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2005 DIGILAW 61 (PNJ)

Sukhdev Kumar v. State Of Punjab

2005-01-13

BALDEV SINGH

body2005
Judgment Baldev Singh, J. 1. This petition has been filed under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing the complaint Annexure P-1 filed under Sections 3(k)(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with Section 27(5) of the Insecticides Rules, 1974, pending in the Court of Judicial Magistrate Ist Class, Jagraon and for quashing of the consequent proceedings arising on the basis of the said complaint. 2. The Insecticides Inspector checked the premises of M/s. Garg Kheti Store, Link Road, Jagraon on 25.1.1992. He took sample of Fenvelrate 20% E.C. manufactured by Ceshav Agri. Chemicals Private Ltd., Faridabad bearing Batch No. CA-17 manufacturing date July, 1991 and expiry date June, 1993, in accordance with the procedures laid down under the Act. The sample on analysis was found mis-branded as it did not conform to IS specification with respect of its active ingredient contents. Active ingredient contents were found 18.4% instead of 20%. Hence, the complaint was filed against the dealer (M/s. Garg Kheti Store, Link Road, Jagraon), distributor (Chemet Chemicals and Materials Pvt. Ltd.) and the manufacturer (Ceshav Agri. Chemicals Pvt. Ltd.). 3. M/s. Garg Kheti Store, Link Road, Jagraon is a partnership firm. Sukhdev Kumar is its partner. Three illegalities have been pointed out by the Ld. Counsel for the petitioner. Firstly that sanction to persecute is invalid as it was given against M/s. Garg Kheti Store, Link Road, Jagraon and not against Sukhdev Kumar, proprietor of this firm. Apart from it, the sanction order has got many infirmities. Sanction was given without application of mind and the details of the Analyst report were not given in it. Secondly, the expiry date of the insecticide of which sample was taken, had already expired and he was deprived of his right to get the sample re-analysed. Thirdly, the sample was taken from original packing, so only the manufacturer was liable and not the dealer. 4. Certain dates are material and are essential to be mentioned here. These are not controverted by Darshan Singh, Insecticide Inspector in his reply. sample of Fenvelrate 20% E.C. was taken from the petitioner firm on 25.1.1992. The manufacturing date was July, 1991 and the expiry date was June, 1993. It was manufactured by Ceshav Agri. Chemicals Pvt. Ltd. having Batch No. CA-17. These are not controverted by Darshan Singh, Insecticide Inspector in his reply. sample of Fenvelrate 20% E.C. was taken from the petitioner firm on 25.1.1992. The manufacturing date was July, 1991 and the expiry date was June, 1993. It was manufactured by Ceshav Agri. Chemicals Pvt. Ltd. having Batch No. CA-17. The complaint was lodged in the Court of Judicial Magistrate Ist Class, Jagraon in May, 1993. The petitioner firm through Sukhdev Kumar, partner received summons from the Court to appear for the first time on 1.12.1993. Then the sample failed as it did not conform to the prescribed standard. Show-cause notice was given to the petitioner firm on 31.3.1992. The petitioner firm gave reply to the notice in April, 1992 that it wanted to get the sample re-analysed. The complainant did not take any action on this reply and filed the complaint in the Court in May, 1993. 5. In the case of Manjit Singh v. State of Punjab, 1994(1) Recent Criminal Reports 650 (P&H), sample of insecticide was found to be mis-branded. Sanction for prosecution was given by the Competent Authority in a cyclostyled form without giving name of the Inspector who took the sample and without giving the date on which the sample was taken and how this sample was found to be mis-branded. Names of manufacturer, dealer and retailer were given, but names of accused persons were not mentioned. It was held that the sanction issued was without application of mind and was not valid. The proceedings were quashed. Again in the case of D.N. Chaturvedi v. State of Punjab, 1994(2) Recent Criminal Reports 133 (P&H) sample of insecticide was found to be mis-branded. Sanction to prosecute was issued by the Competent Authority mentioning the names of dealer firm and manufacturing firm. It did not contain the names of persons belonging to the said concern, who were to be prosecuted. It was held that the prosecution launched against the proprietor of the firm and the Chairman and the other office-bearers of the manufacturing company was against law and the prosecution was quashed. 6. Such infirmities are contained in the sanction order in question, which is Annexure P-3. This is one aspect of the case. 7. In the case of M/s. Shelja Pesticides Centre, Abohar v. State of Punjab, 1998(4) Recent Criminal Reports 533, sample of insecticide was found to be mis-branded by the State Insecticide Laboratory. 6. Such infirmities are contained in the sanction order in question, which is Annexure P-3. This is one aspect of the case. 7. In the case of M/s. Shelja Pesticides Centre, Abohar v. State of Punjab, 1998(4) Recent Criminal Reports 533, sample of insecticide was found to be mis-branded by the State Insecticide Laboratory. Request was made by the accused to the Department to get second sample analysed from Central Insecticide Laboratory, but no action was taken. Challan was presented in the Court when shelf life of the sample had expired. It was held that the accused had lost his opportunity of getting the second sample analysed. The proceedings were quashed. Again in the case of Ashok Kumar Chauhan v. State of Punjab, 2001(2) Recent Criminal Reports 174 (P&H) sample of insecticide was found to be mis-branded. Summoning order was issued by the Magistrate when shelf life of the insecticide had expired. It was held that the accused lost his valuable right under Section 24 of the Insecticides Act, 1968 . The proceedings were quashed. In the case of M/s. Solar Syndicate, Dungri v. State of Punjab, 1994(1) Recent Criminal Reports 140 (P&H) sample of insecticide was found to be mis-branded. The accused got notice of the complaint when shelf life of insecticide had expired. It was held that the accused was denied an opportunity to controvert the correctness of the report of Insecticide Analyst. The proceedings were quashed. 8. In this case, the expiry date of the insecticide in question was June, 1993. The petitioner firm through its partner had received summons from the Magistrate to appear in his Court, for the first time on 1.12.1993. The shelf life of the sample taken had expired by that time and he was deprived of his right to get the sample re-analysed. 9. It is argued by the Ld. counsel for the petitioner that the sample was taken in a packed and sealed condition as supplied by the manufacturer. He, therefore, states that even if the Analyst report is to be accepted on its face value, the petitioner which is a dealer cannot be held liable. In this context, he cited the case of M/s. Mahaluxmi Beej Bhandar v. State of Haryana, 2002(1) All India Criminal Law Reporter 878. 10. He, therefore, states that even if the Analyst report is to be accepted on its face value, the petitioner which is a dealer cannot be held liable. In this context, he cited the case of M/s. Mahaluxmi Beej Bhandar v. State of Haryana, 2002(1) All India Criminal Law Reporter 878. 10. The Deputy Advocate General, Punjab appearing for the respondent-State has not been able to controvert these infirmities by producing any law contrary to the above referred citations. 11. In view of the facts and circumstances of the case, this petition is allowed. The complaint (Annexure P-1) and consequential proceedings are ordered to be quashed.