Punjab-Haryana High Court
Anand Fredrick vs State Of Punjab And Another on 20 July, 2012
Author: Sabina
Bench: Sabina
Crl. Misc. No. M-37191 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl. Misc. No. M-37191 of 2011 (O&M)
Date of Decision: 20.7.2011
Anand Fredrick ........Petitioner
Vs.
State of Punjab and another ......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Padamkant Dwivedi, Advocate for
Mr.G.S.Gangwar, Advocate,
for the petitioner.
Mr. Amandeep Singh Rai, D. A.G. Punjab
.....
SABINA, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the criminal complaint No.325 dated 2.9.2008 under Sections 3 (k) (i), 17, 18, 33 and 29 of the Insecticides Act, 1968 ('Act' for short) and Rules, 1971 (Annexure P-1) and summoning order dated 2.9.2008 (Annexure P-
3).
The contents of the complaint (Annexure P-1) reads as under:-
"1. That the complainant Sh. Iqbal Singh, Insecticide Inspector posted at Ghall Khurd Block Distt. Ferozepur is authorized to make this complaint under clause (27) of the Insecticide Rules 1971 and also being a public Crl. Misc. No. M-37191 of 2011 (O&M) 2 servant under Section 21 of IPC.
2. That M/s Gill Kheti Store, New grain Market, Talwandi Bhai was dealing in Pesticides/Insecticides/Weedicides holding a license for the purpose issued by the Licensing Authority, Sh. Kuljinder Singh being its proprietor was responsible for the conduct of the business Pesticides/Insecticides/Weedicides.
3. That as per the Punjab Govt. notification No. SO/90/CA-46/68/S-20/91 dated 30.10.91 issued under section 20 of the Insecticide Inspector under the Act 1968, the complainant is appointed/notified as insecticides Inspector under the Act.
4. That according to the provisions of the 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., the complainant with Sh. Sucha Singh, B.A.O., Ghall Khurd in performance of official duties in exercise of powers conferred upon him visited the shop of M/s Gill Kheti Store, Talwandi Bhai on dated 20.09.2006 Sh. Balwinder Singh resp. of the firm was present at the time inspection. On intimation to him in writing that complainant is Insecticide Inspector, Ghall Khurd. Crl. Misc. No. M-37191 of 2011 (O&M) 3 Inspected the shop and the stock register in respect of Cartap Hydrochloride 4% There was 32×5 bags of Cartap Hydrochloride 4% in 5 Kg. packing manufactured by M/s Agrimas Chemicals Limited, Bhatinda in his stock register, which was lying in his business premises. Then 1 packet weighing 5 Kg of Cartap Hydrochloride 4% bearing batch no. 0606062 having manufacturing date June 2006 and expiry date May, 2008 was taken at random for the purpose of analysis which was further put in three polythene bags separately weighing 250gm each. Then these three polythene bags were further put in three separate cloth bags. Then the seizure memo forms no. XX & XXI were prepared (carbon copy attached) which were signed by the complainant and seal was put on the seizure memo and was also signed by Sh. Balwinder Singh representative of the firm and form no. XXI was also put in three bags separately. Then the sample was sealed with the seal of AGRI.II.TAL. The dealer was asked to put his seal of the same, but he denied for the same. One sealed sample was handed over to Sh. Balwinder Singh and receipt was taken in lieu of the sample taken. The cost of the sample was paid to the dealer which he tendered. The sample was taken according to the procedure laid down under the Crl. Misc. No. M-37191 of 2011 (O&M) 4 Insecticides act, 1968 vide Section 22(5) read with rules 33 and 34 of the Act.
6. That two sealed sample were deposited with Sh. Resham Singh, A.D.O Ferozepur office of the C.A.O. Ferozepur who sent one sample to Insecticide Testing Laboratory Amritsar vide letter No. ADO (PP) 56 dated 27-09-2006 through Sh. Suresh Kumar, ASI. One sealed sample remained in the custody of Agriculture Development Officer O/O C.A.O Ferozepur. So long this sample remained in the custody of above said official, they did not tamper with sample nor did they allowed anybody else to tamper.
7. That from the analysis report (original attached) Cartap Hydrochloride 4% has been found misbranded with remarks "the sample does not confirm to IS specifications with respect to its percent active ingredient content, hence misbranded" by Senior Analyst, Insecticide Testing Laboratory Amritsar. As the sample is containing 3.32% instead of 4% of active ingredients contents. Thus it is misbranded under section 3 (K) (i) of the Insecticide Act, 1968. As the sample does not meet the label claim of the packet of Cartap Hydrochloride 4% as required.
8. That the copies of the analysis report were delivered to the dealer and manufacturer vide registered letter no. Crl. Misc. No. M-37191 of 2011 (O&M) 5 8724 dated 26-10-06 and 8773 dated 30-10-06 respectively.
