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2004 DIGILAW 47 (PNJ)

Shabbir Itarsi v. State Of Haryana

2004-01-14

SATISH KUMAR MITTAL

body2004
Judgment Satish Kumar Mittal, J. 1. In the instant petition filed under Section 482 of the Code of Criminal Procedure for quashing of the complaint filed against the petitioners under Section 29(1) of the Insecticides Act, 1968 (hereinafter referred to as `the Act) and the rules made thereunder for violation of Sections 3(k)(1) and 17(1)(a) & (c) of the Act and the consequent proceedings arising out of the said complaint. 2. Petitioner Nos. 1 and 2 are the Quality Control Officer and Managing Director, respectively, of M/s Pesticides India, Udaipur. The said company has been granted licence for manufacturing of different types of insecticides under the provisions of the Act by the Central Insecticides Board, Government of India, Ministry of Agriculture, New Delhi. On 24.3.1999, the Quality Control Inspector, Sirsa drew a sample of Monocrotophos 36% SL from the premises of M/s. Presicide India, 7, Bansal Colony, Sirsa, dealer for the sale of pesticides manufactured by the petitioners Company. The Regional Pesticides Testing Laboratory, Chandigarh, found the said sample to be misbranded as it did not conform to ISI specification in its active ingredient. Thereupon, on 12.11.1999 the complaint in question (Annexure P-1) was filed by the Quality Control Inspector, Sirsa in the Court of Chief Judicial Magistrate, Sirsa, quashing of which has been sought in the instant petition. It has been contended that in the complaint (Annexure P-1), it has only been averred that the petitioners are responsible persons for maintaining the quality of products. Hence, they have violated Section 17(1)(a) & (c) of the Act, and thus have committed offence under Section 3(k)(1) of the Act. Except that there is no allegation against the petitioners in the complaint (Annexure P-1). It is no where mentioned therein that the petitioners were incharge of and responsible to the company for the conduct of the business of the company at the time when the alleged offence was committed and the sample was taken by the Quality Control Inspector. It has further been submitted that in the complaint (Annexure P-1) even a word has not been mentioned as to in which capacity the petitioners were connected with the manufacture of the insectiside nor it has any where been mentioned that the offence was committed with the consent or connivance or was attributable to any negligence on the part of the petitioners. In view of these averments in the complaint, it has been submitted that the petitioners cannot be prosecuted for the offence committed by the company in view of Section 33 of the Act. 3. Pursuant to the notice issued to the respondent-State, reply was filed in which the aforestated factual position regarding averments in the complaint has not been disputed. However, it has been stated that the complaint was filed in accordance with the provisions of the Act and the rules made thereunder and both the petitioners are fully responsible for the conduct of the business of the offending company. 4. I have heard learned counsel for the parties and have perused the record of the case. 5. Learned counsel for the petitioners submitted that according to Section 33 of the Act, only those persons can be held guilty for the offence under the Act committed by a company, who at the time of commission of such an offence were incharge of and responsible to the company for the conduct of the business of the company as well as the company. In this regard, there must be a clear averment in the complaint that the person, against whom the complaint is filed, was responsible to the company for the conduct of the business of the company at the time when the sample was taken, but in the instant case there is no such averment in the complaint (Annexure P-1) against the petitioners. There is no allegation that the offence was committed with the consent or connivance or is attributable to any neglect on the part of Director, Manager, Secretary or any other officer of the company. Thus, there is nothing on the record to show that any offence has been committed by the petitioners and the complaint (Annexure P-1) is liable to be quashed. In support of his contention, learned counsel for the petitioners has relied upon a decision of the Honble Supreme Court in State of Haryana v. Brij Lal Mittal, 1998(2) Recent Criminal Reports 608 and decisions of this Court in Charda Chemicals Limited v. State of Punjab, 1997(2) RCJ 99; Lal Chand Patni v. State of Haryana, 1998(4) Recent Criminal Reports 546; Murli Manohar v. State of Punjab, 2001(4) Recent Criminal Reports 536; M/s. Hindustan Pulverising Mills v. State of Punjab, 2002(1) Recent Criminal Reports 461; Sh. J.K. Pareek, Commercial Manager, Herbicides (I) Ltd. v. State of Haryana, 2002(1) Recent Criminal Reports 572; Ashok Kumar Chauhan v. State of Punjab, 2002(1) Recent Criminal Reports 523; Dr. Vineet Bhushan v. State of Punjab, 2002(4) Recent Criminal Reports 586 and Deepak Kumar v. State of Haryana, 2002(4) RCR(Crl.) 301 (P&H) : 2003(1) All India Criminal Law Reporter 111. 