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2002 DIGILAW 1019 (PNJ)

Surinder Kuar v. State Of Punjab

2002-10-04

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Surinder Kaur and Kulwant Kaur seek quashing of the complaint under Sections 3-K, 17, 18, 29 and 33 of the Insecticides Act, 1968 (hereinafter referred to as `the Act of 1968) read with Rule 27(5) of the Insecticides Rules, 1971, filed by State of Punjab through Insecticides Inspector, Bathinda, wherein petitioner-accused as well as their co-accused Inder Singh and Lallinder Singh Dhindsa, Managing Director, M/s. Bharti Minerals, 304-A, 35/36, Bhandari House, Dr. Mukherjee Nagar Complex, Delhi, who have been arryaed as respondent Nos. 2 and 3 respectively, had been summoned as accused to face trial as per order dated 17.12.1998 by the Chief Judicial Magistrate, Bathinda. 2. In order to focus the controversy involved in the present petition, a few facts need to be noticed. 3. On 5.8.1992, Pirthipal Singh Narula, Inspector Insecticide, Bathinda inspected the shop of M/s. Makkar & Company in the presence of Nand Pal Singh, Agricultural Development Officer, Bathinda. Out of 44 liters Fenrel rate 20% EC, 3 samples 250 ml. each were taken as representative sample of Fenrel rate 20% EC whose Batch Number was 01, manufacturing date was June 92 and expiry date was May, 1994. It was manufactured by M/s. Bharti Minerals Private Limited. On analysis by the Testing Laboratory, Faridabad, the sample in question was found to contain 13.2% active ingredient of Fenrel instead of 20% EC and thus did not conform to the prescribed active ingredients. Hence the same was declared mis-branded in terms of Section 3K(1) of the Act of 1968. Copy of the report of analysis was delivered to the dealer as well as manufacturer. Both of them were served with show cause notices as laid under Section 23(2) of the Act of 1968 vide letter Nos. 12563 dated 16.10.1982 and 12559 dated 16.10.1995 sent by the Chief Agricultural Officer, Bathinda. Thereafter the dealers applied for re-anlaysis of the second sample from the Central Insecticide Laboratory through Court which was also declared mis- branded. On these allegations, the complaint had been filed against the petitioner-accused and their co-accused. 4. 12563 dated 16.10.1982 and 12559 dated 16.10.1995 sent by the Chief Agricultural Officer, Bathinda. Thereafter the dealers applied for re-anlaysis of the second sample from the Central Insecticide Laboratory through Court which was also declared mis- branded. On these allegations, the complaint had been filed against the petitioner-accused and their co-accused. 4. Counsel representing the petitioners-accused while seeking quashing of the complaint, made many-fold submissions before me : firstly, that the sample in question was taken from the shop of the petitioner on 5.8.1992 while the complaint was instituted on 25.1.1996, and the complaint being barred by limitation, cognizance of the allegations made in the complaint could not have been taken by the Magistrate. Secondly, there was no allegation made in the report lodged that the petitioners were responsible for the conduct of the business of M/s. Makkar and Company and the petitioners being Parda Nashin Ladies and not being active functioning partners, prosecution could not be launched against them. Thirdly, sanction for prosecution of the petitioners- accused had not been granted by the Controller and rather it was given by the Joint Director, A.S.D.P., Punjab Chandigarh, who had no authority to sanction prosecution of the petitioners. Lastly, that the sample was drawn from a sealed container which had been manufactured by respondent No. 3 and as there were no allegations of tampering with the seal of the container in any manner, petitioners could not be made to face the prosecution qua the contents of the container. These submissions were countered from the side of the respondents. It was pointed out by the State counsel that delay in lodging the report occurred because sanction for the prosecution of the petitioners-accused was granted by the Joint Director, A.S.D.P., Punjab Chandigarh on 18.11.1993 and on this account as well as administrative reasons, the complaint came to be filed on 25.1.1996 and taking into consideration these circumstances, the trial Court had condoned the delay as was spelled out from the order dated 17.12.1998. Reliance was placed on the observations made in Mihir Kumar Dutta v. B. Mukherjee and another, 199(1) RCR(Criminal) 100. Reliance was placed on the observations made in