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2002 DIGILAW 890 (PNJ)

Joginder Chawla v. State Of Punjab

2002-09-07

KIRAN ANAND LALL

body2002
Judgment Kiran Anand Lall, J. 1. The petitioner-firm through its proprietor Shri Joginder Chawla has sought quashing of complaint dated 18.12.1997 (Annexure P-2) under Sections 3k(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 (for short "the Act") read with rules 10 and 27(5) of the Insecticides Rules of 1971 (for short "the Rules) pending in the court of Sub-Divisional Judicial Magistrate, Muktsar, and all the consequent proceedings thereof. 2. The facts, as culled out from the complaint (Annexure P-2), are that on 4.7.1996, Teja Singh Sandhu, Insecticide Inspector, inspected the premises of the petitioner-firm which is in the business of selling insecticides. After introducing himself to the person present at the shop, Vijay Kumar, who was brother of the owner of the shop (Joginder Chawla), the Insecticide Inspector disclosed his intention to obtain sample of Monocrotophos 36% SL. He then checked the stock register of the firm and found that there was entry of 549/500 litres of aforesaid insecticide in the packings of five litres, 1 litre, 1/2 litre and 1/4 litre, manufactured by M/s Jaswant Rasayan Private Limited, Hisar, with manufacturing date as June 1996 and expiry date as May, 1997, bearing batch No. 231. The name of Decacrom was printed on the five litre plastic packing of Monocrotphos 36% SL. The Insecticide Inspector opened one sealed packing of five litres and purchased 750 grams of insecticide out of it against a receipt. The insecticide so purchased was put into three neat and clean plastic bottles in equal quantity and all the bottles were sealed separately, after being wrapped in white and dry pieces of cloth. All the relevant documents as required under the Act were also prepared. One sealed bottle along with from No. XX was given to Shri Vijay Kumar and the remaining two bottles were brought by the Inspector to his office. One of the two bottles was sent to the Senior Analyst, Insecticide Testing Laboratory, Bhatinda. As per the report received from the Laboratory, the sample was not found as per ISI specification and was, therefore, described as mis-branded. As per the result of the Analyst, the active ingredients of Monocrotophos were found 24.63% as against 36%. A show cause notice regarding the sample having been found mis-branded was, thereupon, given to the petitioner-dealer. As per the report received from the Laboratory, the sample was not found as per ISI specification and was, therefore, described as mis-branded. As per the result of the Analyst, the active ingredients of Monocrotophos were found 24.63% as against 36%. A show cause notice regarding the sample having been found mis-branded was, thereupon, given to the petitioner-dealer. The latter got the sample re-analysed from the Central Insecticides Laboratory, Faridabad, after obtaining permission of the Sub-Divisional Judicial Magistrate, Muktsar. This Laboratory also found the sample to be misbranded as the active ingredients were 20.4% against 36%. 3. On the filing of complaint (Annexure P-2) in court by the Insecticide Inspector, the petitioner was summoned as accused. 4. This petition has been filed for quashing of the complaint mainly on the ground that the petitioner is dealer only. He is not manufacturer of the insecticides. The sealed container containing insecticide had been purchased from the manufacturer M/s Jaswant Rasayan Private Limited Hisar. Therefore, the petitioners claim is that no prosecution could be launched against him. It was further pleaded that sealed container, containing insecticide remained in the same state in which those were at the time of purchase. As such, protection of Section 30(3) of the Act was claimed. It was also pleaded that sample was not taken in accordance with the procedure prescribed by the ISI and further that sanction obtained from the State Govt. under Section 31 of the Act was not proper. 5. The respondent-State filed written reply, pleading that in order to claim protection under Section 30(3) of the Act, dealer is required to prove that the insecticide was purchased by him against valid bill/warranty and it was kept in the same condition till the sample was taken. The petitioner, according to the respondent, was at liberty to prove these facts in order to get himself absolved from criminal liability. Regarding the sanction for the prosecution of the petitioner, it was stated that the same was proper and so was the procedure of taking sample. 6. During arguments, learned counsel for the petitioner, however, put forward only one ground for the quashing of the complaint viz that the petitioner was dealer only. Regarding the sanction for the prosecution of the petitioner, it was stated that the same was proper and so was the procedure of taking sample. 6. During arguments, learned counsel for the petitioner, however, put forward only one ground for the quashing of the complaint viz that the petitioner was dealer only. He had purchased the insecticide viz Monocrotophos 36% SL from a duly licensed manufacturer named M/s Jaswant Rasayan Private Limited, Hisar, and it (insecticide), while in his possession, was properly stored and remained in the same state in which it was when he purchased it. Therefore, it was argued that the petitioner was not liable for misbranding of the insecticide. Reference was made in this contention to Section 30(3) of the Act. This section provides as under :- "30. Defences which may or may not be allowed in prosecutions under this Act. - (1) x x x xxx x x x x x (2) x x x x x x x x x x x x x x x x x x x x (a) x x x x x x x x x x x x x x x x x x x (b) x x x x x x x x x x x x x x x x x x x x (3) 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 insecticide 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." 