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2002 DIGILAW 804 (PNJ)

Zamidara Pesticides v. State Of Punjab

2002-08-16

SATISH KUMAR MITTAL

body2002
Judgment Satish Kumar Mittal, J. 1. Om Parkash, who is the sole proprietor of firm M/s. Zamidara Pesticides, Abohar, which deals into the sale and stocking of packed pesticides of various companies, has filed the present petition under Section 482 Cr.P.C. for quashing the complaint dated 6.2.1998 (Annexure P-2) Act, 1968 (hereinafter referred to as `the Act) read with rules 27(5) of the Insecticides Rules, 1971 , by Insecticides Inspector, which is pending in the Court of Sub Divisional Judicial Magistrate, Abohar with a further prayer for quashing the consequent proceedings qua him arising thereform. 2. The brief facts of the case are that the petitioner is a whole sale dealer, who deals in sale and stocking of various insecticides and pesticides manufactured by different companies. The petitioner was granted licence by the Chief Agriculture Officer, Ferozepur for the purpose of selling different types of pesticides manufactured by different licensed manufacturers. On the basis of that licence, the petitioner is selling, stocking and exhibiting for sale different types of insecticides and pesticides including that manufactured by M/s. Union Farmaid Private Limited, New Delhi. The petitioner further sold the pesticide manufactured by the aforesaid firm to M/s. Punjab Pesticides Khuian Sarwar, District Ferozepur, from whose shop the sample of the pesticide in question was taken by the Insecticide Inspector on 3.10.1996. On that day, the Insecticide Inspector drew the sample of Oxydomiton Methyle 25% EC manufactured by M/s. Unique Farmaid Private Limited, New Delhi in three original packed containers of Oxydomiton Methyle 25%, each containing 500 MLs. The said sample was sent to the Central Insecticide Laboratory, Government of India, Faridabad where the same was found misbranded as it was not in conformity to the relevant ISI specification in active ingredients/percentage as the sample contained 19.9% EC instead of 25% EC. In view of this report of the Analyst, after obtaining the necessary sanction from the competent authority, the Insecticides Inspector filed the complaint in question against three persons, namely, M/s. Punjab Pesticides Khuian Sarwar (sub-dealer), M/s. Zimidara Pesticides, Abohar (dealer) and M/s. Unique Framaid Private Limited, New Delhi (manufacturer) for committing an offence under Sections 3 (k) (1), 17, 18, 29, and 33 of the Act. All the accused named in the complaint were summoned to face trial. 3. All the accused named in the complaint were summoned to face trial. 3. The petitioner, who is dealer, filed the present petition for quashing complaint dated 6.2.1998, Annexure P-2, on the ground that he is licensed dealer and has been granted licence by the Chief Agriculture Officer, Ferozepur, authorising him to sell and store all the insecticides and pesticides manufactured by M/s. Unique Farmaid Private Limited, New Delhi and other licensed manufacturers. It is submitted that he purchased the insecticide from the licensed manufacturer against the valid bill and was selling the same in its original packing and condition, as obtained by him from the manufacturer. When the sample was taken from the sub dealer to whom he sold the pesticide, seal of the containers containing the insecticide was intact. It has been clearly mentioned in the complaint itself that the sample was taken in three original packed containers. It is averred that the stock of the insecticide was properly stored by the petitioner and the same was always kept in the same condition in which it was acquired from the manufacturer. There is no allegation or averment in the complaint that the petitioner was selling the insecticide in loose condition and the same was not stored in a proper condition or manner. In these circumstances, the petitioner submitted that he is entitled to protection under Section 30(3) of the Act, as he has not committed any offence and the continuation of criminal proceedings against him is nothing but an abuse of the process of the Court. 