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2001 DIGILAW 1422 (PNJ)

Gurcharan Singh v. State Of Punjab

2001-12-21

V.M.JAIN

body2001
Judgment V.M.Jain, J. 1. This is a petition under Section 482 Cr.P.C. filed by the accused-petitioner, seeking the quashment of the criminal complaint under the Provisions of the Insecticides Act, 1968 and the Insecticides Rules, 1971 and all consequential proceedings taken on the said complaint. 2. In the petition, it was alleged that the petitioner was a dealer under the Insecticides Act, 1968 and had obtained a licence for selling the insecticides after purchasing the same from approved sources/manufacturers. It was alleged that on 12.6.1991, the Insecticide Inspector had taken the sample of insecticide, which was manufactured in May, 1991, having expiry date of April, 1993, from the premises of M/s Friends Kheti Bari Centre Sidhwan Bet. It was alleged that the said insecticide was manufactured by M/s Tropical Agro Systems Ltd., Madras. It was alleged that the petitioner after purchasing the said insecticides from the manufacturer had supplied the same to the said dealer. It was alleged that the said sample was sent to the Insecticide Testing Laboratory, Ludhiana for testing and it was found to be misbranded as per the test report, copy Annexure P-1. It was alleged that on receipt of the said report, the complainant filed a criminal complaint, copy Annexure P-3, after obtaining the consent, copy Annexure P-2. It was alleged that the criminal complaint, summoning order and all subsequent proceedings taken thereon against the petitioner were liable to be quashed, inter alia on the ground that the petitioner was a dealer, who had purchased the insecticide from the manufacturer and had sold the same to the retailer in the same condition as he had purchased it from the manufacturer. It was alleged that the petitioner was entitled to the protection under Section 30(3) of the Insecticides Act. It was alleged that the Insecticide Inspector had taken the sample from the original sealed container. It was alleged that the petitioner was deprived of his statutory and legal right to get the sample re-analysed from the Central Insecticides Laboratory, under Section 24(4) of the Insecticides Act, as the petitioner was not served with a copy of the test report. It was further alleged that the consent/sanction given under Section 31 of the Insecticides Act for the prosecution of the petitioner was not valid because it was on a cyclostyled proforma, copy Annexure P-1. It was further alleged that the consent/sanction given under Section 31 of the Insecticides Act for the prosecution of the petitioner was not valid because it was on a cyclostyled proforma, copy Annexure P-1. It was alleged that in the said consent letter, no details were given as to who had taken the sample and what was the result of the test report etc. It was alleged that in the said consent letter, only the names of the dealers, distributor and manufacturers were mentioned. It was alleged that the said complaint was liable to be quashed on this ground alone. 3. In the written filed by Shri Darshan Singh, Insecticides Inspector, it was alleged that the sample was taken from M/s Friends Kheti Bari Centre Sidhwan Bet from 5 litre capacity and that the sample was found misbranded. It was alleged that the said sample was supplied by M/s Khalsa Kheti Bari Centre, Railway Road, Jagraon and that it was manufactured by M/s Tropical Agro Systems Limited. It was alleged that M/s Khalsa Kheti Bari Centre was fully responsible for the supply of the misbranded insecticide to the dealer, where the sample was taken. It was alleged that after receipt of the test report, the Chief Agriculture Officer, Ludhiana, had given show cause notice to the petitioner as also to the dealer firm and the manufacturing company. It was alleged that the petitioner in his written reply had not made any request for re-analysis of the sample and as such re-analysis of the sample was not done. It was alleged that the analysis report was served upon the petitioner within the stipulated period. It was alleged that the sanction was given by the competent authority and that the same was legal and valid. 4. It have heard the learned counsel for the parties and have gone through the record carefully. 5. In the present petition, two points were raised before me by the learned counsel for the accused-petitioner. 6. The first point was that the sample was taken from a sealed container and as such the petitioner, being a dealer, was entitled to the benefit of Section 30(3) of the Insecticides Act. 5. In the present petition, two points were raised before me by the learned counsel for the accused-petitioner. 