Punjab-Haryana High Court
Lakham Singh Chaudhary vs State Of Punjab on 20 September, 2012
Author: Sabina
Bench: Sabina
Crl.Misc.M No. 21710 of 2012 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Misc. M No. 21710 of 2012
Date of Decision:September 20, 2012
Lakham Singh Chaudhary ..........Petitioner
Versus
State of Punjab ..........Respondent
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.P.K.Dwivedi, Advocate for the petitioner.
Mr.Amandeep Singh Rai,Deputy Advocate General,
Haryana
**
Sabina, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the criminal complaint No. 94-2 dated 27.1.2010 under Section 3 (k) (i), 17, 18 , 33 punishable under Section 29 of the Insecticides Act, 1968 ('Act' for short) and Rules 27(5) of the Insecticides Rules, 1971 titled as `State through Insecticides Inspector,Ferozepur vs. M/s Kissan Kheti Sewa Centre and others' (Annexure P-1) and summoning order dated 27.1.2010 (Annexure P-3).
The contents of the complaint (Annexure P-1) reads as Crl.Misc.M No. 21710 of 2012 2 under:-
"1.That I Resam Singh, Insecticides Inspector posted at Ferozepur is authorized to make this complaint under clause 27 of the Insecticides Rules, 1971 and also being a Public Servant under Section 21 of IPC.
2.That the Punjab Govt. Notification No. S.O./92/C.A.46/68/S.20/91 Dated 30.10.1991 issued under Section 20 of the Insecticides Act, 1968. I am appointed/notified as Insecticides Inspector under the Act, 1968. I am appointed/notified as Insecticides Inspector under the Act.
3.That M/s Kissan Kheti Sewa Centre, Arif ke, was dealing in pesticides/insecticides/weedicide holding a licence for the purpose issued by the licencing authority. Kabal Singh son of Piara Singh sole proprietor of this firm M/s Kissan Kheti Sewa Centre, Arif ke was responsible for the conduct of the business of the pesticides/insecticides/weedicide.
4.That according to the provisions of Insecticides Act, 1963 read with Insecticides Rules, 1971, the dealer, distributor and the manufacturer are under legal obligation to observe all the provisions as contained in the Insecticides Act, 1968 and read with Rules, 1971.
5.That vide above referred notification of the Punjab Govt. on 20.07.2007, I along with Smt. Satinder Kaur Agriculture Officer Ferozepur and Sh,Chanan Singh Agriculture Inspector, Ferozepur in discharge of my official duty in Crl.Misc.M No. 21710 of 2012 3 exercise of powers. Conferred upon me visited the premises of M/s Kissan Kheti Sewa Centre, Arif Ke. Sh.Kabal Singh was present in the premises of the firm at the time of inspection. On intimation to him in writing that I am Insecticide Inspector, Ferozepur inspected the premises and stock register in respect of Cartap Hydro Chloride 4% G. Then I show my desire to draw sample of Cartap Hydro Chloride 4% G Batch No. 0706147 Manufacture dated 6/07 Expiry Date 5/09 manufactured by M/s Agrimas Chemicals Ltd. and marketed by M/s Chambal Fertilisers and Chemicals Ltd. in 5 kg packing. Then I prepared three samples out of above said packing each measuring 250 gms of Cartap Hydrochloride 4% G. The original seizure memo was prepared and the same was signed by me and seal was put on the said seizure memo. The said seizure memo was also signed by Smt. Satinder Kaur, Agriculture Office, Chanan Singh Agricultural Inspector, Ferzoepur and Kabal Singh Proprietor of the firm. Although ¾ customers were also present there. I tried to associate one of them as independent witness, but no body was willing to associate with me. Hence, Sh. Reshem Singh ADO Ferozepur signed on the seizure memo. The said three samples were also put in separate polythene bag along with seizure memo and the sample was sealed with seal IT AGR FZR in the presence of Kabal Singh proprietor of firm. Kabal Singh was asked to put his seal on sample but he refused to put Crl.Misc.M No. 21710 of 2012 4 his seal on the sample. One sealed sample was handed over to Kabal Singh and receipt was taken in lieu of sample taken on Form No. XX. The cost of the sample was paid to Kabal Singh. He tendered. The sample was taken according to the procedure laid down under the Insecticide Act, 1968 vide section 22(5) read with rules 33 and 34 of the Act.
6. That the two sealed samples were sent to the office of Chief Agriculture Officer, Ferozepur through S.Chanana Singh ASI on 23.7.2007 vide letter no.82 and handed over to Sh.Iqbal Singh, ADO (PP) Ferozepur. One sealed sample was sent to Insecticide Testinal Laboratory Amritsar through Sh.Jabnair Singh, Beldar in the office of Chief Agriculture officer Ferozepur vide letter no. 199 dated 31.7.2007 against proper receipt who deposited the same sample in the Insecticide Testing Laboratory, Amritsar and remaining one sealed sample was kept in the office of Chief Agriculture Officer, Ferozepur.
