Judgment : Petitioners, three in number,are A-1 to A-3 in C.C.No.53 of 1991 pending on the file of of Judicial Magistrate No.1, Tiruttani. They are being prosecuted along with two others, arrayed as A-4 and A-5, for having allegedly violated Sec.3(k)(i) of the Insecticides Act, 1968 punishable under Sec.29(1)(a) of the same Act, on a private complaint initiated by respondent, who is, Agricultural Officer (Plant Protection), Pallipet. 2. Allegations in the complaint show that the first petitioner is the Chairman of the firm E.I.D. Parry (India) Limited, which had manufactured misbranded chemical Monocrotophos 36% SL which is involved in the process of manufacturing insecticides vide Sec.3(k)(i) of the Act. The second petitioner has also been similarly described as the Chairman of E.I.D. Parry (India) Limited. The third petitioner has been shown in the complaint as the Chemist of the firm E.I.D. Parry (India) Limited, who was responsible for the manufacture of quality insecticides. A-4 has been shown as the distributor who had supplied misbranded chemical manufactured by E.I.D. Parry (India) Limited, to the retail dealer. A-5 is the retail dealer concerned. 3. Respondent inspected, premises of A-5 on 8. 1990, situate in R.K.Pet Village, in Pallipet Taluk, and obtained three portions of representative samples of Monocrotophos 36% SL, each containing 250 ml. with batch No.J-1. This Monocrotophos, according to A-5, was manufactured by E.I.D. Parry (India) Limited. One portion of the sample was handed over to A-5 under acknowledgement, while the other was forwarded to Pesticides Testing Laboratory, Kancheepuram, on the next day. The third portion was kept in the custody of the Assistant Director of Agriculture, Pallipet. The report of the analyst declared the sample to be misbranded, since it differed from declared nominal value by more than the permissible tolerance limit of 5 per cent. Explanations were called for, from E.I.D. Parry (India) Limited and A-4 and A-5 in respect of manufactured misbranded chemical, as to why action should not be taken according to the merits of the case, after considering the explanations to be offered. The complaint shows that the explanations received were not satisfactory and hence the impugned complaint was the necessary consequence. 4. The complaint shows that the explanations received were not satisfactory and hence the impugned complaint was the necessary consequence. 4. In this petition preferred under Scc.482, Crl.P.C. to call for the records and quash the pending prosecution is not maintainable and an abuse of process of court, Mr.K.Giridhara Rao, learned counsel appearing on behalf of the petitioner contended, that these petitioners cannot be prosecuted, without impleading E.I.D. Parry (India) Limited,which is the manufacturing company. He then argued, that nowhere in the complaint, it has been averred, that these petitioners were in charge of and responsible to the company, for the conduct of the business of the company, at the time, when the offence was committed. The emphasis was, that if this minimum requirement is not available in the complaint, cognizance could not have been taken and process issued. 5. On these two grounds, I have heard Mr.A.N. Rajan, learned Government Advocate. He contended that the petitioners can be prosecuted without impleading the company as an accused in the impugned complaint, for all that was required ultimately was a finding that the company was guilty. On the second ground, he submitted, that once it is alleged in the complaint that the petitioners were either the Chairman or Chemist of the firm concerned, that would suffice to entertain the complaint and the defence, if any, would have to be placed before the trial court, for appreciation. 6. The first contention, though appears to be attractive, has no strength in it. In Sheoratan Agarwal v. State of U.P., A.I.R. 1984 S.C. 1824, while considering a provision in Essential Commodities Act, identical to Sec.33 of the Insecticides Act, Supreme Court stated as follows: "Sec.10 does not state that if the person contravening the order made under the Essential Commodities Act is a company, the prosecution of the Directors, the Officers, and servants of the company or other persons is precluded unless the company itself is prosecuted. There is no statutory compulsion that the person in charge or any officer of the company may not be prosecuted unless he be ranged alongside of the company itself. Sec.10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person in charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Sec.10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person in charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company, Sec.10 lists the person who may be held guilty and punished when it is a company that contravenes an order made under Sec.3 of the Essential Commodities Act. Naturally, before the person in charge or an officer of the company is held guilty in that capacity it must be established that there has been a contravention of the order by the company." Again, in U.P.Pollution Control Board v. M/s. Modi Distillery, A.I.R. 1988 S.C. 1128, the Supreme Court stated as hereunder: "Although as a pure proposition of law in the abstract the learned single Judge’s view that there can be no viceroys liability of the Chairman, Vice Chairman, Managing Director and members of the Board of Directors under Sub-sec.(1) or (2) of Sec.47 of the Act, unless there was a prosecution against M/s.Modi Industries Limited, the company owning the industrial unit, can be termed as correct, the objection raised by the petitioners before the High Court ought to have been viewed not in isolation, but in the conspectus of facts and events and not in vacuum.“ 7. The decision of the Supreme Court in Sheoratan Agarwal v. State of U.P., A.I.R. 1984 S.C. 1824 was not placed for scrutiny in the latter case. On the law laid down by the Supreme Court, it is apparent, that on the first ground, petitioners, cannot succeed. All that would ultimately be required is that before the person in charge or an officer of the company is held guilty in that capacity, it must be established that there has been a contravention of the order by the Company. First ground is rejected. 8. On the second ground, in so far as it relates to petitioners 1 and 2, I hold that they are entitled to succeed, at this stage. I shall offer my reasons presently after considering, the case of the third petitioner, initially. 