4. On issuing notice of the present petition, the respondent State filed reply through Insecticides Inspector, Khuian Sarwar stating that the accused, who are the sub dealer, dealer and manufacturer, are liable to be prosecuted under Act. It is alleged that the petitioner has violated the provisions of the Act by storing and selling misbranded insecticides. Sub-dealer was also misbranded insecticides to the petitioner. The manufacturer of the misbranded insecticide, namely M/s. Unique Farmaid Private Limited was also rightly arrayed as an accused. Regarding the protection, as claimed by the petitioners under Section 30(3) of the Act, it is stated that they are entitled to this protection only if they prove by leading evidence during the trial that they fulfil all the ingredients of the aforesaid Section. Therefore, no ground to quash the complaint against the petitioner is made out. 5. Regarding the protection, as claimed by the petitioners under Section 30(3) of the Act, it is stated that they are entitled to this protection only if they prove by leading evidence during the trial that they fulfil all the ingredients of the aforesaid Section. Therefore, no ground to quash the complaint against the petitioner is made out. 5. Counsel for the petitioner submitted that it is apparent from the bare reading of the complaint that the sample in question was taken in original sealed containers of insecticides. There is no averment in the complaint that the petitioner did not properly store the aforesaid insecticides or that he was selling the insecticides in loose condition or that he was having any knowledge that the containers of insecticides, which he was selling, were misbranded. There is also no averment in the complaint that the petitioner could have ascertained, by exercising his due diligence, that the insecticides which he was selling was misbranded. Counsel for the petitioner, then, contended that the absence of these material averments in the complaint goes to the root of the matter and in such circumstances no prosecution can be launched against the petitioner and the complaint filed against him is liable to be quashed, because he is entitled for the protection provided under Section 30(3) of the Act, and the continuation of criminal proceedings against him is nothing but an abuse of process of law. 6. In support of his contentions, counsel for the petitioner has relied upon Amar Khad Store v. State of Punjab, 1996(3), Recent Criminal Reports (Criminal) 140 M/s. Bharat Pesticides v. State of Punjab, 1998(3) Recent Criminal Reports (Criminal) - 189, M/s. Karma Chand and Sons versus State of Punjab, 1998(4). Recent Criminal Reports (Criminal) 383 : [1999(1) All India Criminal Law Reporter 109 (Pb. && Hry.)] Ms Shelja Pesticides Centre, Abohar v. State of Punjab, 1998 (41 Recent Criminal. Reports (Criminal) 533, M/s. Punjab Pesticides v. State of Punjab, 1998(4), Recent Criminal Reports (Criminal), 648. Hardit Singh v. Union of India, 1998 (4) Recent Criminal Reports (Criminal), 865. Safex Chemicals India Limited v. State of Haryana, 2001 1 Recent Criminal Reports (Criminal. 654 : [2001(2) Al1 India Criminal Law Reporter 555 (Pb. & Hry.)] M/s. Satpal Rajpal v. State of Punjab, 2002(1). Recent Criminal Reports (Criminal), 141 : [2002(L) All India Criminal Law Reporter 578 (Pb. Safex Chemicals India Limited v. State of Haryana, 2001 1 Recent Criminal Reports (Criminal. 654 : [2001(2) Al1 India Criminal Law Reporter 555 (Pb. & Hry.)] M/s. Satpal Rajpal v. State of Punjab, 2002(1). Recent Criminal Reports (Criminal), 141 : [2002(L) All India Criminal Law Reporter 578 (Pb. & Hry.) M/s. Onkar Pesticides v. State of Punjab, 2002 (2); Recent Criminal Reports (Criminal), 101 : [2002(2) All India Criminal Law Reporter 541(Pb. & Hry.)]. M/s. Nagra Khad Stores v. State of Punjab, 2002 (2) Recent Criminal Reports (Criminal) 221-M/s. Mahaluxmi Beej Bhandar v. State of Haryana, 2002 (1). All India Criminal Law Reporter 878. decision of this Court in Cr1. Misc, No. 3925-M of 1996, decided on January 31, 1997 M/s. Sachdeva Sales Corporation and another v. State of Haryana, and decision of this Court in Crl. Misc. No. 1413-M of 1997, decided on 12.7.2002, M/s. Mahajan Pesticides etc. v. The State of Punjab. 