7.That the test report of sample was received from senior Analyst Insecticide Testing Laboratory, Amritsar in the office of Chief Agriculture Officer, Ferozepur. The sample was declare misbranded with remarks "the sample does not conform to 19 specification in respect of its percent active ingredient content, hence the sample is misbranded". The active ingredient contents were only 3.50% instead of 4% G.
8.That the copy of the analysis report with show cause Crl.Misc.M No. 21710 of 2012 5 notice was sent to Sh.Kabal Singh son of Boota Singh. Proprietor of M/s Kissan Kheti Sewa Centre, Arif Ke. Tehsil and District Ferozepur,as Insecticide Act, 1968 by Chief Agriculture Officer, Ferozepur vide letter No.6830 dated 2.9.2007, copy of analysis report was delivered to the manufacturing firm and the responsible persons of the manufacturing firm i.e. M/s Agrimas Chemicas Limited, Bhatinda along with show cause notice by Chief Agriculture Officer, Ferozepur vide letter No. 6900 dated 3.9.2007. Also a copy of analysis report was delivered to marketing firm and the responsible persons of the manufacturing firm i.e. M/s Chambal Fertilizers and Chemicals Ltd. New Delhi along with the show cause notice by Chief Agriculture Officer, Ferozepur vide letter no.6889 dated 2.9.2007. Also a copy of analysis report was delivered to supplier firm and the responsible persons of the firm i.e. M/s Agriculture Traders, GT Road, Ferozepur Cantt along with show cause notice by Chief Agriculture Officer, Ferozepur vide letter no. 7923 dated 4.10.2007.
9. That on the request of the dealer M/s Kisan Kheti Sewa Centre, Arif ke the second sample of Cartap Hydro Chloride 4% G was sent to Central Insecticide Laboratory Faridabad for re-testing by Chief Agriculture officer, Ferozepur, vide letter no. ADG(PP)-36 dated 1.1.2008. The sample was again declared mis-branded with remarks "The sample does not conform to the relevant specification in the active Crl.Misc.M No. 21710 of 2012 6 ingredient content test requirement and is hence mis- branded".The active ingredient contents were only 3.56% instead of 4% G.
10. That the notice of personal hearing was given to the dealer firm M/s Kisan Kheti Sewa Centre Arif Re. supplied firm M/s Agriculture Traders, GT Road, Ferozepur Cantt. Manufacturing firm M/s Agrimas Chemicals Ltd. Bhatinda and marketing firm M/s Chambal Fertilizers and Chemicals Ltd. New Delhi vide letter no. 6830 dated 3.9.2007. Letter no. 7923 dated 23.10.2007 letter no. 7740 dated 1.10.2007 and letter no. 7729 dated 1.10.2007 respectively by Chief Agricultural Officer, Ferozepur. After personal hearing, licencing authority i.e. Chief Agriculture Officer, Ferozepur canceled the licence of the dealer M/s Kisan Kheti Sewa Centre Arif vide letter no. 3698 dated 23.4.2008.
11. That the dealer, marketer and the manufacturer are under legal obligation to sell, manufacture and to supply this mis-branded insecticide in contravention of provisions of the Insecticide Act, 1968 rules 1971. The Insecticide, weedicide and fungizide are as essential commodities as status has been framed by Government of India to strictly enforce the provision of Insecticide Act, 1968 and rules 1971.
12. That Kabal Singh son of Boota Singh,Proprietor of the firm M/s Kissan Kheti Sewa Centre Arif Ke Vinod Soi s/o W.L.Soi Proprietor and responsible person of M/s Crl.Misc.M No. 21710 of 2012 7 Agriculture Trader, Ferozepur Cantt. Sh. Srikant Mahajan son of Prabhakar Mahajan being responsible person for quality control, Lakham Singh Chaudhary son of Mohar Singh Chaudhary being responsible person for conduct of business, Manoj Kumar son of Lal Chand being godown incharge and Anand Fredrick son James Fredrick being director of M/s Agrimas Chemicals Ltd. V.K.Fotedar son S.L. Fotedar being responsible person for conduct of business and Rajnish Kumar son of Darshan Kaumar beign godown incharge of M/s Chambal Fertilizers and Chemicals Ltd. have jointly committed the offence under section 3(k) (i), 17,18,29 and 33 of the Insecticides Act, 1968 by stocking supplying marketing, manufacturing and selling misbranded insecticides.
13. That all the proceedings of taking sample analysis and procedure upto filing of the complaint was done as per the Insecticides Act, 1968 and Rules, 1971.
