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2009 DIGILAW 1649 (PNJ)

Sant Lal Surekha v. State of Punjab

2009-09-17

MAHESH GROVER

body2009
JUDGMENT Mahesh Grover, J.:-This is a petition for quashing of complaint titled ‘State v. Manesh Kumar and others’ and all subsequent proceedings arising therefrom. 2. A complaint under the Insecticides Act, 1968 (hereinafter referred to as ‘the Act’) read with Insecticides Rules, 1971 was filed against the petitioner when on 23.7.1997 an Insecticide Inspector drew a sample of insecticide from the shop premises of one dealer, namely, M/s Goyal Traders, Anaj Mandi, Sahnewal, Distt. Ludhiana. On testing the sample was found to be misbranded. Show cause notice was issued to the dealer as well as the manufacturing company i.e. M/s Thakar Chemicals Ltd., New Delhi by the Chief Agriculture Officer, Ludhiana. No individual notice was served upon the petitioner. Upon the complaint having been presented before the court of competent jurisdiction the petitioner was summoned as an accused vide order dated 21.1.1999. 3. Learned counsel for the petitioner contends that the impugned complaint and the summoning is totally contrary to the provisions of law. He says that he is a Director of the company and no specific and individual sanction for his prosecution was issued by the appropriate authority which is the requirement of law as per Section 31 of the Act. He further contends that there are no averments in the complaint as to whether the petitioner was in charge of the affairs of the company or not and therefore the complaint and the summoning order could not be sustained against him. He has referred to the order of sanction which has been placed on record as Annexure P-3 and the relevant extract of the same reads as under :- “I, Deep Singh Sahota, Joint Director of Agriculture (Plant Protection), Punjab, Chandigarh issue my written consent to Sh.Baljinder Singh, Insecticide Inspector, Sahnewal for launching prosecution under rule 27 (5) of Insecticide Rules, 1971 for further action against the following for alleged contravention, while filing the case in the court :- 1. M/s. Goel Traders, Grain Market, Sahnewal, Distt. Ludhiana through Manesh Kumar Goel (Proprietor). 2. M/s. Thakur Chemicals, 210, Shivlok House-11, Karampura Complex, New Delhi-110015 through its responsible person Sh.Sant Lal s/o Sh.Hazari Lal (Partner).” 4. Reliance was also placed on Shashank Bhargava v. State of Punjab and another 2005(3) RCR (Criminal) 53, Shashank Bhargava and another v. The State of Punjab and another 2000 (2) RCC 454 and S.K.Jindal v. State of Haryana 2005(4) RCR (Criminal) 68. 5. Reliance was also placed on Shashank Bhargava v. State of Punjab and another 2005(3) RCR (Criminal) 53, Shashank Bhargava and another v. The State of Punjab and another 2000 (2) RCC 454 and S.K.Jindal v. State of Haryana 2005(4) RCR (Criminal) 68. 5. On the other hand, learned counsel for the respondent has stated that in the complaint specific averments have been made that the petitioner was responsible for the affairs of the company and in the declaration furnished by the company it has been stated that the petitioner is responsible for the affairs of the company and therefore the petitioner cannot raise this contention to say that he cannot be prosecuted. 6. I have heard the learned counsel for the parties and have perused the impugned complaint as also the summoning order. Section 33 of the Act is reproduced as under :- “Offences by companies.-- (1)Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, or was responsible to the company for the conduct of the business of, the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.--For the purpose of this section, -- (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.” 7. Explanation.--For the purpose of this section, -- (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.” 7. The provisions of Section 33 clearly lay down that every person who at the time the offence was committed was in charge of, or was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. In the explanation furnished ‘company’ has been said any body corporate and includes a firm or other association of individuals and ‘director’ means in relation to a firm, means a partner in the firm. Section 31 of the Act reads as under :- “31. Cognizance and trial of offences. -- (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorised in this behalf by the State Government. (2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.” 8. If the order Annexure P-3 granting sanction is to be seen then it merely shows that sanction was granted to prosecute M/s Thakur Chemicals, New Delhi (Manufacturer) through its responsible person Sh.Sant Lal. It is thus not a cleat cut compliance of Section 31 of the Act. The sanction is obviously for prosecution of the company and not the petitioner. In Shashank Bhargava v. State of Punjab and another 2005(3) RCR (Criminal) 53, this court in similar circumstances has quashed the proceedings by holding that such like sanction is merely for the prosecution of the company and not for the individual. Similarly in Shashank Bhargava and another v. The State of Punjab and another 2000(2) RCC 454 this court held that since there is no sanction to prosecute the petitioner who is an individual, the right of a company to appoint a representative under Section 305(2) Cr.P.C. stood violated. 9. Having regard to the aforesaid settled position of law as propounded in the aforesaid precedents upon which reliance has been placed by the learned counsel for the petitioner, I am of the opinion that the impugned order is unsustainable. 9. Having regard to the aforesaid settled position of law as propounded in the aforesaid precedents upon which reliance has been placed by the learned counsel for the petitioner, I am of the opinion that the impugned order is unsustainable. The complaint and the consequent summoning order deserve to be quashed. Order accordingly. Petition stands allowed. ---------------