9. That the Dealer M/s Gill Kheti Store, Talwandi Bhai has availed the benefit of retesting the sample under Section 24 of the Insecticide Act 1968 from the C.A.O Ferozepur which was sent to the Central Insecticide Testing Laboratory Faridabad with the permission of the C.A.O Ferozepur but the same was also declared as misbranded being having 3.13% instead of 4% of active ingredients contents. (Copy attached.)
10. That Sh. Kuljinder Singh, Prop. of the firm M/s Gill Kheti Store, Talwandi Bhai committed an offence under Section 18 of the Insecticide Act 1968 by selling/ stocking if misbranded Cartap Hydrochloride 4% on account of sale misbranded Cartap Hydrochloride 4% under clause 3 (k) (i).
11. That this misbrand Insecticides Cartap Hydrochloride 4% manufacture and supplied to the dealer by M/s Agrimas Chemicals Limited, Bhatinda and hence committed an offence under Section 17,3 (K) (I) of the insecticide Cartap Hydrochloride 4%. In this way the responsible persons of the company (i) Sh. Shri Kant Mahajan s/o Sh. Prabhakar Mahaan r/o A-73, Industrial Area, Sikandrabad (UP) responsible officer quality control, (ii) Sh. Manoj Kumar s/o Sh. Lal Chand r/o 165, Crl. Misc. No. M-37191 of 2011 (O&M) 6 Kamla Nehru Nagar, Bhatinda responsible officer, conduct of business & godown inchare, (iii) Mr. Anand Fredrick s/o Sh. James Fredrick r/o 335, Kailash Tower- I, Mount Kailash, New Delhi Director of Company committed an offence under Section 17, 3 (k) (i), 33 of the Insecticide Act 1968. Thus the dealer and the manufacturer are in league to sell the misbranded Cartap Hydrochloride 4% and have jointly have committed an offence under Section17, 18 3 (k) (i), 33 punishable under section 29 of the Insecticide Act 1968 by selling and manufacturing of Cartap Hydrochloride 4% misbranded. Keeping in view the above said facts rendered them quality for the punishment under section 29 (I) of the Insecticide Act 1968.
12. That the necessary sanction/written consent of the authorized person has already been obtained (original attached) under section 31 (1) of the Insecticide Act 1968 for filing the prosecution against the accused.
13. That this Insecticide Cartap Hydrochloride 4% covered under the schedule of Insecticide Act 1968 manufactured by M/s Agrimas Chemicals Limited, Bhatinda registered with C.I.B., Govt. of India, vide their registration no. CIR- 15369/93/ Cartap Hydrochloride (GR)-36 dated 22-07-93.
14. That the Insecticide/weedicides and like has been Crl. Misc. No. M-37191 of 2011 (O&M) 7 declared essential commodities vide Govt. notification no. SO-623 dated 25.08.1977.
15. That the list of witnesses and relevant documents is enclosed as Annexure-I of this complaint.
16. That the complaint is a public servant and busy in the affairs of Govt. and not able to attend the court on each date of hearing to be fixed by this Hon'ble Court, Ld. PP for the state attached with this Hon'ble Court may kindly be allowed to appear on behalf of the complainant. It is, therefore, prayed that the above mentioned accused may kindly be dealt with according to law and be punished accordingly."
Learned counsel for the petitioner has submitted that the petitioner was not responsible for quality control. Petitioner was the Director of the company and had resigned with effect from 28.6.2005 whereas the sample was drawn on 20.9.2006.
Learned state counsel, on the other hand, has submitted that the petitioner was the responsible person and official of the company and hence, he was liable to be prosecuted.
After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed.
In the case of 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 Crl. Misc. No. M-37191 of 2011 (O&M) 8 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 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/respondent No.2, 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 Crl. Misc. No. M-37191 of 2011 (O&M) 9 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.
(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 Crl. Misc. No. M-37191 of 2011 (O&M) 10 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." 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 Crl. Misc. No. M-37191 of 2011 (O&M) 11 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 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 Crl. Misc. No. M-37191 of 2011 (O&M) 12 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 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 Crl. Misc. No. M-37191 of 2011 (O&M) 13 141.
(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 the 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 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 Crl. Misc. No. M-37191 of 2011 (O&M) 14 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 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 was responsible to the company for the conduct of its business.
Crl. Misc. No. M-37191 of 2011 (O&M) 15
A perusal of the complaint reveals that it does not specify the statutory requirements of Section 33 of the Act, so far as the present petitioner is concerned. Moreover, the petitioner was no longer the Director of the company on the date when the sample of insecticide was drawn. The fact that petitioner had resigned from the company w.e.f. 28.6.2005 is duly mentioned in para 5 of the petition. In this regard reliance has also been placed on Annexures 4 and 5. The petitioner had already resigned from the company and could not be held liable for prosecution. 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.325 dated 2.9.2008 under Section 3 (k) (i), 17, 18, 33 and 29 of the Act, 1968 and Rules, 1971 (Annexure P-1) and all subsequent proceedings, arising therefrom, including the summoning order dated 2.9.2008 (Annexure P-3), qua the petitioner, are quashed.
(SABINA) JUDGE July 20, 2012 anita