14. That the necessary sanction/written consent of the authorised person has already been obtained u/s 31(1) Insecticides Act, 1968 for filing the prosecution against the accused.
15. That the insecticides Cartap Hydrocloride 4% cover under the schedule of Insecticides Act, 1968 manufactured by M/s Agrimas Chemicals Ltd. Bhatinda, registered with C.I.B., Govt. of India, vide their registration........
16. That the Insecticides/Weedicides and like has been Crl.Misc.M No. 21710 of 2012 8 declared essential commodities vide Govt. Notification no. SO-623 dated 25.09.1977.
17. That list of witnesses and relevant documents are enclosed as Annexure -1 of this complaint.
18. That I am busy in my multifarious duties and unable to attend this Hon'ble Court on each and every date of hearing, as such the Addl.Public Prosecutors of this Hon'ble Court may please be allowed to appear on my behalf."
Learned counsel for the petitioner has submitted that the petitioner was not responsible for quality control. Petitioner was the Area Manager of the company and had resigned from the Company with effect from 13.4.2005. The sample in question was drawn on 20.7.2007. The insecticides in question was manufactured in June,2006. Hence, the petitioner was not responsible for any act of the Company committed after his resignation.
Learned state counsel, on the other hand, has opposed the petition.
After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed.
It has been held in State of Haryana vs. Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482,Cr.P.C. Can be exercised by the High Court either to Crl.Misc.M No. 21710 of 2012 9 prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1)Where the allegations made in the first information report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.Crl.Misc.M No. 21710 of 2012 10
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." Crl.Misc.M No. 21710 of 2012 11 Section 33 of the Act reads as under:-
"Offences by companies - (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, or was responsible to the company for the conduct of the business of, the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2)Notwithstanding anything contained in sub-
section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and Crl.Misc.M No. 21710 of 2012 12 punished accordingly.
Explanation- For the purpose of this section.-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director', in relation to a firm, means a partner in the firm."
In the case of 'State of NCT of Delhi versus Rajiv Khurana, 2010(3) RCR Criminal, 912', the Apex Court has held as under:-
"19. In K.K.Ahuja's case (supra) the court summarized the position under section 141 of the Act as under:-
(i) If the Accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix "Managing" to the word "Director" makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company.
(ii) In the case of a Director or an officer of the Crl.Misc.M No. 21710 of 2012 13 company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141.
(iii) In the case of a Director, secretary or manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses(e) and (f) Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of t he company is necessary to bring the case under Section 141(1) of the Act.
No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section.
(iv) Other officers of a company cannot be made Crl.Misc.M No. 21710 of 2012 14 liable under sub-section (1) of Section 141. Other officers of a company can be made liable only under sub-section (2) of Section 141, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence.
20. The court further observed that the trauma, harassment and hardship of the criminal proceedings in such cases may be more serious than the ultimate punishment, it is not proper to subject all the sundry to be impleaded as accused in a complaint against a company, even when the requirements of section 138 read with section 141 of the Act are not fulfilled.
21. 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."
Thus, when a company is sought to be prosecuted for an offence under the Act as per Section 33, every person who at the Crl.Misc.M No. 21710 of 2012 15 time of commission of the offence, was in charge of, or was responsible to the company for the conduct of its business, shall be deemed to be guilty of the offence. In this view of the matter, the complainant must disclose specifically or by necessary inference that a person or persons cited as accused were at the time of commission of the offence in charge, or were responsible to the company for the conduct of its business.
A perusal of the complaint reveals that it does not satisfy the statutory requirements of Section 33 of the Act, so far as the present petitioner is concerned. Moreover, the petitioner was working as Area Manager. Petitioner had submitted his resignation on 13.4.2005. The said resignation letter sent by the petitioner was duly accepted by the Company on 15.4.2005. The said letter of acceptance of resignation of the petitioner is Annexure P12. Thus, the petitioner had already resigned from the Company at the time when the sample was drawn. The insecticide s in question was also manufactured after the submission of resignation by the petitioner. Keeping in view the totality of the facts and circumstances of the case, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law.
Accordingly, the present petition is allowed. Criminal complaint No. 94-2 dated 27.1.2010 under Section 3 (k) (i), 17, 18 ,33 punishable under Section 29 of the Act and Rules 27(5) of the Insecticides Rules, 1971 titled as `State through Insecticides Inspector, Ferozepur vs. M/s Kissan Kheti Sewa Centre and others' (Annexure P-1) and all subsequent proceedings, arising therefrom, Crl.Misc.M No. 21710 of 2012 16 including the summoning order dated 27.1.2010 (Annexure P-3) are quashed qua the petitioner.
(Sabina) Judge September 20, 2012 arya