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2001 DIGILAW 1246 (PNJ)

M. L. Industries v. State Of Haryana

2001-11-07

V.M.JAIN

body2001
Judgment V.M.Jain, J. 1. This is a petition under Section 482 Cr.PC filed by the accused petitioners, seeking quashment of the criminal complaint under the Insecticide Act and the rules framed thereunder and all subsequent proceedings taken thereon. 2. Accused petitioner No. 1 M/s M.L. Industries is the manufacturer of the insecticide which was found to be misbranded, not only by the State Quality Control Laboratory, Karnal but later on also by the Central Insecticide Laboratory, Hyderabad, under Section 24(2) and 24(4) of the Insecticide Act, 1968 respectively. Accused petitioners 2 and 3 namely Dr. Harish Manchanda and Arjun Lal Chandani are the two partners of the said firm and out of these the petitioners, petitioner No. 3 is the responsible person on behalf of the petitioner No. 1-manufacturing company. The Sub Divisional Agriculture Officer, on behalf of the State of Haryana, filed the criminal complaint under Section 29(3) of the Insecticide Act, 1968 and the rules made thereunder for violation of the various provisions of the Insecticide Act, against the accused petitioners (manufacturer and its partners) and also against the dealer M/s Surinder Pal and Company and its proprietor Surinder Pal. The said complaint is dated 17.8.1992, copy Annexure P2. On the same day the accused were ordered to be summoned by the learned CJM, Sirsa. Accused petitioners filed the present petition dated 3.10.1996, seeking quashment of the criminal complaint, summoning order and all subsequent proceeding taken thereon. Inter alia, it was alleged that as per the complaint, the sample was drawn on 29.8.1991 and the manufacturing date of the insecticide was July, 1991 and the expiry date was June, 1992, whereas complaint was filed on 17.8.1992 and by that time the shelf life of the insecticide had already expired and there was no time with the accused petitioners to get the sample re-analysed from the Central Insecticide Laboratory, as provided under Section 24(4) of the Insecticide Act. It was alleged that in this manner, the petitioners were deprived of exercising their right of getting the sample re-analysed from the Central Insecticide Laboratory. It was further alleged that in the complaint it had not been specifically alleged that petitioners 2 and 3 were "incharge of the business of the petitioner No. 1 and were responsible for the business of the petitioner No. 1". It was alleged that on this ground as well, the complaint is required to be quashed. It was further alleged that in the complaint it had not been specifically alleged that petitioners 2 and 3 were "incharge of the business of the petitioner No. 1 and were responsible for the business of the petitioner No. 1". It was alleged that on this ground as well, the complaint is required to be quashed. 3. In the written statement filed by Rohitash Kumar, Sub Divisional Agriculture Officer, Dabwali, on behalf of the State of Haryana, it was admitted that the insecticide was manufactured in July, 1991 and its shelf life was upto June, 1992 and that the sample was drawn on 28.8.1991. It was alleged that as per report of the State Quality Control Laboratory, Karnal dated 13.9.1991, the sample was found to be mis-branded. It was further alleged that a copy of the said report was sent to the dealer on 19.9.1991 and that the dealer applied to the court of CJM, Sirsa on 17.2.1991. The said court sent the second portion of the sample for re-analysis by the Central Insecticide Laboratory, Hyderabad under Section 24(4) of the Insecticide Act. It was alleged that the Central Insecticide Laboratory sent the analysis report to the Court of CJM, Sirsa and the said court had sent a copy thereof to the applicant dealer M/s Surinder Pal and Company. It was alleged that even the Central Insecticide Laboratory, vide its report Annexure R1, also found the sample to be mis-branded. It was alleged that there was a relationship of principal and agent between the petitioners, being the manufacturer and M/s Surinder Pal and Company, being the dealer. It was alleged that the dealer/agent getting the sample re-analysed from the Central Insecticide Laboratory and the accused petitioners being the manufacturer/principal were bound by the said report of the Central Insecticide Laboratory. It was alleged that on this ground the filing of the criminal complaint after the expiry of the shelf life of the insecticide would be of no consequence. It was further alleged that even otherwise under the Insecticide Act, the analysis report has to be supplied only to the dealer from whom sample was drawn and not to the manufacturer. It was further alleged that in the criminal complaint, it was alleged that present petitioners were manufacturers of the insecticide which was found to be mis- branded and they were incharge of the manufacturing concern and liable for prosecution. 4. It was further alleged that in the criminal complaint, it was alleged that present petitioners were manufacturers of the insecticide which was found to be mis- branded and they were incharge of the manufacturing concern and liable for prosecution. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. Learned counsel for the petitioners made two submissions before me at the time of the arguments. First submission was that since the complaint was filed after the expiry of the shelf life of the insecticide, the petitioners being manufacturers of the insecticides were deprived of getting the second sample re-analysed from the Central Insecticide Laboratory, as provided under Section 24(4) of the said Act. However, I find no force in this submission of the learned counsel for the accused petitioners. Under Section 24(2) of the Insecticide Act, it is provided that after the Insecticide Analyst has sent a report "in duplicate" in the prescribed form to the Insecticide Inspector, the Insecticide Inspector shall deliver one copy of the report "to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample". Under Section 24(3) of the Insecticide Act, it is provided that the person from whom the sample was taken may within 28 days of the receipt of a copy of the report notify in writing the Insecticide Inspector or the court that he intends to adduce evidence to controvert the report of the Insecticide Analyst, failing which the said report of the Insecticide Analyst shall be conclusive. Under Section 24(4) of the Insecticide Act, it is provided that unless the sample has already been tested, or analysed in the Central Insecticide Laboratory, where a person has under sub-section (3), notified his intention of adducing evidence to controvert the Insecticide Analysts report, the court may, of its own motion or in its discretion at the request of either side, cause the sample of the insecticide, produced before the Magistrate, to be sent for test or analysis to the Central Insecticide Laboratory, which shall make the test or analysis and report in writing the result thereof and "such report shall be conclusive evidence of the facts stated therein". 