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2005 DIGILAW 683 (PNJ)

Surinder Kumar Jain v. State Of Haryana

2005-07-01

SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. Petitioner Surinder Kumar Jain, Managing Director, M/s. National Pesticides Chemicals, Saharanpur (U.P.) has filed this petition under Section 482 of the Code of Criminal Procedure for quashing the complaint filed under Section 3(k)(l) read with Section 29(1)(a)(i) of the Insecticides Act, 1968 (hereinafter referred to as `the Act), and the subsequent proceedings arising therefrom. 2. It had been stated in this petition that M/s. National Pesticides Chemicals, Sharanpur (U.P.) is a manufacturing company of various types of insecticides. The petitioner is its Managing Director. As per the allegations made in the complaint, on 8.1.1997, the Insecticides Inspector visited the premises of M/s. Karan Agriculture Store, Obra and took a sample of BHC 50% W.P. from 500 grams packing bearing batch No. 60, manufacturing date November, 1995 and expiry date October, 1997, by virtue of powers vested under Section 27 of the Act. After analysis, the aforesaid sample was found to be mis- branded as the same did not conform to the ISI specifications. Subsequently, the aforesaid complaint was filed. 3. Though the petitioner is seeking quashing of the complaint on various grounds, but learned counsel for the petitioner press this petition only on the ground that the offending company, who has manufactured the mis-branded insecticide and committed the alleged offence has not been arrayed as an accused, and in the absence of the company, the petitioner, who is employee of the company beings its Managing Director, cannot be prosecuted. In support of his submission, learned counsel for the petitioner relied upon the decisions of this Court in Sham Sunder Bassi v. The State of Punjab, 1991(3) Recent Criminal Reports 199, S.H. Chisty v. State of Haryana, 1997(2) Recent Criminal Reports 565, S.C. Sharma v. State of Haryana, 2003(1) RCC 80 and a decision of this Court dated 28.4.2004, passed in Crl. Misc. No. 5272-M of 1996, titled as M.N. Murli Kumar v. State of Punjab. 4. Counsel for the respondent-State submits that even if the offending company has not been arrayed as an accused in the complaint, the petitioner, who was the Managing Director of the said Company at the relevant time is liable to be convicted for the alleged offence as he was a person responsible for the conduct of the business of the Company. However, he did not cite any contrary judgment in support of his submission. 5. However, he did not cite any contrary judgment in support of his submission. 5. After hearing counsel for the parties and going through the record of the case, I am of the opinion that this petition deserves to be allowed. Undisputedly, the manufacturing company, who is alleged to have committed the offence has not been arrayed as an accused in the complaint filed by the respondent. The petitioner was the Managing Director of said Company. 6. In Sham Sunders case (supra), wherein the substandard fertilizer was sold by Government Limited Company through its Area Manager and the prosecution was launched against the Area Manager without arraying the company as an accused, this Court held as under :- "6 ........A bare glance through these provisions reveals that the company has been made principal accused person and since juristic person i.e. the company acts through its officers/officials, the official directly involved in the manufacture, sale or the distribution, as the case may be, and is answerable to the company, in this regard has also been made liable. Curiously intention of the Legislature in enacting these provisions was to provide deterrent effect to the officials of the company in order to restrain them from indulging in the sale, distribution etc., of sub-standard fertilizer or other goods on one side and to pinpoint the liability of the officials of the company on the other. Thus non-arraigning the company as an accused person is a fatal flaw in the prosecution of the accused-petitioner for the above referred offences, which would vitiate the entire proceedings as held by the Apex Court in The State of Madras v. C.V. Parekh and others, AIR 1971 Supreme Court 447. In para No. 3 of the judgment while dealing with the liability of the employees of a company for violation of the provisions of Section 5 of the Iron and Steel Control Order, 1956, the Apex Court had discussed the import of Section 10 of the Essential Commodities Act, as under : "3. .... It was urged that the two respondents were incharge of and were responsible to, the company for the conduct of the business of the company and, consequently they must be held responsible for the sale and for thus contravening the provisions of clause 5 of the Iron and Steel (Control) Order. .... It was urged that the two respondents were incharge of and were responsible to, the company for the conduct of the business of the company and, consequently they must be held responsible for the sale and for thus contravening the provisions of clause 5 of the Iron and Steel (Control) Order. This argument cannot be accepted, because it ignores the first condition for the applicability of Section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of clause 5 of the Iron and Steel (Control) Order was made by the Company. In fact, the company was not charged with the offences at all. The liability of the persons incharge of the company only arises when the contravention is by the company itself. Since, in this case there is no evidence and no finding that the company contravened clauses 5 of the Iron and Steel (Control) Order, the two respondents could not be held responsible. The actual contravention was by Kamdar and Villabhadas Thacker and any contravention by them would not fasten responsibility on the respondents. The acquittal of the respondents is, therefore, fully justified. The appeal fails and is dismissed. 7. In the present case, in the light of ratio of decision of Apex Court reproduced above, it transpires that the liability of an Area Manager of the company i.e. the petitioner, would arise only if the Punjab Agro Industries Corporation is held to have violated the provisions of the above referred Control Order and liable for the above referred offences. Without arraigning the company as an accused person there would hardly be any scope for the trial Court to hold it so liable. Consequently, this flaw in the prosecution of the petitioner would ultimately prove fatal to the prosecution case even if the entire allegations contained in the complaint are taken to be true." 7. Similarly, in S.H. Chistys case (supra), where sample of fertilizer was found to be misbranded and the manufacturing company was not arrayed as accused, this Court held as under :- "10. Similarly, in S.H. Chistys case (supra), where sample of fertilizer was found to be misbranded and the manufacturing company was not arrayed as accused, this Court held as under :- "10. Learned counsel for the petitioner has invited my attention to the citation reported as 1994(1) RCR 347 G.S. Nagpal v. State of Punjab and one more order dated 5.2.1996 also passed by this Court in Crl. Misc. 21202-M of 1995 Prem Parkash Aggarwal v. State of Punjab. In these two citations the view taken is that without arraying his company as an accused, the office holder of the company whether he is a Managing Director or Incharge of the affairs of the manufacturing unit cannot be held responsible without adding the company as an accused itself. This Court had the occasion to go through all the citations read with all the provisions. The words `as well as company appearing in Clause (1) of Section 10 are not redundant. This Court is not in a position to subscribe to the view taken by his Lordship in 1996(3) RCR 393 mainly on the ground that had this been the intention of the Legislature that every person incharge of the affairs of the unit would be individually liable as an accused without arraying the company as an accused, the words quoted above, `as well as company would not have been superfluous. By deleting above words, the Legislature Court (could ?) very well say that every person who at the time the contravention was committed, was incharge or was responsible to the company for the conduct of the companys affairs shall be deemed to have committed the offence and shall be liable to be prosecuted. The words `as well as company have a lot of significance and it cannot be brushed aside. In Crl. Misc. No. 21202-M of 1995 there is a categorical finding by Justice Malte that the manufacturing concern should also be made a party and the person incharge of the manufacturing process would be liable along with the company manufacturing the pesticides and this is squarely the ratio expressed in Nagpals case. Though Nagpals authority (supra) was before his Lordship Honble Mr. Justice M.L. Singhal when his Lordship was pleased to pass the order in Criminal Misc. No. 5898-M of 1996 but the view expressed by Honble Mr. Justice Malte was perhaps was not placed before his Lordships. Though Nagpals authority (supra) was before his Lordship Honble Mr. Justice M.L. Singhal when his Lordship was pleased to pass the order in Criminal Misc. No. 5898-M of 1996 but the view expressed by Honble Mr. Justice Malte was perhaps was not placed before his Lordships. Be that as it may, the plain reading of Section 10 which is equivalent to Section 33 of the Insecticides Act would show that a person responsible for the manufacturing unit individually cannot be prosecuted without adding the company as an accused which has not been done in the present case is evident from the complaint Annexure P-1. In these circumstances, the prosecution against the petitioner cannot be allowed to go. This Court respectfully differs with the view taken up in 1996(3) RCR(Crl.) 393 (P&H), N. Murlidhar v. State of Punjab." 8. Learned counsel for the respondent-State has neither disputed the factual position of the case nor any contrary judgment has been cited by him. 9. In view of the above discussion, this petition is allowed and the complaint, Annexure P-1, along with all the consequent proceedings arising therefrom are quashed.