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2014 DIGILAW 528 (PNJ)

P. D. Garg v. State of Punjab

2014-03-12

TEJINDER SINGH DHINDSA

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Judgment Tejinder Singh Dhindsa, J. (Oral) The instant petition has been filed under Section 482 Cr.P.C. seeking quashing of complaint No. 230/12 dated 17.12.2012 under Sections 3(k) (i), 17, 18, 29 and 33 of the Insecticide Act, 1968 read with Rule 10(4) (ii) and Rule 27(5) of the Insecticide Rules, 1971 at Annexure P1 as also the summoning order dated 17.12.2012 at Annexure P2 passed by the Chief Judicial Magistrate, Tarn Taran. Brief facts that would require notice are that M/s Unique Farm Aid Pvt. Ltd. is a registered manufacturer of various kinds of insecticides and pesticides. On 13.12.2011 Kuljit Singh Insecticide Inspector, Tarn Taran is stated to have visited the premises of one dealer i.e. M/s Gill Kheti Store, Jandiala Road, Tarn Taran and drew a sample of insecticide, namely, Clodinofop Propargyl 15% WP, brand Victory, bearing batch No. 11UF1503, mfg. date December 2011, expiry date November 2013. Such insecticide sample is stated to have been allegedly manufactured by M/s Unique Farm Aid Pvt. Ltd., New Delhi. Thereafter, out of three parts of the representative sample, one part was sent to State Insecticide Testing Laboratory, Ludhiana for analysis and the same was found misbranded after analysis. Upon reanalysis by Central Insecticide Laboratory, Faridabad active ingredients were found at 11% against 15%. Show cause notices were stated to have been issued by the Office of Chief Agriculture Officer, Tarn Taran to the manufacturing company as well as to the dealer. Against the aforenoticed factual matrix, the impugned complaint dated 17.12.2012 (Annexure P1) was instituted in the Court of Chief Judicial Magistrate, Tarn Taran and taking cognizance thereupon the summoning order dated 17.12.2012 (Annexure P2) has been issued to the present petitioners. Learned counsel appearing for the petitioners would contend that petitioner No. 1 is the Director of the company, namely, M/s Unique Farm Aid Pvt. Ltd. and petitioners No. 2 and 3 are the Godown Incharge and Sales Officer of the company and under the provisions of the Insecticide Act, 1968 (hereinafter referred to as 'the Act') and with particular reference to Section 33 thereof, whenever a company is sought to be prosecuted for an offence under the Act, such persons alone can be cited as accused as were in charge of or were responsible to the company for the conduct of its business at the time of commission of the offence. Counsel would argue that the complaint is required to specifically and categorically aver that the accused were in charge of or were responsible to the company for the conduct of its business. Counsel has further contended that in the present case, the company i.e. M/s Unique Farm Aid Pvt. Ltd. has already appointed one person under Section 33 of the Act i.e. Sh. S.K. Pathak, Quality Control Manager-cum-responsible person/ nominated person and as such the impugned complaint and prosecution in pursuance thereto could proceed against the company as also the responsible/nominated person alone. It has been argued that the present petitioners merely on account of holding the position of a Director, Godown Incharge and Sales Officer could not have been summoned to face trial. Percontra, learned State counsel would contend that while initiating prosecution under the Act, it is not necessary to reproduce the words contained in Section 33 of the Act. Learned State counsel has further argued that a perusal of the complaint would in itself show that the requirement of Section 33 of the Act has been complied with and as such no interference by this Court in exercise of the powers under Section 482 Cr.P.C. is called for. Counsel for the parties have been heard at length. The sole issue arising in the present case is no longer resintegra. The Hon'ble Supreme Court in State of NCT of Delhi Vs. Rajiv Khurana, 2010(3) RCR(Criminal) 912 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 & Others 1983(1) RCR(Criminal) 73, State of Haryana Vs. Brij Lal Mittal & Others, 1998(2) RCR(Criminal) 608, K.P.G. Nair Vs. Jindal Menthol India Ltd., 2001(10) SCC 218 , Katta 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. 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.” The legal position as enunciated by the Hon'ble Apex Court is that it would be imperative to specifically aver in the complaint that the accused was/were in charge of and was/were responsible for the conduct of business of the company. It has further been held that unless clear averments are specifically incorporated in the complaint, the accused cannot be compelled to face the rigmarole of a criminal trial. In the facts of the present case, the impugned complaint dated 17.12.2012 has been placed on record at Annexure P-1. Insofar as the present petitioners are concerned, namely, P.D. Garg, D.K. Goyal and Bachan Singh, the averments are confined to the following :- “ Whereas, P.D. Garg son of Late Sh. J.L. Garg, r/o 3421/1, D.B. Gupta Road, Karol Bagh, New Delhi, Sh. S.K. Pathak s/o Sh. R.S. Pathak r/o K-1007, Sector 23, Raj Nagar, Ghaziabad (UP) Chemist and Responsible Person for Quality Control, Sh. Bachan Singh s/o Kartar Singh r/o VPO Dhani Safi Wali, Tehsil Abohar, Distt. Ferozepur, Now Distt. Jalalabad (Punjab) Responsible Person for Godown Incharge at Abohar, M/s Unique Farm Aid Pvt. Ltd., 6th Mile Stone, G.T. Road, Chhapraula, Distt. Ghaziabad (UP) are Responsible Officer (Copies of affidavits of Responsible Person as Annexure-T to Annexure-W) by manufacturing, selling, stocking and distributing the above said misbranded Clodinofop Propargyl 15% WP, the firm M/s Unique Farm Aid Pvt. Ltd., 6th Mile Stone, G.T. Road, Chhapraula, Distt. Ghaziabad (UP) and commit an offence punishable u/s 29(1) (a) read with section 3(k)(i) of the Act and they are all liable for prosecution under section 33 of the Act. The above mentioned accused Sr. Ghaziabad (UP) and commit an offence punishable u/s 29(1) (a) read with section 3(k)(i) of the Act and they are all liable for prosecution under section 33 of the Act. The above mentioned accused Sr. No. 1 to 7 are liable under Joint Trail and punishment u/s 3(k)(i), 18, 29 and 33 of the Act and Rule 27(5) of the Insecticide Rules, 1971 as in this case the activities of the manufacturer and the dealer are sufficiently connected in the manufacturing and sale of misbranded Clodinofop Propargyl 15% WP with their knowledge, consent and connivance of all the above said accused, the offence was done in the concert, presence to the pre-arranged plan to get more profits.” Clearly the averments contained in the complaint insofar as the present petitioners are concerned, are short of the mandatory requirement of Section 33 of the Act and as held in State of NCT of Delhi Vs. Rajiv Khurana's case (supra) supra), that a person/s cited as accused are or were at the time of commission of the offence, in charge of or responsible to the company for the conduct of its business. In view of the reasons recorded above, the present petition is allowed. The complaint dated 17.12.2012 and all subsequent proceedings emanating therefrom qua the present petitioners are quashed. Petition allowed.