Punjab-Haryana High Court
M/S Balaji Sales Corporation & Anr vs State Of Punjab on 8 October, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Misc. No.M-18077 of 2011 (O&M) ..1..
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.M-18077 of 2011 (O&M)
Date of Decision: October 08, 2012
M/s Balaji Sales Corporation & Anr.
...Petitioners
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Sheery K.Singla, Advocate, for the petitioners.
Mr.Jaspreet Singh, AAG, Punjab, for the respondent.
***
Naresh Kumar Sanghi, J.
Prayer in this petition filed under Section 482, Cr.P.C is for quashing of the complaint No.29 dated 29.03.2011 under Sections 3(k)(i), 17,18, 29 and 33 of the Insecticide Act,1968 read with Rule 27(5) of the Insecticide Rules, 1971, titled as "State vs. M/s Balaji Sales Corporation", pending in the court of Sub Divisional Judicial Magistrate, Talwandi Sabo, (Annexure P-1) and the summoning order dated 29.03.2011 (Annexure P-2) passed therein, as well as all the consequential proceedings arising therefrom qua the petitioners.
Brief facts of the case are that Harvinder Singh, Insecticide Inspector was authorized to take sample of the insecticides and if any violation is found then to file a complaint. On 20.12.2006, he visited the shop being run under the name and style of "M/s Balaji Sales Corporation" (petitioner No.1) where Chhinder Pal s/o Sukhdev Chand, a partner of the said firm was present. The Insecticide inspector checked the shop and Criminal Misc. No.M-18077 of 2011 (O&M) ..2..
found 9x1 lt., 2.5 D Ethalic Eister 38% E.C bearing batch No.DIL- 1204, manufacturing date November 2006 with the expiry date October, 2008, which were supplied by M/s Darrick Insecticides Limited, Bathinda, in 1 lt. packing and were displayed for the purpose of sale. Out of the said stock, 1 lt. packing was selected by the Insecticide Inspector out of which 750 ml, 2-4 D Ethelic Eister 38% Ethalic Eister was purchased vide bill No.1146 dated 20.12.2006 and the residue insecticide was handed over to the shopkeeper. The contents of the insecticide were mixed properly and divided into three parts. The containers were packed and sealed in accordance with the rules. One sealed sample along with Form No.XX was handed over to Chhinder Pal partner of the firm. One sample along with Form No.XX1 was sent to the Senior Analyst Insecticide Labotory, Amritsar, on 27.12.2006 through Amar Sing Peon while the third sample was deposited with the ADO, PP, Bathinda. The sample sent to the Senior Analyst Insecticide Laboratory, Amritsar, was found to be misbranded and the Chief Agricultural Officer, Bathinda, informed the Insecticide Inspector with regard to the receipt of the report from the Senior Analyst Insecticides Laboratory, Amritsar. A show cause notice was issued to the dealer vide letter No.1490-92 dated 14.03.2007 about the receipt of the report from the Senior Analyst Insecticide Laboratory, Amritsar. On the request of the dealer, one sample was sent to the Central Insecticide Laboratory, Faridabad, vide letter No.2299 dated 18.04.2007 for testing and the contents were again found to be misbranded. Criminal Misc. No.M-18077 of 2011 (O&M) ..3..
The dealer and other concerned persons were informed regarding the receipt of the report from the Central Insecticide Labortary, Faridabad, vide letter No.2531 dated 26.04.2008 and thereafter on 29.03.201,1 the complaint was presented before the learned Sub Divisional Judicial Magistrate, Talwandi Sabo.
Learned counsel for the petitioners has made two fold arguments:-
1:- Petitioner No.1, i.e. M/s Balaji Sales Corporation was a licenee and authorized to sell the insecticides and petitioner No.2 Rajinder Kumar was its partner. The samples were drawn from the sealed container which was kept in the same state in which it was received from the manufactuer, therefore, the petitioners were not liable for the manufacturing defects, if any.
