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2014 DIGILAW 1126 (PNJ)

K. C. S. BHATTI v. STATE OF HARYANA

2014-07-31

DAYA CHAUDHARY

body2014
JUDGMENT : Daya Chaudhary, J. The present petition has been filed under Section 482 Cr.P.C. for quashing of impugned complaint No. 2245 dated 8.8.2008 under Sections 17(1)(A), 18 and section 29(1)(A) of the Insecticides Act, 1968 read with Insecticide Rules, 1971 as well as summoning order dated 8.8.2008. Briefly, the facts of the case, as mentioned in the present petition, are that a sample was drawn by a Quality Control Inspector-cum-Insecticide Inspector, Panipat of insecticide, namely, Cartap Hydrochloride 4% G bearing batch No. 13 from one dealer i.e. M/s. National Seed House, 78, New Sabji Mandi, Panipat. The said insecticide material A was manufactured and supplied by the company i.e. M/s. Nicel Laboratories Pvt. Ltd., New Delhi. Three sample were drawn and out of that one part of sample was sent to State Quality Control Lab., Karnal for analysis which was found to be misbranded. Thereafter, the referral part of the sample was found to be misbranded after analysis by Central Insecticide Lab., Faridabad. A show cause notice was issued to the company to which a reply was submitted. Thereafter, the complaint was filed before CJM, Panipat and summoning order dated 8.8.2008 was passed. Both the complaint as well as summoning order are subject matter of challenge in the present petition. 2. Learned counsel for the petitioner submits that the provisions of section 33 of the Insecticide Act have not been complied with and the present petitioner cannot be held liable as the offence has not been committed by him as neither he was in-charge of the company nor was responsible for the day to day activities of business of the company. Learned counsel also submits that neither there are specific averments in the complaint nor it has been mentioned that the petitioner was in-charge and responsible for conduct of business at the relevant period or the alleged offence was committed with his consent and connivance. Learned counsel has relied upon the judgment of Apex Court in State of NCT of Delhi through Prosecuting Officer, Insecticides, Government of NCT, Delhi Vs. Rajiv Khurana, (2010) 11 SCC 469 , as well as judgment of this Court in S.K. Jindal Vs. State of Haryana, (2005) 4 RCR(Criminal) 68 in support of his contentions. 3. Learned counsel has relied upon the judgment of Apex Court in State of NCT of Delhi through Prosecuting Officer, Insecticides, Government of NCT, Delhi Vs. Rajiv Khurana, (2010) 11 SCC 469 , as well as judgment of this Court in S.K. Jindal Vs. State of Haryana, (2005) 4 RCR(Criminal) 68 in support of his contentions. 3. Learned counsel for the respondent-State submits that the requirements of Section 33 have been complied with and the complaint and summoning order cannot be quashed only on this ground. 4. Heard, learned counsel for the parties and have also perused the complaint, summoning order as well as other documents on the file. 5. Section 33 of the Act, which is relevant for the decision on the controversy at hand, is reproduced as under: "33. Offences by companies. (1) Whenever an offence under this Act has been committed by a company, a person who at the time the offence was committed, was in charge of, or was responsibly 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 proved 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 of 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 office 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." 6. 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." 6. On perusal of Section 33 of the Act, it is clear that in case of violation by the Company/firm under Insecticide Act, the provisions of Section 33 of the Act are required to be complied with. As per provisions of Section 33 of the Act, in case any offence has been committed by the company, every person who was incharge or was responsible for the conduct of the business in company shall be deemed to be guilty of the offence and he shall be liable to be proceeded against and punished accordingly. Sub-section (2) makes it clear that when it is proved that the offence has been committed with the consent and connivance of the Director, Manager, Secretary or other officer of the company, he shall be liable to be proceeded against and punished accordingly. For commission of said offence, there is to be specific averments in the complaint by the complainant that such person against whom the complaint was filed was the incharge and was responsible for the conduct of the company at a particular time and alleged offence has been committed with his consent and connivance. Section 305 of Cr.P.C. is also relevant in the circumstances of the case which is reproduced as under: "305. Procedure when corporation or registered society is an accused. (1) In this section, "corporation" means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860). (2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation. (2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation. (3) Where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall be examined. (4) Where a representative of a corporation does not appear, any such requirement as is referred to in sub-section (3) shall not apply. (5) Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appointed. (6) If a question arises as to whether any person, appearing as the representative of a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the Court. 7. From perusal of section 305 Cr.P.C., it is clear that whenever any offence is committed by the company and the company is prosecuted, then it is for the company to decide that by whom the company is to be represented during trial. The company cannot be compelled to be represented by a particular or a specific officer. Nowhere in the complaint, it is mentioned that the petitioner was incharge and was responsible for the day to day conduct of business of the company at the relevant period or the alleged contravention took place in the company with its consent or connivance. This onus lies upon the prosecution to prove and only then a person can be prosecuted. Nowhere in the complaint, it is mentioned that the petitioner was incharge and was responsible for the day to day conduct of business of the company at the relevant period or the alleged contravention took place in the company with its consent or connivance. This onus lies upon the prosecution to prove and only then a person can be prosecuted. These requirements have not been fulfilled while filing this complaint as neither requirement of section 33 of the Act has been complied with nor specific averments have been made. The controversy in the present case is squarely covered by the judgment of case in P.D. Garg Vs. State of Punjab, (2014) 4 Crimes 478. The relevant part of the judgment is reproduced as under: "The sole issue arising in the present case is no longer res integra. The Hon'ble Supreme Court in State of NCT of Delhi through Prosecuting Officer, Insecticides, Government of NCT, Delhi Vs. Rajiv Khurana, has considered the scope of Section 33 of the Act and having referred to previous decisions in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, (1983) 1 SCC 1 , State of Haryana Vs. Brij Lal Mittal and Others, AIR 1998 SC 2327 , K.P.G. Nair Vs. Jindal Menthol India Ltd., (2001) 10 SCC 218 , Smt. Katta Sujatha Vs. Fertilizers and Chem. Travancore Ltd. and Another, (2002) 7 SCC 655 , Sabitha Ramamurthy and Another Vs. R.B.S. Channabasavaradhya, AIR 2006 SC 3086 and K.K. Ahuja Vs. V.K. Vora and Another, (2009) 10 SCC 48 held as follows:- "The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of company's business. Every Director need not be and is not in charge of the business of the company. If that is the position with regard to a Director, it is needless to emphasis that in the case of non-Director officers, there is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable." 8. If that is the position with regard to a Director, it is needless to emphasis that in the case of non-Director officers, there is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable." 8. In view of the facts as mentioned above and law position explained as discussed in the above said paras, I am of the considered opinion that mandatory provisions of section 33 of the Act have not been complied with as the complaint does not contain any specific averments with regard to role of the present petitioner. Moreover, in absence of impleading company as party, the proceedings cannot be initiated against this petitioner. This view has been taken by the Apex Court in Monaben Ketanbhai Shah and Another Vs. State of Gujarat and Others (2004) 7 SCC 15, which is reproduced as under: "The primary responsibility is on the complainant to make necessary averments in the complaint so to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint." Accordingly, there is merit in the contentions, raised by learned counsel for the petitioner and the present petition is allowed. Complaint No. 2245 dated 8.8.2008 under Sections 17(1)(A), 18 and section 29(1)(A) of the Insecticides Act, 1968 read with Insecticide Rules, 1971 as well as summoning order dated 8.8.2008 are quashed.