Punjab-Haryana High Court
M/S Cheminova India Limited And Others vs The State Of Punjab And Another on 24 February, 2014
Author: Surinder Gupta
Bench: Surinder Gupta
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Misc. No. M-10527 of 2013
Date of decision: February 24, 2014
M/s Cheminova India Limited and others
.. Petitioners
Vs.
The State of Punjab and another
.. Respondents
Coram: Hon'ble Mr. Justice Surinder Gupta
Present: Mr. Pankaj Maini, Advocate for petitioners.
Mr. Varun Sharma, AAG, Punjab.
Surinder Gupta, J
This petition has been filed under Section 482 Cr.P.C. for quashing the complaint titled as State through Sh. Gurmit Singh Cheema, Insecticide Inspector, Fazilka vs. M/s P.B. Pesticides and others (Annexure P/7) filed for offence under Section 3 (k) (1), 17, 18 and 33 Punishable under Section 29 (1) of Insecticides Act, 1968 read with Section 27 (4) of the Insecticides Rules, 1971.
On 9.1.2007, Insecticide Inspector, Fazilka visited the premises of petitioner No.1 and took the sample of Piroxifop Propinyl 15% WP. The sample was sent to Punjab Insecticides Quality Control Laboratory, Ludhiana and vide report dated 7.2.2007 (Annexure P/4), it was found misbranded. The report is as follows :-
"The sample does not conform to HPLC method with respect to its percent active ingredient content requirement. Hence the sample is misbranded."
The Chief Agriculture Officer, Ferozepur issued notice dated 20.2.2007 (Annexure P/5) to the petitioner No.1 for violation of the Kumar Deepak 2014.03.03 12:48 I attest to the accuracy and integrity of this document Crl. Misc. No. M-10527 of 2013 -2- provisions of Insecticide Act, 1968 and Rules, 1971. The report of Central Insecticides Laboratory, Faridabad dated 10.8.2007 (Annexure P/6) regarding sample taken from the premises of petitioner No.1 was received which also declared the sample as not conforming to the relevant specification in the active ingredients contents and thus misbranded. The complaint (Annexure P/7) was filed by the Insecticide Inspector on 29.1.2013 in the Court of Chief Judicial Magistrate, Fazilka.
Learned counsel for the petitioners has argued that complaint in this case has been filed much after the expiry of the period of limitation as provided under Section 468 Cr.P.C. The report of the Punjab Insecticide Quality Control Laboratory, Ludhiana (Annexure P/4) is dated 7.2.2007 and that of Central Insecticides Laboratory, Faridabad (Annexure P/6) is dated 10.8.2007. Under Section 29 (i) of the Insecticides Act, 1968 the maximum sentence which can be awarded is two years and fine of `50,000/-. The complaint could be presented within a period of three years from the date of commission of alleged offence. The complaint has been filed much after the expiry of the period of limitation, as such, is liable to be quashed.
The learned State counsel has submitted that under Section 470 (3) Cr.P.C. in computing the period of limitation, the time required for giving notice for prosecution and in obtaining the sanction of the Government or any other authority is to be excluded. The delay in filing the complaint took place as required sanction was not received in time and due to hectic schedule of Insecticide Inspector and rush of work with him.
First point which require consideration is as to from which date the limitation for initiating the proceedings for violation of the provisions of Insecticides Act, 1968 and Insecticides Rules, 1971 will start. Kumar Deepak 2014.03.03 12:48 I attest to the accuracy and integrity of this document Crl. Misc. No. M-10527 of 2013 -3-
For answer to this question, a reference could be made to the observations of the Hon'ble Supreme Court in the case of State of Rajasthan vs. Sanjay Kumar, AIR 1998 SC 1919. In that case the sample had been drawn on 29.2.1988, the report of the laboratory had been received on 2.7.1988 and the complaint was filed on 28.6.1991. The High Court quashed the proceedings holding the same as barred by limitation with the observations that the period of limitation start from the date of taking of sample. In para No.9 and 13, the Hon'ble Supreme Court observed as under :-
"9. Now we shall see which clause of sub-section (1) of Section 469 is attracted to the facts of the case. For this purpose it will be necessary to revert to the facts of this case. The essence of the offences charged is manufacture of adulterated, sub-standard, misbranded, spurious drugs within the meaning of the relevant provisions of the Act and/or storage, distribution and sale of such drugs in contravention of the provisions of the Act. On the date of collection of samples from respondent No.16, on February 29, 1988, it could not have been said that any offence was committed as selling of drugs per se is no offence and the quality of the drugs was not known to the Drugs Inspector, the complainant on that date. It is only, when the report of the Government Analyst was receive, that it came to light that the provisions of the Act are violated and offence is committed. So on the facts of this case it cannot be said that Clause (a) of Section 469(1) is attracted. That the drugs which were offered for sale were substandard/ adulterated, within the meaning of the Act, came to the knowledge of the Drugs Inspector only on July 2, 1988 when the report of the Government Analyst was received by him; and therefore, clause (b) of Section 469(1) will be attracted.
