, had further observed that the provisions of Sub-section (3) of Section 30 would not only be available to the prosecution, but to every contravention of the Act including the cancellation of licence for contravention of the provisions of the said Act. Thus, there is absolutely no doubt that a person being prosecuted for contraventing the provisions of this Act can take up the defence embodied in Sub-section (3) of Section 30 of the Act. The provisions of Section 30 of the Act read as under :--
"30. Defences which may or may not be allowed in prosecutions under this Act.
(1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Act to prove merely that the accused was ignorant of the nature or quality of the insecticide in respect of which the offence was committed or of the risk involved in the manufacture, sale or use of such insecticide or of the circumstances of its manufacture or import.
(2) For the purposes of Section 7, an insecticide shall not be deemed to be misbranded only by reason of the fact that --
"(a) there has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or the preparation of the insecticide as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the insecticide or to conceal its inferior quality or other defect; or
(b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidable become intermixed with it.
(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 licenced 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 and when he acquired it."
The perusal of the above referred provisions reveal that a person not being the importer or a manufacturer of an insecticide or an agent for the distribution thereof, shall not be liable for the contravention of any of the provisions if he proves : (1) that he acquired the insecticide from an importer or duly licenced manufacturer, distributor or dealer thereof; (2) that he did not know and could not, with reasonable diligence, know that the insecticide in any way contravened any of the provisions of this Act and (3) that the insecticide while in his possession was properly stored and remained in the same state as when he acquired. Thus, in other words, a person facing prosecution under the provisions of this Act has to prove all the three above-referred requirements of Sub-section (3) of Section 30 in order to get himself absolved from the criminal liability. In the case in hand, Ravi Parkash accused-petitioner properitor of M/s. Duggal Pesticides had simply averred that he is a dealer of pesticides under a licence issued by the District Agricultural Officer Ferozepore, besides producing on the file a copy of the bill Annexure P. 3 showing that he had purchased some knockweed insecticide on 10th Dec. 1987 from M/s Pest Control Service, Subzi Mandi, Ferozepore City, but there is no evidence on the file whether this firm M/s. Pest Control Service opposite Subzi Mandi, Ferozepore, from which he has purchased the insecticides is a duly licence distributor or the dealer thereof. Thus, it would be a matter of evidence yet to be led by the accused-petitioner before the trial Court that the provisions of Section 30(3) are fully attracted in his case and he stands exonerated from the criminal liability for the above-referred offences.
6. There is no doubt that the provisions of Section 33 of the Act make liable the official of the manufacturing company who was incharge of or was responsible to the company for the conduct of the business of the company as provided in Sub-section (1) of that section. Proviso to that section provides that if such official of the company proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, then he would not be liable for criminal action regarding the violation of the provisions of this Act. In the complaint, there is no specific averment that Shri S.K. Sheshadhari is the officer incharge of the company or was responsible to the company for the conduct of the business of the company except that he has been described as Chairman-cum-Managing Director of the company. The very designation of Chairman and Managing Director of the Company implies that he is overall incharge of the company. Faced with this difficulty, the learned counsel for the petitioner placing reliance upon the observations of the Apex Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67 : (1983 Cri LJ 159) contends that in that case the Directors of the company were exonerated from prosecution under the Prevention of Food Adulteration Act by holding that there was no evidence on the file whether the Directors were incharge of the manufacturing company of the adulterated food item while the case of the Manager of such production was distinguished by holding that ex facie he is incharge of such production. The working of a Director of a Company being altogether different from that of Chairman and the Managing Director, the above-referred observations of the Apex Court are thus not applicable to the facts of the case in hand.
7. A Single Bench of this Court in Brahm Vasudeva v. K.L. Bajaj 1987 (2) Rec. Cri. R. 414 had also exonerated the Managing Director by holding that as there were no specific averments in the complaint against the Managing Director of the Company being in any way concerned in the manufacture of excisable goods without applying for or holding manufacturing licence.
8. In the present case, the Chairman-cum-Managing Director of the company being the overall incharge of the affairs of the company and there being no averment in this petition that the Chairman-cum-Managing Director had taken all the reasonable precautions to see that its concern manufactures the insecticides according to the ISI standards, there is no escape but to hold that he is ex facie liable for the above referred offences.
9. Consequently, for the reasons recorded above, there being no merit in this petition, it is ordered to be dismissed. It is, however, clarified that the above-referred observations will have no reflection on the merits of the case and the accused-petitioners shall be at liberty to lead evidence before the trial Court for above-referred defences.