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2010 DIGILAW 1139 (PAT)

GODREJ SARA LEE LTD v. STATE OF BIHAR

2010-05-05

AJAY KUMAR TRIPATHI

body2010
ORDER : 1. Petitioners’ company is an authorized C & F of various companies and it has requisite licence to deal with the products of those companies. Some of those products also require licence under the Insecticide Act because these products though are household items but technically covered under the Act. One such product is mosquito repellant, known as Good-night etc.. The chemical composition is stated to be what is know as Trasfluthrin to the extent of 0.88%. 2. An inspection was carried out in the go-down of the petitioner. Based on the inspection report, petitioners were issued a show-cause on 19.12.2007. Petitioners responded to the said show-cause and had given explanation on all counts as would be evident from Annexure-8 to the writ application. 3. Explanation furnished by petitioners ought to have satisfied the respondent-authorities but they were surprised when they received a notice contained in Annexure-10 to the writ application dated 6th September, 2008, coupled with the decision dated Ist September, 2008 which is Annexure-11 to the writ application. The licence of the petitioners stands cancelled for an alleged breach on three counts: (i) Petitioners were selling insecticide without obtaining licence in this regard, (ii) that the food items along with the said insecticide were stored in the same go-down, (iii) And that the explanation offered by the petitioners was received after four months instead of 7 days. 4. Learned counsel representing the petitioners submits that there is evidence to show that the petitioners had made an application for inclusion of the so-called insecticide before the competent authority by an application dated 03.01.2008. Requisite licence fee was also deposited by way of challan dated 03.01.2008, which stands corroborated vide Annexure-7 to the writ application. This was done as a new product was launched by the company and supplied but no sale was effected by the petitioners. There is no evidence on record to show that the petitioners had actually indulged in trade without the licence being issued to them. There are occasions when new brands or products are launched and brought into the market but the formality of their inclusion in licence take time due to bureaucratic red-tapism. 5. With regard to second allegation counsel for the petitioners states that so called insecticide is a mosquito repellant which was stored in the particular godown separate from food items as it is a 10,000 sq. feet godown. 5. With regard to second allegation counsel for the petitioners states that so called insecticide is a mosquito repellant which was stored in the particular godown separate from food items as it is a 10,000 sq. feet godown. The mosquito repellant is a daily household item though technically it comes within the ambit of insecticides Act. 6. Third reason for cancellation of licence was non filing of explanation to the show-cause beyond time and delay. Learned counsel for the petitioners submits that they did not have adequate information and did not receive the initial show-cause and when they learnt about initiation of the proceeding, they submitted a detailed explanation in this regard. 7. Stand of the State is that there is breach of the Act which is Insecticide Act, 1968 read with the Rules therein. The petitioners are guilty of the breaches as is established by Annexure-8. 8. Learned counsel for the petitioners has drawn my attention towards the provision of section 21, especially Clause (c) and (d) of the Act. Section 21 (1) (c) and (d) of the said Act read as under:- “ 21 (1) (c)- to make such examination and inquiry as he thinks fit in ORDER :to ascertain whether the provisions of this Act or the rules made thereunder are being complied with and for that purpose stop any vehicle; (d) to stop the distribution, sale or use of an insecticide which he has reason to believe is being distributed, sold or used in contravention of the provisions of this Act or the rules made thereunder, for a specified period not exceeding twenty days, or unless the alleged contravention is such that the defect may be removed by the possessor of the insecticide, seize the stock of such insecticide; 9. Another provision which has been brought to the notice of the Court in this regard is section 22(2) (c) which are reproduced here: 22(2) (c): without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possessor of the insecticide, he shall, on being satisfied that the defect has been so remedied, forthwith revoke his ORDER :and in case where the Insecticide Inspector has seized the stock of insecticide, he shall, as soon as may be, inform a Magistrate and obtain his ORDER :s as to the release thereof. 10. 10. Based on the substantive provisions of the Act and reading of the provisions would show that there is provision for making amends. The allegations made against the petitioners do not constitute substantive offences. It is at best a technical breach which does not warrant a penal or serious action of cancellation of licence. Both omissions, if at all, were rectifiable and petitioners had taken steps for such a rectification. A suspension would have been more than enough in this regard. Punishment, therefore, can be termed to be harsh and excessive in the above stated circumstances. 11. In the opinion of the Court ORDER :s of punishment must be commensurate with the breach. Over exercise of authority for minor breaches or deviation can be termed arbitrary and irrational and in breach of Article 14 of the Constitution of India. The impugned ORDER :s, as contained in Annexure- 10 and 11 stand quashed and the writ application is allowed. The respondent-authorities, in view of the above ORDER :, are directed to take steps for renewal of the licence of the petitioners.