(10) to (12) xx xx xx Kumar Deepak 2014.03.03 12:48 I attest to the accuracy and integrity of this document Crl. Misc. No. M-10527 of 2013 -4-
13. For the above reasons, in the instant case, the limitation for the purpose of Section 468(2) (c) will commence from July 2, 1988, the date of knowledge of the commission of offence to the concerned officer under Section 469(1) (b) but not from February 29,1988 (the date of collection of samples by the Drugs Inspector) and as the complaint was filed on June 28, 1991 which is within three years so the complaint is not barred by limitation under Section 468(2) (c). The High Court has missed this germane aspect erroneously took the date of commencement of the limitation as February 29,1988 , the date on which the samples were collected by the Drugs Inspector form accused No. 16."
In the present case, the report of Insecticide Analyst was received on 7.2.2007 and of Central Insecticides Laboratory, Faridabad on 10.8.2007. Even if it is presumed that the fact of sample taken from the premises of the petitioner being found misbranded came to the notice of the complainant on 7.2.2007 or 10.8.2007, the complaint filed on 29.1.2013 is far beyond the period of three years and is hit by the provisions contained in Section 468 Cr.P.C. which provides as follows :-
"468. Bar to taking cognizance after lapse of the period of limitation -
(1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be--
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with Kumar Deepak 2014.03.03 12:48 I attest to the accuracy and integrity of this document Crl. Misc. No. M-10527 of 2013 -5- imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."
Section 469 Cr.P.C. deals with the commencement of period of limitation and provides as follows :-
"46
9. Commencement of the period of limitation -
(1) The period of limitation, in relation to an offender, shall commence -
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or
(c) where it is not known by whom the offence was committed, the first the day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier."
On receipt of the report of the Laboratory, this fact came to the notice of the complainant that the sample was misbranded and thereafter period of limitation starts. This plea of learned State counsel, even if accepted that some time is required to have permission/approval of the Competent Authority and to issue notice, still the complaint which has been filed after about six years of the date of initiation of period of limitation of Kumar Deepak 2014.03.03 12:48 I attest to the accuracy and integrity of this document Crl. Misc. No. M-10527 of 2013 -6- filing of the complaint, cannot be termed as within limitation.
The Chief Judicial Magistrate, Fazilka has not examined, while taking cognizance of the complaint as to whether the same has been filed within limitation. The complaint was presented beyond the period of limitation without any prayer for condonation of delay. As such, the court could not take cognizance of the same.
In somewhat similar circumstances, the complaint filed by the Insecticide Inspector was set aside by the Co-ordinate Bench of this Court in Crl. Misc. No. M-18077 of 2011 decided on 8.10.2012 (M/s Balaji Sales Corporation & Another vs. State of Punjab).
In view of my discussion above, the Chief Judicial Magistrate, Fazilka could not take cognizance of the complaint filed before him without examining as to whether the same is within limitation or not. The complaint has been filed much after the expiry of the period of limitation.
As such, the instant petition is allowed and the complaint No. 22-2 dated 29.1.2013 (Annexure P7) along with all the consequential proceedings arising therefrom is hereby quashed.
February 24, 2014 (Surinder Gupta)
deepak Judge
Kumar Deepak
2014.03.03 12:48
I attest to the accuracy and
integrity of this document