7. Referring to the above provision of law, learned counsel for the petitioner contended that sample was taken from sealed packing and there was no averment in the complaint that any sign of tampering was visible on the packings, or, the packings had not been properly stored. Therefore, he contended, the complaint was liable to be quashed as the petitioner was entitled to the protection provided in section 30(3) of the Act. Therefore, he contended, the complaint was liable to be quashed as the petitioner was entitled to the protection provided in section 30(3) of the Act. The stand of the State-respondent, on the other hand, is that undoubtedly, being dealer the petitioner can claim this protection but, as the grounds mentioned in Section 30(3) of the Act are questions of fact, the same have to be proved like any other fact by leading evidence in the trial court. 8. A bare persual of Section 30(3) of the Act shows, legislature has placed the burden of proving all the three grounds stated in Section 30(3) of the Act, on the person from whom sample is taken. And he can do so only by leading evidence in trial court, and not by simply making mention thereof in a petition under Section 482 of the Code of Criminal Procedure for quashing of complaint. 9. Learned Assistant Advocate General, Punjab, appearing on behalf of the State-respondent placed reliance on M/s Hybrid Seeds and Pesticides, Abohar v. State of Punjab, 1997(3) RCR(Criminal) 768, wherein it was held by this Court that "the defences which are taken by the dealer under Section 30(3) of the Insecticides Act are the defences on facts, which can only be proved by leading evidence before the Magistrate and inquiry cannot be embarked upon the High Court while exercising the inherent powers under Section 482, Cr.P.C.". A similar view was taken by this Court in still another authority reported as M/s Dhaliwal Agro Centre, Sahnewal v. State of Punjab, 2002(1) RCR(Crl.) 716 : 2002(2) All India Criminal Law Reporter 458, while dealing with a petition filed under Section 482 of the Code, for quashing complaint under Sections 3k(i), 13, 17, 18, 23, 29 and 33 of the Act, 1968. 10. It was further argued by the learned counsel for the petitioner that in the complaint there is no allegation at all made by the complainant that the accused knew that the contents of the sample were misbranded, or that the sealed packings were not stored at a proper place. Therefore, according to him, it should be presumed, that (i) the accused did not have knowledge that the insecticide was misbranded and (ii) that the packings had been stored at a proper place. Well, in my view, negative allegations are not supposed to be incorporated in the complaint. Therefore, according to him, it should be presumed, that (i) the accused did not have knowledge that the insecticide was misbranded and (ii) that the packings had been stored at a proper place. Well, in my view, negative allegations are not supposed to be incorporated in the complaint. It is the petitioner who wants to avail the defence under section 30(3) of the Act and he can do so only by leading evidence in the trial Court, and not in any other manner. This Court had taken this view in the above referred to judgment 1997(3) RCR (Criminal) 768 also. 11. On the other hand, learned counsel for the petitioner referred to M/s Kishan Beej Bhandar v. Chief Agricultural Officer and another, 1(1992) C.C.R. 768 (SC), wherein the Apex Court, while dealing with a complaint under Sections 3k(i), 13, 17, 18, 23, 29 and 33 of the act, held that "we are inclined to accept the submission and take the view that whether it is prosecution or contravention leading to cancellation, sub-section (3) applies. In this view of the matter on the facts found that it was full tin in a sealed condition, the liability arising out of misbranding was not of the appellant. Unless he had any other source of information about misbranding and it has not been established the appellant is entitled to the protection of sub-section (3). In the facts once the appellants contention that it was sealed tin intact has been found, the burden that lay on him under the provision of sub- section (3) had been satisfactorily discharged, even in the matter concerning the question of cancellation of licence and, therefore, his licence should not have been cancelled." 12. After having carefully gone through the above mentioned authorities, I find that the judgments relied upon on behalf of the State-respondent clearly support the contention of the learned Assistant Advocate General. And, as per what was held in these judgments, the three grounds mentioned in Section 30(3) of the Act are questions of fact and a person who wants to avail protection under this Section, has to prove the same by leading evidence before the trial court. He cannot get the complaint quashed simply by pleading the existence of the three facts enumerated in Section 30(3) of the Act, in a petition under Section 482 of the Code. He cannot get the complaint quashed simply by pleading the existence of the three facts enumerated in Section 30(3) of the Act, in a petition under Section 482 of the Code. The judgment relied upon by the learned counsel for the petitioner 1(1992) C.C.R. 768 (S.C.) also does not say that dealer can get protection under Section 30(3) of the Act even without proving the grounds mentioned in this Section. 13. The position which, therefore, emerges is that the petitioner from whom sample was taken can surely avail protection provided under Section 30(3) of the Act if he proves the facts mentioned therein by leading evidence in trial court. But, he cannot get the complaint quashed simply by mentioning in the petition in hand that the grounds enumerated in section 30(3) of the Act, in fact, did exist. In this connection, it has to be kept in mind that the State-respondent has not only categorically denied the existence of these grounds in para No. 5 of their written reply but has also specifically mentioned therein that the petitioner is "required to prove that the insecticide in question was purchased by him against valid bill/warranty and that it was kept in the same condition till the same was taken." In the light of what has been discussed above, it is held that there is no merit in the petition. The same shall, therefore, stand dismissed. The petitioner through his counsel is directed to appear before the learned trial magistrate on October 07, 2002.