Mihir Kumar Dutta v. B. Mukherjee and another, 199(1) RCR(Criminal) 100. It was further contended that question of delay was inter-linked with the question of law and it is only after leading evidence, it can be established whether complainant had been able to establish the circumstances which led to the delay in filing of the complaint and whether any prejudice had resulted to be accused on that account. With regard to the stand taken on behalf of the petitioners that they were not actively involved in the conduct of M/s. Makkar and Company, it was pointed out that they had earlier filed Criminal Revision No. 43 dated 30.7.1996 which was dismissed by the Court of Additional Sessions Judge, Bathinda, on 28.10.1997 and that order having not been challenged had attained finality and for that reason, the petitioners cannot re-agitate the matter. Apart from the above position, definite accusations had been made against the petitioners-accused that they were responsible for the conduct of business of their firm and these specific allegations have to be determined on the basis of evidence brought on record. The case is at the initial stage and evidence has not been recorded so far. With regard to the protection granted to the dealer under Section 33 of the Act of 1968, reference was made to the fact that sample in question was taken from loose packing and in view of the position explained in case M/s. Punjab Pesticide v. State of Punjab, 1998(4) RCR(Crl.) 648, no benefit could be derived by the petitioners. Regarding the sanction granted, it was urged that the sanction had been granted by the competent authority as envisaged under the provisions of Act of 1968. 5. Dealing with the submissions made, it is manifest from the complaint placed on record that, Kulwant Kaur and Surinder Kaur petitioners arrayed as respondent Nos. 2 and 3 respectively in the complaint had been described alongwith Inder Singh as dealers being partners of M/s. Makkar Singh and Company. It was specifically stated in para 8 of the complaint that Inder Singh, Kulwant Kaur and Surinder Kaur, partners of M/s. Makkar and Company as dealers and M/s. Dallinder Singh Dhindsa, Managing Director, M/s. Bharti Minerals, 304-A, 35/36, Bhandari House, Dr. It was specifically stated in para 8 of the complaint that Inder Singh, Kulwant Kaur and Surinder Kaur, partners of M/s. Makkar and Company as dealers and M/s. Dallinder Singh Dhindsa, Managing Director, M/s. Bharti Minerals, 304-A, 35/36, Bhandari House, Dr. Mukherjee Nagar Complex, Delhi have been selling, distributing and formulating the mis-branded insecticide and thus they have committed offence under Sections 3k(1), 17, 18 and 33 of the Insecticides Act punishable under Section 29 of the Act of 1968. It has been settled by the Apex Court in Anil Handa v. Indian Acrylic Limited, 2000(1) RCR(Criminal) 1 :- "Normally an offence can be committed by human beings who are natural persons. Such offence can be tried according to the procedure established by law. But there are offences which could be attributed to juristic person also. If the drawer of a cheque happens to be a juristic person like a body corporate it can be prosecuted for the offence under Section 138 of the Act. Now there is no scope for doubt regarding that aspect in view of the clear language employed in Section 141 of the Act. In the expanded ambit of the word "company" even firms or any other associations of persons are included and as a necessary adjunct thereof a partner of the firm is treated as director of that company." 6. Under the provisions of Section 141 of the Negotiable Instruments Act, it is specifically provided that if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of and 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. Same procedure is contained under Section 33 of the Act of 1968. Same procedure is contained under Section 33 of the Act of 1968. That being position, notice has also to be taken to the observations made in case P. Rajarathinam v. State of Maharashtra and others, 2001 SCC (Criminal) 1502, wherein while dealing with the offences committed by the company in terms of Section 141 of the Negotiable Instruments Act, 1981, it was observed as under :- "Section 141 of the Negotiable Instruments Act mandates that some facts must come on the record in order to figure as to who should answer the charge ultimately. Necessarily, pre-charge evidence assumes importance. The complainant will have to put his side of the case as given out in the complaint and the persons summoned would have to put on the record all what is material to extricate themselves out. In any case, the crucial time would be when framing charge whereat a decision in that respect would be required to be made by the Court. Presently, it would be premature to resolve the conflict. Therefore, it would be for the court concerned to pass appropriate orders at the time of framing of charge." 