2:- The sample was drawn on 20.12.2006. The report from the Senior Analyst Insecticide Laboratory, Amritsar, was received on 25.01.2007 while the report from the Central Insecticide Labortaory, Faridabad, was received on 10.05.2007. The complaint was filed on 29.03.2011, i.e. after about 03 years and 10 months, on receipt of the report from the Central Insecticide Laboratory, Faridabad. The maximum sentence prescribed for the offcene punishable under Section 29 of the Insecticides Act is imprisonment for two years beside payment of fine of up to Rs.50,000/- Criminal Misc. No.M-18077 of 2011 (O&M) ..4..
while in the case of subsequent offence, the term of imprisonment may extend to three years or with fine which shall not be less than Rs.50,000/- but may extend to Rs.75,000/- or with both. Therefore, the complaint could be presented within 3 years of the commission of the alleged offence as per Section 468 of Criminal Procedure Code.
On the other hand, learned counsel for the State submitted that the sample was kept by the petitioners in the same state in which it was produced/received from the manufacturer or stored properly would be a question of fact to be decided by the learned trial court and as such, the first argument raised by the learned counsel for the petitioners was not tenable. However, he had no answer to the second submission of the petitioners to the effect that the complaint filed by the insecticide inspector was hopelessly barred by limitation.
I have heard learned counsel for the parties and gone through the material available on record.
Admittedly, the sample was drawn on 20.12.2006. The report from the Senior Analyst Insecticide Laboratory, Amritsar, was received on 25.01.2007 while the report from the Central Insecticide Laborary, Faridabad, on 10.05.2007. Even if it is presumed that it came to the notice of the complainant on 10.05.2007 that the sample lifted from the premises of the petitioners was misbranded then also the complaint could be filed on or before 10th May, 2010, but in the case in hand, the Criminal Misc. No.M-18077 of 2011 (O&M) ..5..
complaint was filed on 29.03.2012 i.e. beyond the period of three years which is hit by the provisions contained in Section 468, Cr.P.C. For the sake of brevity Section 468, Cr.P.C is reproduced below:-
"468 Bar to taking cognizance after lapse of the period of limitation:
(1) Excecpt 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 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 sever punishment."
A perusal of the above provision clearly spells out that for the offences for which the maximum sentence of imprisonment is up to three years, the complaint could be filed within three years. According to Section 29 of the Insecticides Act for commission of the first offence, the defaulter could be Criminal Misc. No.M-18077 of 2011 (O&M) ..6..
awarded the sentence of imprisonment up to 2 years besides payment of fine up to Rs.50,000/-.
The comparative study of Section 468, Cr.P.C and Section 29 of the Insecticides Act clearly shows that the complaint (Annexure P-2) filed by the respondent for prosecution of the petitioners was presented beyond the period of limitation, therefore, the learned Sub Divisional Judicial Magistrate, Talwandi Sabo, was not competent to take cognizance of the same without there being any prayer for condonation of delay. Perusal of the complaint shows that no such prayer has been made while filing the complaint.
So far as the second contention of the learned counsel for the petitioners with regard to the lifting of the sample from a sealed container is concerned, the same is not substantiated at this stage. It is a disputed question of fact which has to be gone into by the learned trial court during the course of trial. Mere averment in the present petition and making of submissions in this regard before this court would not be sufficient to extend the benefit of this ground to the petitioners as there is no clinching material on record to support such an averment at this stage.
Keeping in view the fact that the impugned complaint was filed beyond the statutory period of limitation, it is held that the learned Sub Divisional Judicial Magistrate was not competent to take cognizance of the matter and as such, the impugned complaint and consequential proceedings arising therefrom, are hereby quashed.
Criminal Misc. No.M-18077 of 2011 (O&M) ..7..
The Criminal Miscellaneous is allowed.
October 08 , 2012 (Naresh Kumar Sanghi) seema Judge