Punjab-Haryana High Court
M/S Garg Agro Chemicals & Another vs State Of Punjab on 21 December, 2010
Author: Rajan Gupta
Bench: Rajan Gupta
Crl. Misc. No. M-19235 of 2010 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH.
Crl. Misc. No. M-19235 of 2010 (O&M)
Date of decision : 21.12.2010
M/s Garg Agro Chemicals & another ...Petitioners
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr. Arun Chandra, Advocate for the petitioners.
Mr. Raghbir Chaudhary, Senior DAG, Punjab.
Rajan Gupta, J. (oral)
This is a petition under Section 482 Cr.P.C. seeking quashing of complaint instituted under Section 27 (5) of the Insecticide Rules, 1971 for violation of Section 3 (k) (i), 17, 18, 29 and 33 of the Insecticide Act, 1968 and rules, pending in the court of Chief Judicial Magistrate, Patiala and consequential proceedings arising therefrom.
Brief factual background of the case is that Gurmit Singh, Insecticide Inspector, Patiala alongwith Jagdish Singh Sandhu, Agriculture Development Officer, Patiala inspected the shop of petitioner No.1 on 31st May, 2003 and found 90 litres of Butachlor 50% EC of one litre packing and 50 litres of Endosulfan 35% EC of 5 litres packing and drew the samples of Butachlor 50% and Endosulfan 35% out of the original packing which was manufactured by M/s Chemical Corporation of India, Delhi. After drawing the samples, one part thereof was given to the petitioner and two parts were retained by the Inspector. The sample, which was retained by the Inspector was sent to the Senior Crl. Misc. No. M-19235 of 2010 2 Analyst, Insecticide Testing Laboratory, Ludhiana where the same was found to be misbranded. On the basis of the report received, the instant complaint dated 27th July, 2007 was lodged in the court of Chief Judicial Magistrate, Patiala whereafter the petitioner along with co-accused was summoned to face trial.
Learned counsel for the petitioners has contended that since the sample was drawn from the original packing as received from the manufacturer, the petitioner is entitled to the benefit of Section 30 (3) of the Act. According to learned counsel in such an eventuality, liability if any, is of the manufacturer and not of the dealer. In support of his contention he has placed reliance on a judgment of the apex court reported as M/s Kisan Beej Bhandar, Abohar Vs. Chief Agricultural Officer, Ferozepur and another, 1990 Supreme Court Cases (Cri) 623.
Learned State counsel does not dispute the fact that the instant case is covered by the ratio of M/s Kishan Beej Bhandar's case (supra). He has, however, contended that the entire matter can be gone into by the trial court after evidence is led by the parties.
I have heard learned counsel for the parties.
Section 30 (3) of the Act is extracted below for ready reference. The same reads thus:
"(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 Crl. Misc. No. M-19235 of 2010 3 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 when he acquired it."
In the instant case, a perusal of Form XX (Annexure P-2) in respect of sample of Butachlor, shows that the sample was in fact drawn from the original packing. The original packing was being kept by the dealer in his premises. When sample was drawn, it was stated in column no.5 of aforesaid Form "Loose sample from Company Packing". Similarly, in the sample of Endosulfan taken by the Insecticide Inspector in Form-XX (Annexure P-3), it was clearly mentioned that loose samples had been taken from the company packing. In view of these documents, which are on record, it is clear that the samples in question was taken by the Insecticide Inspector from the original packing as given by the manufacturer. In M/s Kishan Beej Bhandar's case (supra), the apex court while allowing a similar plea observed as under:-
"4. 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 prosecutions 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 misbranding was Crl. Misc. No. M-19235 of 2010 4 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."
In view of above, it is clear that petitioner is entitled to protection of Section 30 (3) of the Act as he cannot be held liable for misbranding of the sample. He was merely selling Butachlor and Endosulfan in the same packing as the manufacturer had supplied to him. I am, thus, of the considered view that proceedings against the petitioner under the Insecticide Act, 1968 cannot be allowed to continue.
Thus, the petition for quashing of complaint No.563 of 27th July, 2007, under Section 27 (5) of the Insecticide Rules 1971, pending in the court of Chief Judicial Magistrate, Patiala and all consequential proceedings, is hereby accepted qua the petitioners.
Allowed in the aforesaid terms.
(RAJAN GUPTA)
JUDGE
December 21, 2010
'rajpal'
To be referred to the Reporters or not: Yes / No