6. The first point was that the sample was taken from a sealed container and as such the petitioner, being a dealer, was entitled to the benefit of Section 30(3) of the Insecticides Act. On the other hand, the learned counsel for the complainant-respondent has submitted before me that the petitioner was not a dealer but was supplier and as such he was not entitled to the benefit of Section 30(3) of the Insecticides Act. 7. Section 30(3) of the Insecticides Act, 1968 reads as under :- "A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves - (a) that he acquired the insecticides from an importer or a duly licensed manufacturer, distributor or dealer thereof; (b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and (c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it". 8. From the perusal of the above, it would be clear that a person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof and that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act and that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it. 9. In the present case, admittedly the sample was not taken from the petitioner. On the other hand, the sample was taken from M/s Friends Kheti Bari Centre Sidhwan Bet. Thus, M/s Friends Kheti Bari Centre Sidhwan Bet, would be the dealer in this case, who had purchased the insecticide from the present petitioner, being the proprietor of M/s Khalsa Kheti Bari Centre, Jagraon. Admittedly, the said sample was manufactured by M/s Tropical Agro Systems Ltd., Madras. Thus, M/s Friends Kheti Bari Centre Sidhwan Bet, would be the dealer in this case, who had purchased the insecticide from the present petitioner, being the proprietor of M/s Khalsa Kheti Bari Centre, Jagraon. Admittedly, the said sample was manufactured by M/s Tropical Agro Systems Ltd., Madras. Prima facie, it would be clear that the present petitioner being the proprietor of M/s Khalsa Kheti Bari Centre, had obtained the insecticide from M/s Tropical Agro Systems Ltd. for the purposes of distribution thereof and had distributed the same to the dealer M/s Friends Kheti Bari Centre, Sidhwan Bet. Prima facie, at this stage in my opinion, it could not be said that the present petitioner himself was a dealer or was entitled to the benefit of Section 30(3) of the Insecticides Act, referred to above. In the criminal complaint, copy Annexure P-3, present petitioner Gurcharan Singh (Proprietor of M/s Khalsa Kheti Bari Centre) had been described as the "distributor". Thus, even according to the allegations made in the complaint, Gurcharan Singh petitioner was being prosecuted being the distributor of the insecticide, which was found to be sub-standard/misbranded. The question as to under what terms and conditions, present petitioner Gurcharan Singh had supplied the said insecticide to M/s Friends Kheti Bari Centre, Sidhwan Bet, cannot be decided at this stage. On the other hand, these facts have to be proved on the basis of the evidence led by the parties. It is admitted case of the petitioner himself that he had supplied the said insecticide to M/s Friends Kheti Bari Centre, Sidhwan Bet (dealer). Under these circumstances, merely because the petitioner himself had taken licence for dealer, in my opinion, would not be enough to hold that the petitioner was a dealer and was not a distributor/agent. As referred to above, this question would be considered by the trial Court, on the basis of the evidence led before it by the parties. 10. In view of the above, the first point raised before me by the learned counsel for the accused-petitioner is repelled. 11. It was then submitted before me by the learned counsel for the accused- petitioner that the sanction order, copy Annexure P-2, was invalid inasmuch as it does not give the details, inasmuch as it does not show any application of mind. It was submitted that the sanction was given in a cyclostyled proforma. 11. It was then submitted before me by the learned counsel for the accused- petitioner that the sanction order, copy Annexure P-2, was invalid inasmuch as it does not give the details, inasmuch as it does not show any application of mind. It was submitted that the sanction was given in a cyclostyled proforma. Reliance was placed on the cases reported as "Manjit Singh v. State of Punjab", 1994(1) RecentCR 650 and "Narinder Singh v. M/s Chemico Pesticide Combines", 1999(2) RCR(Criminal) 311. 12. However, I find no force in this submission as well of the learned counsel for the accused-petitioner. 13. Annexure P-2 is the copy of "Written consent/sanction under Section 31(1) of the Insecticides Act, 1968 ." A perusal thereof would show that the Joint Director Agriculture, exercising the powers under Section 31(1) of the Insecticides Act, had given his consent/sanction to Shri Darshan Singh, Insecticide Inspector to prosecute M/s Friends Kheti Bari Centre, Sidhwan Bet (dealer), M/s Khalsa Kheti Bari Centre (distributor) and M/s Tropical Agro Systems Ltd., Madras (manufacturer). The said consent/action order would further show that Joint Director Agriculture had clearly mentioned in the said consent/sanction order that he was fully satisfied from the relevant record which was produced before him, in respect of the sample taken from M/s Friends Kheti Bari Centre Sidhwan Bet (dealer) that the said dealer had contravened the provisions of Sections 3(k)(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with Section 27(5) of the Insecticides Rules. It was also mentioned therein that exercising the powers which have been conferred upon him under Section 31(1) of the Insecticides Act, he was granting the necessary consent/sanction for the prosecution of the said dealer, the distributor and the manufacturer, referred to above. 