7. The ratio of the above mentioned case would apply to the facts of the present case as well. I have already referred to the allegations made by the complainant against the petitioners-accused. Merely because it has not been mentioned in the complaint that petitioners were incharge and were responsible for the conduct of the business of M/s. Makkar and Company at the time of commission of the alleged offence would not debar the prosecution at this stage to substantiate the allegations made in the complaint. There is no magic value involved in these words. Primary requirements of the provisions of Section 33(1) of the Act of 1968 have to be read after taking into account the complaint in its entirety. Moreover, it is not the stage to reject the complaint on this ground alone. The stand of the petitioners that they were not active partners of the above named concern has to be decided during the trial of the case. Therefore there is no merit in the submission made in this regard. Coming to the other stand taken, it is manifest from the record that the sample was taken on 5.8.19892. Complaint was filed on 25.1.1996. Therefore there is no merit in the submission made in this regard. Coming to the other stand taken, it is manifest from the record that the sample was taken on 5.8.19892. Complaint was filed on 25.1.1996. The sample was analysed on 25.9.1992 and thereafter copy of report was supplied to the petitioner on 16.10.1992. Petitioner-accused had applied for re-analysis of the sample in terms of Section 24(4) of the Act of 1968 on 12.11.1992. Report in this regard was received by the Court on 6.1.1993. Sanction for the prosecution of the petitioners-accused was granted by the Joint Director, A.S.D.P. on 11.8.1993. The complaint was filed on 25.1.1996 so as to say after the expiry of a period of more than three years from the date of the sample had been taken. Taking notice of the above facts and the fact that the period of limitation in filing the complaint is three years from the date of receipt of report of analysis which can also be extended in case delay was occurred on administrative grounds, the trial Magistrate came to the conclusion that the complaint had been filed within the period of limitation. 8. In the given circumstances of the case, no fault can be found with the finding of the learned Magistrate in this regard. Moreover the Magistrate can take into consideration the circumstances of the case and on being satisfied, can also extend the period of limitation if warranted on the basis of material placed on record by the complainant. There is thus no force in the stand taken on behalf of the petitioners. As regards the sanction granted, it is clear from the record that Joint Director had given the permission to prosecute the petitioners-accused. The stand of the State is that Joint Director was competent to grant sanction to launch the prosecution against the petitioners-accused in terms of the notification issued under the Act of 1968. In fact, the petitioners have not chosen to place on record the sanction order. Section 31 of the Act of 1968 clearly lays down that prosecution can be instituted with the written consent of the person authorised by the State Government. In view of the stand taken on behalf of the respondents, there is no merit in the submission made on behalf of the petitioners and the same has to be rejected. Section 31 of the Act of 1968 clearly lays down that prosecution can be instituted with the written consent of the person authorised by the State Government. In view of the stand taken on behalf of the respondents, there is no merit in the submission made on behalf of the petitioners and the same has to be rejected. As regards the last submission, it is clear from the allegations made in the complainant that 44 liters Fenrel rate 20% EC.I was kept at the shop of the accused at the time it was inspected by the Insecticide Inspector and the sample was drawn from the loose packing. That being so, benefit of Section 30 of the Act of 1968 would not be available to the petitioner-accused. For the reasons aforesaid, there is no merit in the petition and the same is accordingly dismissed. Petition dismissed.