6. 6. From a perusal of the above, in my opinion, it would be clear that under Section 24(2) of the Insecticide Act, 1968, Insecticide Inspector is obliged to deliver one copy of the report of the Insecticide Analyst only to the person from whom the sample was taken and under Sub-section (3) of the Section 24 of the Act, the person from whom the sample was taken can apply to the court within 28 days of the receipt of the copy of the said report that he intends to adduce evidence to controvert the said report failing which the report of the Insecticide Analyst shall be conclusive. Under Section 24(4) of the said Act, the court is empowered to send the sample for re-analysis before the Central Insecticide Laboratory, if the sample has not been analysed by the Central Insecticide Laboratory. In the present case, the sample was drawn from M/s Surinder Pal and Company and after the receipt of the report of the Insecticide Analyst, a copy of the said report was sent to the dealer M/s Surinder Pal and Company and the dealer had exercised his right to get the sample re-analysed and in pursuance thereof, the sample was sent to the Central Insecticide Laboratory for re-analysis and the said Laboratory had also submitted its report, copy Annexure R1. It was found that the sample was mis-branded. Under these circumstances, in my opinion, there was no occasion for the accused petitioners, who are manufacturers of the insecticide, to ask for sending another part of the sample to the Central Insecticide Laboratory for analysis, especially when the Central Insecticide Laboratory had already re-analysed the sample at the instance of the dealer, M/s Surinder Pal and Company. In this view of the matter, in my opinion, even if the complaint was filed after the expiry of the shelf life of the insecticide, yet no fault could be found with the same nor could it be said that accused petitioners have been prejudiced in this regard, especially when the sample had already been sent to Central Insecticide Laboratory (at the instance of the dealer) and the report of the Central Insecticide Laboratory had already been received with the finding that the sample was misbranded. 7. 7. It was then contended before me by the learned counsel for the accused petitioners that in the present case the complainant had filed the complaint not only against the company which had manufactured the insecticide but has also filed the complaint against two partners of the company, namely Dr. Harish Manchanda and Arjun Lal Chandani (petitioners No. 2 and 3). It was submitted that regarding petitioner No. 3, Arjun Lal Chandani, in the title of the complaint, it was alleged that he was responsible person of the manufacturer. No allegation was made about the petitioner No. 2 Dr. Harish Manchanda, as to in what manner he was responsible for the manufacture of the insecticide except mentioning that he was a partner of the said firm which had manufactured the insecticide. It was submitted that in the absence of any allegation that petitioner No. 2 Dr. Harish Manchanda was responsible to the company for the manufacture of the insecticide, petitioner No. 2 could not be prosecuted for the alleged offence. It was further submitted that even petitioner No. 3 Arjun Lal Chandani could not be prosecuted. 8. There is considerable force in the submission of the learned counsel for the accused petitioners, in respect of petitioner No. 2 Dr. Harish Manchanda. Section 33 of the Act reads as under :- 33. 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 the 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. 9. From a perusal of the above, it would be clear that a partnership firm is included in the definition of a company. It would also be clear that where an offence under the Insecticide Act had been committed by a company, every person, who at the time offence was committed, was "incharge 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". In the present case, except mentioning in the title of the complaint that Dr. Harish Manchanda was first partner of the manufacturing firm M/s M.L. Industries, there is no other allegation that he was in any manner incharge of or was responsible to the company (firm). In this view of the matter, in my opinion, so far as accused petitioner No. 2 Dr. Harish Manchanda is concerned, he could not be prosecuted for the alleged offence on behalf of the manufacturer. 10. So far as petitioner No. 3 Arjun Lal Chandani is concerned, he cannot take any benefit of provisions of Section 33 of the Act. It was specifically mentioned in the complaint that he was not only partner of the manufacturing firm but was also responsible person of the manufacturer. Even the petitioners, while filing the present petition had not controverted this allegation of the complainant that petitioner No. 3 Arjun Lal Chandani was partner and responsible person of the manufacturing firm. It was specifically mentioned in the complaint that he was not only partner of the manufacturing firm but was also responsible person of the manufacturer. Even the petitioners, while filing the present petition had not controverted this allegation of the complainant that petitioner No. 3 Arjun Lal Chandani was partner and responsible person of the manufacturing firm. On the other hand, this fact was reiterated by the petitioners in the heading of the present petition under Section 482 Cr.P.C. Even in the body of the petition under Section 482 Cr.P.C., it was nowhere controverted that petitioner No. 3 Arjun Lal Chandani was not the partner and responsible person of the manufacturing firm. In this view of the matter, in my opinion, petitioner No. 3 Arjun Lal Chandani could not take any benefit of the provisions of Section 33 of the Insecticide Act, 1968. No other point has been raised before me. 11. For the reasons recorded above, the present petition is partly allowed, in respect of petitioner No. 2 Dr. Harish Manchanda and the criminal complaint, summoning order and subsequent proceedings taken thereon in respect of petitioner No. 2 Dr. Harish Manchanda are quashed. So far as petitioners No. 1 and 3 namely M/s. M.L. Industries and Arjun Lal Chandani are concerned, there is no merit in this petition and the same is dismissed qua these two petitioners. 12. Since further proceedings before the trial court were stayed by this Court, vide order dated 19.12.1996, parties (petitioners 1 and 3) and complainant-respondent, through their counsel, are directed to appear before the learned trial Magistrate on 12.12.2001 for further proceedings in accordance with law. Learned Magistrate shall proceed to dispose of the complaint expeditiously considering that the same is pending since 1992.