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2005 DIGILAW 393 (PNJ)

Shashank Bhargava v. State Of Punjab

2005-03-16

SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. This order shall dispose of Criminal Misc. Petitions bearing Crl. Misc. No. 38378-M of 2001 and Crl. Misc. No. 38381-M of 2001, which have been filed by the same petitioners for quashing of two different complaints filed against them under Sections 3K(1), 17, 18, 29 & 33 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticide Rules, 1971 by the Insecticide Inspector (respondent No. 2 herein) pertaining to two different samples taken. 2. In both these petitions, common question of law is involved. For the purpose of convenience, the facts are being taken from Crl. Misc. No. 38378-M of 2001. 3. Petitioner Nos. 1 and 2 were the Managing Director and Chemist, respectively, of the manufacturing company M/s. Unikill Pesticides Private Limited, Vidisha (Madhya Pradesh). On 4.9.1997, the Insecticide Inspector, Bathinda took a sample of Ethion 50% E.C. from the business premises of M/s. Goyal Sales Corporation, who was a dealer of the manufacturing company M/s. Unikill Pesticides Private Limited. The said sample was sent for analysis to the Senior Analyst, Insecticide Testing Laboratory, Bathinda on 5.9.1997 which was found to be misbranded vide report dated 22.9.1997 as the same was not in conformity with the I.S.I. specification since the sample contained only 43.45% active ingredients E.C. instead of 50% E.C. 4. For launching prosecution for the above offence against the dealer as well as the manufacturing company, under the Insecticides Act, 1968 (hereinafter referred to as `the Insecticides Act), the Insecticides Inspector sought sanction from the concerned authority. The Joint Director, Agriculture, which was the competent authority to grant sanction under the Act granted sanction for prosecuting the dealer as well as the manufacturing company vide sanctioned letter dated 7.6.1998 (Annexure P-1). By this letter sanction was granted to prosecute the dealer i.e. M/s. Goyal Sales Corporation, Bathinda and the manufacturing company i.e. M/s. Unikill Pesticides Private Limited through its responsible persons Shri Shashank Bhargava, Managing Director (petitioner No. 1) and Shri Parkash Dange, Chemist (petitioner No. 2). Subsequently, a complaint was filed by the Insecticide Inspector on 21.9.1998, copy of which has been annexed as Annexure P-2. In the complaint, M/s. Goyal Sales Corporation has been arrayed as accused No. 1 and M/s. Unikill Pesticide Private Limited through its responsible persons Shri Shashank Bhargava (Managing Director) and Shri Parkash Dange (Chemist) have been arrayed as accused No. 2. In the complaint, M/s. Goyal Sales Corporation has been arrayed as accused No. 1 and M/s. Unikill Pesticide Private Limited through its responsible persons Shri Shashank Bhargava (Managing Director) and Shri Parkash Dange (Chemist) have been arrayed as accused No. 2. In the said complaint, both the petitioners have been summoned. 5. The petitioners have filed the instant petition for quashing of the afore- said complaint. It has been submitted that from the perusal of the sanction letter (Annexure P-1) as well as the complaint (Annexure P-2), it is abundantly clear that there are no allegations against the petitioners that they were incharge of and were responsible to the company for the conduct of its business or its manufacturing unit. In the sanctioned letter, the competent authority has granted sanction to prosecute the manufacturing company through its responsible persons named therein i.e. the petitioners. In the complaint also, the manufacturing company has been impleaded as an accused through its responsible persons i.e. the petitioners. These persons, through whom the company was prosecuted in the criminal complaint as responsible persons have not been prosecuted by the State Government in their individual capacity but only they are to represent the company who is to be prosecuted. In the sanctioned letter, the sanctioning authority has also mentioned that it was satisfied that the manufacturing company had committed an offence and, therefore, the sanction was being granted for its prosecution but there is absolutely nothing on record to show that the sanctioning authority had also granted sanction under Section 31(1) of the Act for prosecution of the petitioners in their individual capacity. In such a situation, where no sanction for prosecution of the responsible persons has been granted in their individual capacity, they cannot be prosecuted as no sanction was granted for their prosecution. Even though the prosecution was being launched by filing a criminal complaint against the offending company through its responsible persons referred therein, in such a situation, those persons cannot be prosecuted in their personal or individual capacity. In support of his contention, counsel for the petitioners has relied upon the decisions of this Court in Manjit Singh Guliani v. State of Punjab, 2002(2) RCR(Criminal) 50; Hindustan Pulverising Mills v. State of Punjab, 2002(1) RCR(Criminal) 512; Mukhtiar Singh and others v. State of Punjab, 2002(3) RCR(Criminal) 737; Amarjit Singh v. State of Punjab, 1997(2) RCR 420 and Sh. In support of his contention, counsel for the petitioners has relied upon the decisions of this Court in Manjit Singh Guliani v. State of Punjab, 2002(2) RCR(Criminal) 50; Hindustan Pulverising Mills v. State of Punjab, 2002(1) RCR(Criminal) 512; Mukhtiar Singh and others v. State of Punjab, 2002(3) RCR(Criminal) 737; Amarjit Singh v. State of Punjab, 1997(2) RCR 420 and Sh. Shashank Bhargava, Managing Director and another v. The State of Punjab and another, Criminal Misc. No. 41276-M of 1999, decided on 11.2.2000. 6. I have heard the arguments of the learned counsel for the parties and gone through the contents of the petitions. 