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2002 DIGILAW 937 (PNJ)

Sherpuria Sales Corporation v. State Of Punjab

2002-09-18

M.L.SINGHAL

body2002
Judgment M.L.Singhal, J. 1. M/s. Sherpuria Sales Corporation, Railway Road, Rampura is dealer in the sale of insecticides manufactured by M/s. Sulphur Mills Limited, Bombay. M/s. Sherpuria Sales Corporation, Bathinda is its distributor. On 20.7.1998, Shri Hardev Singh, Insecticide Inspector, Rampura inspected the sale point of M/s. Sherpuria Sales Corporation, Rampura Phul with a view to seize the sample of Endosulphan 35% EC for its analysis by the Insecticides Testing Laboratory, Amritsar. At that time, Shri Jarnail Singh Dhaliwal, Soil Testing Officer was with him. At the time of inspection, at the sale point, Shri Arun Kumar, proprietor of M/s. Sherpuria Sales Corporation, Rampura Phul was found present. 19 litre Endosulphan 35% EC in one litre pack each was found lying displayed for sale to the public in the shop. Out of these 19 litre packs Shri Hardev Singh selected one pack of one litre, bearing batch No. 8D-227, date of manufacturing April, 1998 and expiry date March, 2000 manufactured by M/s. Sulphur Mills Limited, Mumbai. He purchased 750 ml. of Endosulphan 35% EC vide bill No. 003030 dated 20.7.1998 on payment of necessary price to Shri Arun Kumar. He divided 750 ml. of Endosulphan 35% EC into three equal parts and put each of the part in separate, clean and dry containers. Thereafter, they were wrapped in polythene bags and were then put in three separate clean and dry cloth bags alongwith form No. XXI. These three sample packets were sealed with the seal No. 11/9/BTI of Insecticide Inspector. One sealed sample containing form No. XXI was handed over to Shri Arun Kumar, proprietor of M/s. Sherpuria Sales Corporation, Railway Road, Rampura Phul. Two remaining sealed samples were deposited by Hardev Singh Insecticide Inspector in the office of Chief Agricultural Officer, Bathinda alongwith form No. XXI intact. The Chief Agricultural Officer, Bathinda sent one sealed sample intact alongwith form No. XXI to Senior Insecticides Testing Laboratory, Amritsar vide his office letter No. Enf. 137 dated 24.7.1998 through Shri Gurnam Singh Beldar in the office of Chief Agricultural Officer, Bathinda. Testing report received from Senior Analyst Insecticides Testing Laboratory, Amritsar showed that the sample was misbranded not conforming to IS specifications in the active ingredient contents. The active ingredients contents were found to be only 30.67% instead of 36% EC. 137 dated 24.7.1998 through Shri Gurnam Singh Beldar in the office of Chief Agricultural Officer, Bathinda. Testing report received from Senior Analyst Insecticides Testing Laboratory, Amritsar showed that the sample was misbranded not conforming to IS specifications in the active ingredient contents. The active ingredients contents were found to be only 30.67% instead of 36% EC. After the receipt of analysis report, copy whereof was sent to Arun Kumar as well as to the manufacturer and to the distributor as the sample of Endosulphan 35% EC was found misbranded not conforming to IS specifications in the active ingredients contents by the Insecticides Testing Laboratory, Amritsar. Shri Hardev Singh, Insecticide Inspector, Rampura filed complaint under Sections 3k(i), 17, 18, 29 and 33 of Insecticides Act, 1968 read with Rule 27(5) of the Insecticide Rules, 1971. 2. Through this criminal miscellaneous filed under Section 482 Cr.P.C. dealer M/s. Sherpuria Sales Corporation through its proprietor Arun Kumar has prayed for the quashing of complaint Annexure P.1 and all others consequential proceedings taken in the complaint. It is stated that no case was made out against the "dealer" as the dealer was dealing in the sale of Endosulphan 35% EC as manufactured by this manufacturer in the same condition in which it had been received by M/s. Sherpuria Sales Corporation from its manufacturer. It is stated that at the time when the sample was taken by Insecticide Inspector, the Endosulphan 35% EC was in sealed packet. It is stated that dealer is entitled to the protection given in Section 30(3) of the Insecticides Act, 1968 . 3. Learned AAG for the State of Punjab on the other hand submits that it is for the dealer to prove that he was entitled to the protection of Section 30(3) of the Insecticides Act, 1968 . It is stated that dealer is entitled to the protection given in Section 30(3) of the Insecticides Act, 1968 . 3. Learned AAG for the State of Punjab on the other hand submits that it is for the dealer to prove that he was entitled to the protection of Section 30(3) of the Insecticides Act, 1968 . Section 30(3) of the Insecticides Act, 1968 reads as under :- "(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 and when he acquired it." 4. In my opinion, the dealer is entitled to the protection of Section 30(3) of the Insecticides Act, 1968 when the sample was taken, it was in sealed one litre packet as is clear from para No. 4 of the complaint (Annexure P.1). In D.S. Bhullar v. State of Punjab, 2002(3) Recent Criminal Reports 118, it was held that where a dealer is found selling the insecticide in sealed containers in the same condition in which they had received from the manufacturer he is not liable if his sample is found to be misbranded on analysis by the Insecticides Testing Laboratory. It is submitted by the learned Counsel for the petitioner if there is any misbranding of the insecticides that might have taken place at the level of the manufacturer. No misbranding of the insecticides could take place at the level of the dealer when the dealer was selling it in the same condition in which it had been received from the manufacturer. Dealer was selling the insecticide in sealed containers. Similar view was taken in M/s. Jandu Mal Desh Raj v. State of Haryana, 1996(3) Recent Criminal Reports 736, by this Court. 5. Dealer was selling the insecticide in sealed containers. Similar view was taken in M/s. Jandu Mal Desh Raj v. State of Haryana, 1996(3) Recent Criminal Reports 736, by this Court. 5. In view of the reasons given above, I am of the opinion that dealer (M/s. Sherpuria Sales Corporation) was not answerable if the insecticide kept by it for sale was found misbranded on analysis by the Insecticides Testing Laboratory. 6. In view of the provisions of Section 30(3) of the Insecticides Act, 1968 complaint Annexure P.1 is quashed and also all other consequential proceedings taken in the case by the Magistrate. This criminal miscellaneous petition is accordingly allowed.