7. On the other hand, counsel for the State argued that the contentions raised on behalf of the petitioner are actually his defence, which he can raise at the time of trial and only thereafter, it will be seen whether the petitioner is entitled for the protection of Section 30(3) of the Act or not. But in support of her contention, the learned counsel for the State did not cite any case law. 8. After hearing the arguments of the learned counsel of both the parties and examining the record of the case, this Court is of the opinion that the complaint, Annexure P-2, deserves to be quashed qua the petitioner. The protection provided under Section 30(3) of the Act, is available only to the seller and stockist of the misbranded insecticides on their establishing certain conditions mentioned in sub clauses (a), (b) and (c) of Section 30 (3) of the Act. This protection is not, at all, available to the manufacturer or importer of an insecticide or his agent for the distribution thereof. Petitioner herein, is the dealer/distributor of the insecticide in question. He is neither manufacturer nor importer or his agent. The petitioner is the licensed dealer for the sale and stock of different types of insecticides, manufactured by different licensed manufacturers. Petitioner herein, is the dealer/distributor of the insecticide in question. He is neither manufacturer nor importer or his agent. The petitioner is the licensed dealer for the sale and stock of different types of insecticides, manufactured by different licensed manufacturers. He has been authorised by the Chief Agriculture Officer, Ferozepur to sell and stock all the insecticides and pesticides manufactured by various firms and companies including M/s. Unique Farmaid Private Limited, New Delhi. Therefore, the petitioner is entitled to the protection of the provisions contained in Section 30 (3) of the Act, provided he fulfills conditions laid down in clause (a), (b) and (c) thereof. Admittedly, the petitioner purchased the insecticide in question from the Licensed manufacturer i.e. M/s. Unique Farmaid Private Limited. He was selling the said insecticide in the same condition in which he was receiving it from the manufacturer. There is no allegation that he was selling the same in loose quantity and was not properly storing the insecticide in the same condition in which he acquired it from the manufacturer. There is again no allegation in the complaint that the petitioner was having any knowledge that the insecticide which he was selling was misbranded or he could have the knowledge by exercising due diligence that the insecticides was in any way misbranded. When there is no averment to the aforesaid effect in the complaint, then such complaints are liable to be quashed. This Court has gone through the various judgments, cited by learned counsel for the petitioner in support of his contentions. All the aforesaid judgments squarely cover the case of the petitioner. In Safex Chemicals India Limited v. State of Haryana. (supra), this Court has quashed complaint against the main dealer, who sold the misbranded pesticide to the sub dealer, from whom the sample was taken, on the ground that there was no averment in the complaint that the misbranded pesticide was not properly stored. It was held by this Court that when the insecticides was acquired from the licensed manufacturer in a sealed container by the main dealer and the same was properly stored and kept in the same condition, in which it was acquired, it will not be open for the State to file a complaint against such persons. Filing of such complaint would be an abuse of the process of the Court. Filing of such complaint would be an abuse of the process of the Court. This Court has consistently taken the view that when the complaint is lacking in definite averments regarding improper storing of the insecticide, selling of the insecticide in loose condition and the knowledge regarding selling of the misbranded insecticide and further when from the complaint it is clear that the sample was taken in sealed packed containers, then certainly the seller of the insecticides is entitled for the protection provided under Section 30 (3) of the Act and in such circumstances, the complaint is liable to be quashed and continuation of such complaint is nothing but an abuse of process of law. 9. In view of above, the petition is allowed. Consequently, the complaint (Annexure P-2), pending in the Court of Sub Divisional Judicial Magistrate, Abohar and the proceedings taken thereon are quashed qua the petitioner. However, it is made clear that the quashing of the complaint against the present petitioner shall have no effect upon continuation of the proceedings against the remaining accused.