9. As far as the third petitioner is concerned, he has been described in the cause-title of the complaint, as the Chief Laboratory Chemist of E.I.D. Parry (India) Limited, Ranipet. I shall offer my reasons presently after considering, the case of the third petitioner, initially. 9. As far as the third petitioner is concerned, he has been described in the cause-title of the complaint, as the Chief Laboratory Chemist of E.I.D. Parry (India) Limited, Ranipet. In the body of the complaint, he is stated to be responsible for the manufacture of quality insecticides, if, on the basis of those allegations, insecticides, manufactured under his responsibility and distributed to the retailers, were found to be not in conformity with the prescription, and therefore misbranded, he cannot seek to have the case against him quashed, even at the threshold. It may be open to him during trial, to put forth his defence, that he will not be liable and that inspite of his diligence, the offence stood committed. Further, other defences, open to him, will also be available before the trial Magistrate. 10. As far as petitioners 1 and 2 are concerned, the main thrust of petitioners’ counsel, is that there is not even a whisper or a shred of evidence, to indicate that petitioners 1 and 2 were in charge of and responsible for the conduct of the business of E.I.D. Parry (India) Limited. He pointed out that E.I.D. Parry (India) Limited is not concerned with insecticides alone, but is a firm engaged in manufacture of several other commodities and hence unless specific allegations are made in the complaint to connect them with the manufacture of insecticides, they will not be liable to be prosecuted, on the basis of the impugned complaint. 11. I have already extracted the averments found in the complaint. E.I.D. Parry (India) Limited is the manufacturer of the misbranded chemical. Except that an averment is found, that A-1 and A-2 are the Chairmen of E.I.D. Parry (India) Limited, there is no averment, whatever, that they were in charge and responsible for the conduct of the business of the company relatable to manufacture of Monocrotophos 36% SL. 12. It will be necessary to have a quick look at the case law available on the subject. 12. It will be necessary to have a quick look at the case law available on the subject. In Delhi Munici-pality v. Ram Kishan, A.I.R. 1983 S.C. 67, Supreme Court stated, on the basis of the allegations found in the complaint therein, which read as follows: “That the accused No.3 is the manager of accused No.2 and accused Nos.4 to 7 are the Directors of accused No.2 and as such they were in charge of an responsible for the conduct of business of accused No.2 at the time of sampling”. that so far as the manager was concerned, they were satisfied that from the nature of his duties, it could be safely inferred that he would undoubtedly be vicariously liable for the offence, vicarious liability being an incident of an offence under the Act. So far as the Directors were concerned, there was not even a whisper, nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there was any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In that view, the order of the High Court quashing the prosecution, in so far as it related to Directors of the firm, was affirmed. 13. A similar question was again the subject matter of verdicting by Supreme Court in Municipal Corporation of Delhi v. Purushotam Dass, A.I.R. 1983 S.C. 158. In that case, the allegation in the complaint read thus: “That accused Ram Kishan Bajaj is the Chairman, accused R.P.Neyetia is the Managing Director and accused Nos.7 to 12 are the Directors of the Hindustan Sugar Mills Ltd. and were in charge of and responsible to it for the conduct of its business at the time of commission of offence." After extracting the aforestated averments in the complaint, Supreme Court stated as follows: "Unlike the other case, para.5 of the complaint of this case gives complete details of the role played by the respondents and the extent of their liability. It is clearly mentioned that Ram Kishan Bajaj is the Chairman and R.P. Neyatia is the Managing Director and respondents 7 to 11 are the Directors of the Mill and were in charge of and responsible for the conduct of its business at the time of the commission of the offence whereas in the other case the complaint has merely drawn a presumption without any averment." "In the instant case, a clear averment has been made regarding the active role played by the respondents and the extent of their liability. In this view of the matter, it cannot be said that para.5 of the complaint is vague and does not implicate respondents 1 to 11. As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. We have already held that for the purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further." Janarthanan, J., by his order in M.V. Arunachalam v. T. Karthikeyan, Crl.M.P.No. 8435 of 1988, dated 112. 1990, while quashing a prosecution initiated under the Insecticides Act, stated thus: "So far as the case, on hand is concerned, as respects the petitioner/accused 1, even assuming that he was the Chairman of E.I.D. Parry (India) Ltd., there was no allegation in the complaint, as already stated, that he was in charge of or was responsible to the conduct of the business of the company. By virtue of his being the Chairman of the company, no vicarious liability can be fastened or mulcted upon him for the alleged refraction or violation of the provisions of the Act, unless there be an allegation, as contemplated in the aforesaid section that he was in charge of or was responsible to the conduct of the business of the company at the lime the offence was committed. In the absence of such an allegation, it goes without saying that the prosecution, as launched against the petitioner/accused 1, is not sustainable in law and in this view of the matter, the petition deserves to be allowed." On the basis of the law laid down, it is clear that on the available material in the complaint, cognizance could not have been taken against petitioners 1 and 2 by the learned Magistrate. Connecting link between them and the crime is absent. On that sole ground, this petition is allowed in so far as it concerns petitions 1 and 2, while it shall stand dismissed in respect of the third petitioner. 14. However, the verdict in this petition will not preclude exercise of judicial discretion by the learned Magistrate, under Sec. 319, Crl.P.C., in the event of evidence adduced disclosing the complicity of petitioners 1 and 2 in the offence alleged.