7. In Manjit Singh Gulianis case (supra), it has been observed as under :- "... it would be clear that the sanctioning authority, while granting consent/sanction, was satisfied that the various firms/companies, referred to above, had committed various offences and accordingly, the sanctioning authority had granted consent/sanction for the prosecution of those firms/companies through their responsible persons named therein. Even the complaint, which was filed by the State of Punjab through Insecticide Inspector, was also filed against the aforesaid firms/companies through their responsible persons named therein. Those persons, through whom the various firms/companies were prosecuted in the criminal complaint as responsible persons of those firms/companies, had not been prosecuted by the State of Punjab in their individual capacity but only they were to represent the firms/companies, who were prosecuted by the State of Punjab through the Insecticide Inspector and for the prosecution of those firms/companies the sanctioning authority had granted necessary permission/sanction. As referred to above, in the consent/sanction order, it is specifically mentioned by the sanctioning authority that he was satisfied that those firms/companies had committed the various offences and that consent was being granted for the prosecution of those companies through their responsible persons. There is absolutely nothing on record to show that the sanctioning authority had also granted consent/sanction under Section 31(1) of the Act for the prosecution of those persons (alleged to be responsible persons) in their individual capacity. Once it is found that the sanction was granted only for the prosecution of firms/companies and they were to be prosecuted through their responsible persons and even the prosecution was also launched by filing the criminal complaint against the firms/companies through their responsible persons, referred therein, it would be clear that those persons could not be prosecuted in their personal capacity. Thus, persons through whom the firms/companies were prosecuted, could not be termed as accused in their personal capacity. They are before the Court only to represent the firms/companies, which have been prosecuted by the State of Punjab through Insecticide Inspector. This is especially so, when the learned counsel appearing for the State, on the basis of record, had failed to show that these persons through whom the various firms/companies have been prosecuted, were never made accused in the criminal complaint and/or necessary consent/sanction had been granted by the sanctioning authority to prosecute them in their personal capacity." 8. In Hindustan Pulverising Mills case (supra), it was held that when sanction for prosecution of the Managing Director of the firm had not been validly granted as it had been given mechanically and without application of mind, and the complaint was filed on the basis of the said sanction against the offending company through its Managing Director without arraying him as an accused in the individual capacity, such complaint is liable to be quashed. 9. In Mukhtiar Singhs case (supra), again it was held by this Court that the specific sanction should have been granted against the persons to whom the State wants to prosecute for the alleged offence. The criminal liability has to fall upon the shoulders of the partners, against whom specific sanction was given by the competent authority. The sanction should be given against every individual and not against a firm of the company. 10. Similarly, in Amarjit Singhs case (supra), it has been held as under :- "As regards the permission to prosecute contemplated under Section 31 of the Insecticides Act is concerned, reference has already been made to Section 31 of the Act. Under Section 33 of the Insecticides Act, when an offence is committed by a 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, the company shall be liable to be proceeded. It is crystal clear from perusal of sub-section (1) of Section 33 that merely being an employee does not make the person liable to be prosecuted. He is to be incharge of or responsible to the company for the conduct of the business of the company. While granting sanction to prosecute, the fact had to be brought to the notice of the authority. He is to be incharge of or responsible to the company for the conduct of the business of the company. While granting sanction to prosecute, the fact had to be brought to the notice of the authority. He may grant permission to prosecute that person or not. Therefore, permission has to be obtained separately against that person. If there is no permission that has been obtained against the individual employee or the partner as the case would be, then he cannot be prosecuted." 11. On similar grounds, the complaint was quashed against petitioner No. 1 in Crl. Misc. No. 41276-M of 1999. 12. In this case, the relevant facts mentioned above have not been disputed by the counsel for the respondents. The sanction was granted to prosecute the company through its responsible persons i.e. the petitioners. The complaint has also been filed by impleading the manufacturing company as an accused through the petitioners. No individual sanction to prosecute the petitioners has been granted by the competent authority after coming to the conclusion that they were the persons responsible to the company for the conduct of its business. In the complaint, the petitioners have not been impleaded as accused in their individual capacity. Only the company has been impleaded as an accused through them. There is no averment that the petitioners in their individual capacity were the persons responsible for the conduct of the business of the manufacturing company. In view of these admitted facts, in my opinion, the case of the petitioners is squarely covered by the aforesaid decisions rendered by this Court in which on similar facts the complaints were quashed. 13. Counsel for the respondents could not cite any contrary judgment. However, he relied upon a decision of this Court in Ravi Parkash v. State of Punjab, 1991(2) RCR(Criminal) 651 wherein it has been held that the Chairman-cum- Managing Director of the manufacturing company can be prosecuted for the offence committed by the company under the Act, though no averment was made in the complaint that he was responsible for the conduct of the business of the company. Secondly, he relied upon a decision of this Court in Ajay Handa v. State of Punjab, 1995(2) RCR(Crl.) 739 (P&H) : 1995(3) C.C. Cases 135 wherein it has been held that a complaint filed under the Act cannot be quashed merely for non-mentioning of each and every detail in the sanction order. These two judgments cited by the counsel for the respondents, in my opinion, are not applicable in the facts and circumstances of the instant case as they are not on the point raised by the petitioners in this case. 14. In view of the aforesaid, both the petitions are allowed and the complaint (Annexure P-2) and the consequent proceedings arising therefrom are hereby quashed without prejudice to the rights of the appropriate authority to sanction prosecution of the persons independently, if so warranted by law.