14. Section 31(1) of the Insecticides Act, 1968 provides that no prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorised in this behalf by the State Government. In the present case, the written consent/action was granted by the Joint Director Agriculture, who had been authorised by the State Government under Section 31(1) of the Insecticides Act. 15. From the perusal of the consent/action order, copy Annexure P-2, it would be clear that the Joint Director Agriculture had granted the sanction after perusal of the relevant record, which was produced before him. 15. From the perusal of the consent/action order, copy Annexure P-2, it would be clear that the Joint Director Agriculture had granted the sanction after perusal of the relevant record, which was produced before him. Under these circumstances, in my opinion, at this stage, it could not be said that the sanction order was passed by the Joint Director Agriculture without any application of mind or that the sanction order was passed without any material or basis. On the facts and circumstances of the present case, it also could not be said that the sanctioning authority had not pointed out the relevant particulars, on the basis of which the prosecution was based, which may entitle the accused-petitioner to seek the quashment of the criminal complaint and all subsequent proceedings taken thereon, at this stage, when the case is still at the stage of recording evidence. 16. In "Hari Sigh Verma v. State of Haryana", 1997(1) RCR 156, the consent order contained a specific averment that the Director of Agriculture Haryana, who was the competent authority under the said Act, had accorded his consent for the prosecution of the accused. Under those circumstances, it was held by this Court that the question as to what record was produced before him and whether he applied his mind before granting his consent, is a question of fact which could be determined only after taking evidence during the trial and such a question could not be decided on affidavit evidence. Similar view was taken by this Court, in the case titled as "M/s Agro Chemical, Jaipur v. Punjab State", bearing Criminal Misc. No. 11079-M of 1992, decided on October 1, 2000, in which the law laid down by this Court in Hari Singh Vermas case (supra) was followed. 17. The two authorities relied upon by the learned counsel for the accused- petitioner, in my opinion, would have no application to the facts of the present case. In 1999(2) RCR 311 (supra), this Court had placed reliance on the order dated 25.4.1997, passed in Criminal Misc. No. 21850-M of 1996 filed by Rajinder Singh and two others, inasmuch as in both the cases, the sanction order was the same and in Rajinder Singhs case (supra), it was found that the said sanction order was invalid. Relying the law laid down in the said order, Narinder Singhs case (supra) was also decided. No. 21850-M of 1996 filed by Rajinder Singh and two others, inasmuch as in both the cases, the sanction order was the same and in Rajinder Singhs case (supra), it was found that the said sanction order was invalid. Relying the law laid down in the said order, Narinder Singhs case (supra) was also decided. From the perusal of Narinder Singhs case (supra), it is not clear as to whether the entire file was also before the sanctioning authority before the consent/sanction order was passed. Thus, the law laid down in this authority, would have no application to the facts of the present case. In 1994(1) RCR 650 (supra) as well, there is nothing on the record to show that the sanction order was passed without perusing the relevant file. Under these circumstances, in my opinion, the law laid down in this authority would also have no application to the facts of the present case. 18. In view of my detailed discussion above, even the second point raised before me by the learned counsel for the accused-petitioner is repelled. However, it made clear that the question as to whether the sanction granted by the Joint Director Agriculture was valid or otherwise, would be gone into by the trial Magistrate, after the evidence is led by the parties and the sanction order is proved, in accordance with law. 19. No other point has been urged before me in this petition. 20. For the reasons recorded above, finding no merit in this petition, the same is hereby dismissed. 21. Since further proceedings qua the petitioner were stayed by this Court, the parties through their counsel are directed to appear before the learned trial Magistrate on 22.1.2002 for further proceedings, in accordance with law.