6. On the other hand, learned counsel for the respondent-State submitted that merely because no clear averment was made in the complaint regarding the petitioners being incharge and responsible for the conduct of the business of the company, the complaint cannot be quashed. 7. The factum of taking of the sample by the Quality Control Inspector on 24.3.1999 from the premises of M/s. Pesticide India, 7, Bansal Colony, Sirsa has not been disputed. It is also not disputed that the insecticides, sample of which was taken, was manufactured by M/s. Presticides India, Udaipur. Petitioners are the Quality Control Officer and the Managing Director of the said company. The only allegations made against the petitioners in paragraph 5 of the complaint (Annexure P-1) are as under : "That M/s. Pesticides India (A Division of PI Industries Ltd. Udaipur) has violated Section 17(1)(a) & (c) of the Insecticides Act, 1958 as they are the manufacturer of Monocrotophos. Respondent Nos. 1 and 2 have also violated Sections 17(1)(a) & (c) as they are responsible persons for maintaining the quality of products as per Director of Agriculture, Haryana letter No. 2825-42 (sic) dated 21.4.1998." 8. This factual position has not been disputed. Now, the question arises is : "Whether on the basis of the aforesaid only averment, the complaint could have been filed against the petitioners, and in such factual position the complaint is liable to be quashed ?" Similar question came up for consideration before this Court in Charda Chemicals Limited v. State of Punjab (supra). In that case, petition for quashing the complaint was filed on the ground that in the complaint no clear averment as to who was responsible to the company for conduct of business was made. In that case, petition for quashing the complaint was filed on the ground that in the complaint no clear averment as to who was responsible to the company for conduct of business was made. While examining the provision of Section 33 of the Act, this Court quashed the complaint and observed as under :- "This provision spells out that when an offence is alleged to have been committed by the company, then every person who at the time the offence was committed, was incharge of or was responsible to the company for the conduct of the business of the company, besides the company shall be deemed to have committed the offence. It is obvious from plain reading of sub-section (1) of Section 33 of the said Act that merely being a responsible person is not enough. He should be responsible to the company for the conduct of the business of the said company. Sub-section (2) of Section 33 further makes it clear that when it is proved that offence was committed with the consent or connivance which can be attributed to any neglect on the part of the director, manager, secretary or other officer of the company, he shall also be liable to be proceeded against and punished." 9. In Murli Manohar v. State of Punjab (supra), complaint filed under Sections 3(k)(i), 9, 17, 18, 21(b), 29 and 33 of the Act filed against the Managing Director of the manufacturing company was quashed while observing as under :- "In the present case, as referred above, the only allegation made by the complainant, in the complaint, was that the offence was committed by the company with the consent, knowledge and connivance of V. Krishna Moorthy, Murli Manohar, Ramesh Peshion and J.K. Gupta, who were responsible for the conduct and business of the company. However, there is no allegation that so far as the present petitioner, Murli Manohar, is concerned he was responsible to the company for its conduct and business. Under these circumstances, in my opinion, the proceedings against the present petitioner, Murli Manohar, would be an abuse of process of the Court and are liable to be quashed." 10. In Sh. However, there is no allegation that so far as the present petitioner, Murli Manohar, is concerned he was responsible to the company for its conduct and business. Under these circumstances, in my opinion, the proceedings against the present petitioner, Murli Manohar, would be an abuse of process of the Court and are liable to be quashed." 