Punjab-Haryana High Court
M/S Hariyali Kisan Bazar vs State Of Haryana on 6 October, 2012
Author: Sabina
Bench: Sabina
Crl. Misc. No. M-1851 of 2011 (O&M) -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No. M-1851 of 2011 (O&M)
Date of Decision: 06.10.2012.
M/s Hariyali Kisan Bazar ........Petitioner
Vs.
State of Haryana ......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Daman Dhir, Advocate
for the petitioner.
Mr. Gaurav Dhir, DAG, Haryana.
.....
SABINA, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the complaint No. 13-2 dated 22.1.2010 under Section 12 AA(E) of Essential Commodities Act, 1955 ('Act' for short) (Annexure P-1) and all the subsequent proceedings arising therefrom.
The case of the complainant, in brief, is that on 22.5.2009 the premises of the petitioner was checked. During checking, eight sealed packets weighing 3 kilograms each, stored in proper place of sulphur 90% (Cosavet), were found. The said packets were not exposed to rain or sun. Three samples were drawn out of the packets. One packet was sent for analysis to the laboratory. The Senior Analyst Quality Control Laboratory (Fertilizer), Hisar conveyed that the sample contained 85.60% sulfur and was, thus, not according to the specification. Hence, the complaint was filed against the petitioner and others.
Learned counsel for the petitioner has submitted that the petitioner could not be held liable if the sample was not Crl. Misc. No. M-1851 of 2011 (O&M) -2 - found according to specification as the petitioner was merely a dealer of the insecticide. The insecticide had been manufactured by M/s Sulfur Mills Ltd. Andheri (East) Mumbai. The insecticide was being sold by the petitioner in sealed packets in original form. The petitioner did not and could not have ascertained whether the insecticide in any way was being manufactured in contravention of any provision of the Act. A perusal of the complaint itself reveals that the insecticide had been stored properly by the petitioner. Thus, the insecticide had remained in the same state as and when it had been acquired by the petitioner.
Section 30(3) of the Insecticides Act, 1968 reads as under :-
"30. Defences which may or may not be allowed in prosecutions under this Act.-
(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 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 Crl. Misc. No. M-1851 of 2011 (O&M) -3 - when he acquired it."
A perusal of Section 30(3) of the Insecticides Act, 1968 shows that the petitioner is entitled to the protection under the same, in case, the sample is taken from the sealed container and the seal had not been tampered with when the same was recovered from the shop. However, the protection would not be available to the dealer or distributor in case the insecticide has not been stored properly.
Admittedly, the sample in question was drawn from sealed packets.
Hon'ble the Supreme Court, in the case of M/s Kisan Beej Bhandar, Abohar vs. Chief Agricultural Officers, Ferozepur and another reported as 1990 Supreme Court Cases (Crl.) 623, in para No.4, held as under :-
"The High Court took the view that by enacting subsection (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 prosecutions but also to every contravention of the Act and cancellation of licence for contravention of the Act is also a matter covered by subsection (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 Crl. Misc. No. M-1851 of 2011 (O&M) -4 - misbranding 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."
This Court, in the case of M/s Guru Nanak Pesticides, Nabha & Ors. vs. State of Punjab reported as 2010 (1) RCR (Criminal) 30, held as under :-
" 6. Petitioner No.1 is the stockist; petitioners No.2 and 3 are its partners while petitioner Nos. 4 and 5 are the distributor. They are not the manufacturer of the relevant insecticide. There is clear-cut plea in the petition that they were selling the insecticide in the sealed container in the original form as obtained from the manufacturer and the sample was also taken from the original packing. This plea has not been controverted by the State. Thus, there remains no controversy that the impugned sample was obtained from the sealed containers lying in the premises of Crl. Misc. No. M-1851 of 2011 (O&M) -5 - the firm and there is no material to indicate that the insecticide was not properly stored. Thus, the petitioners being the stockist/dealer/distributor, involved in the sale of insecticides, cannot be held liable for misbranding of the insecticides and only the manufacturer would be liable. In this context reliance can be placed on the cases of M/s Kisan Beej Bhandar, Abohar v. Chief Agricultural Officers, Ferozepur 1990 Supreme Court Cases (Crl.) 623 and M/s Vimal And Co. Grain Market, Mullanpur v. State of Punjab, 2002(2) RCR (Criminal) 56 (P&H), followed in the case of Deepak Sharma & Ors. v. State of Punjab, 2002(2) RCR (Criminal) 24 and reliance can be safely placed on the case of M/s Punjab Beej Bhandar Bela & Anr. v. State of Punjab through Insecticide Inspector Ropar, 2008 (1) RCR (Criminal) 998, wherein also this Court quashed the criminal proceedings against the licensed dealer."
Admittedly, the petitioner is not the manufacturer of the insecticide but is selling the same. Hence, the petitioner cannot be held responsible if the sample was not found to be upto the standard by the analyst. The petitioner was merely involved in sale of the insecticide. The complaint was also filed against the manufacturer. From the complaint it is evident that the insecticide had been stored properly by the petitioner.
Accordingly, this petition is allowed. Complaint No. 13-2 dated 22.1.2010 under Section 12 AA(E) of the Act Crl. Misc. No. M-1851 of 2011 (O&M) -6 - (Annexure P-1) and all the consequential proceedings arising out of the said complaint, qua the petitioner, is quashed.
(SABINA) JUDGE October 06, 2012 Gurpreet