10. In Sh. J.K. Pareek, Commercial Manager, Herbicides (I) Ltd. v. State of Haryana (supra), a petition filed by Commercial Manager of the Manufacturing Company for quashing of the complaint was allowed by this Court while observing as under :- "In the present case, as referred to above, except in the title of the complaint that J.K. Pareek petitioner is Commercial Manager of M/s. Herbicides India Limited, not a word has been mentioned as to whether J.K. Pareek petitioner was incharge of or was responsible to the company for the conduct of the business of the company, nor it was mentioned in the complaint that offence was committed with the consent or connivance of or was attributable to any neglect on the part of the petitioner (being Commercial Manager). Under these circumstances, in my opinion, in the absence of any such allegations, present petitioner J.K. Pareek could not be held liable for any of the offences under the Insecticides Act and/or rules framed thereunder on behalf of the firm M/s. Herbicides India Limited. In view of the above, in my opinion, the criminal complaint, summoning order and all subsequent proceedings taken thereon qua petitioner namely J.K. Pareek are liable to be quashed being the abuse of the process of the Court." 11. In Ashok Kumar Chauhan v. State of Punjab (supra), this Court while quashing the complaint filed under the Act observed as under :- "In the present case, as referred in above, not a word has been mentioned in the complaint as to in what capacity the petitioner was connected with the manufacturer M/s. Delta Insecticides Pvt. Ltd. nor it has any where been mentioned as to whether the petitioner was in charge of or was responsible to the said company for the conduct of the business of the company. It has also not been mentioned in the complaint that the offence was committed with the consent or connivance of or was attributable to any neglect on the part of the petitioner. It has also not been mentioned in the complaint that the offence was committed with the consent or connivance of or was attributable to any neglect on the part of the petitioner. Under these circumstances, in my opinion, the petitioner could not be proceeded against for the offence under the aforesaid Act and the Rules framed thereunder." 12. In Dr. Vineet Bhushan v. State of Punjab (supra), the petition for quashing the complaint under the Act, the summoning order and all consequential proceedings arising therefrom was allowed while observing as under :- "A perusal of the sanction granted by the Joint Director and the complaint would show that there is no allegation of any role played by the petitioner. There is no mention as to what role had been played by the petitioner in the production of the insecticide in question. The case of the petitioner is not covered under Section 33 of the Insecticides Act, 1988. It is obvious that according to sub-section (2) of Section 33 of the said Act, when an offence has between (been) allegedly committed by a Company, then every person, who at the time the offence was committed, is responsible shall be deemed to be guilt of the offence, provided that he was in charge of or was responsible to the company for the conduct of the business of the Company as such. In the complaint (Ex. P-1) there is no allegation made that the petitioner was in charge was responsible to the complaint for the conduct of its business. The complaint as well as the sanction are totally blank in this regard. In the absence of any material connecting the petitioner with the provisions of sub- sections (1) and (2) of Section 33 of the Insecticides Act, 1968 , the petitioner cannot be held responsible for the commission of the offence." 13. In view of the aforesaid position of law, I have examined the averments made in the complaint (Annexure P-1). The only averment made against the petitioners is that they are the responsible persons of the company. In my opinion, that averment is not enough to hold them responsible for the offence committed by the company. There must be clear averment in the complaint against the petitioners to the effect that they were responsible to the company for the conduct of the business at the time when the offence was committed. In my opinion, that averment is not enough to hold them responsible for the offence committed by the company. There must be clear averment in the complaint against the petitioners to the effect that they were responsible to the company for the conduct of the business at the time when the offence was committed. According to Section 33 of the Act, only those persons can be prosecuted who at the time of commission of the offence were incharge and were responsible to for the conduct of the business of the company. Sub-section (2) of this Act further makes it clear that when it is proved that offence was committed with the consent or connivance which can be attributed to any neglect on the part of the director, manager, secretary or other officer of the company, he shall also be liable to be proceeded against and punished. But there is no allegation in the complaint that the offence in question was committed with the consent or connivance or is attributed to any neglect on the part of the petitioners. 14. In view of the aforesaid discussion and position of law, this position is allowed. Complaint (Annexure P-1) qua the petitioners and subsequent proceedings are hereby quashed.