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2015 DIGILAW 332 (MAD)

M. Balakrishnan v. V. Balasubramanian

2015-01-21

C.T.SELVAM

body2015
Judgment 1. This petition has been filed under Section 482 Cr.P.C., praying to call for the records from the lower Court and to duly quash the proceedings in S.T.C.No.5413 of 2008 on the file of Judicial Magistrate, Tenkasi, Tirunelveli District. 2. Heard the learned Senior Counsel for the petitioners. Despite printing the name in the cause list, there is no representation for the respondent. 3. These petitioners are the accused 3 to 5 in the case pending in S.T.C.No.5413 of 2008, on the file of the Judicial Magistrate, Tenkasi. 4. The complaint admits that 1st petitioner/3rd accused is a Chemist stationed at Coimbatore, while the 2nd petitioner/ 4th accused is the owner of the retail firm and the 3rd petitioner/5th accused is the seller of the product. The insecticide was manufactured by the first accused company at Mumbai and found in the possession of the retailer. The Insecticide was ASTAF of 75 SP (Acephat 75% SP) in containers of 100 grams bags. According to the complaint, seven such containers of 100 grams were found and in keeping with the provision 22(5) of the Insecticide Act, 1968, the Insecticide Inspector took three samples of 100 grams each, assigned them distinct code number and left one such sample with the seller after obtaining due acknowledgment. The charge is that upon testing, the active ingredient was found to be 63.28% as against the declared value of 75% noted on the container. Hence, the charge of misbranding under Section 3K (i) of Insecticide Act, 1968 has been made. 5. Learned Senior Counsel for petitioners submits that admittedly samples seized were in containers, that these petitioners are one being a chemist stationed at Coimbatore, far away from the place of manufacture at Mumbai, the second being a retailer and the third a salesman could not have had any knowledge of the contents of the containers not being of 75% active ingredient as informed in the label even had they exercise reasonable diligence. Hence, these persons could not be proceeded against. In support of his submission, the learned Senior Counsel relied on Section 30 of the Insecticide Act, 1968. 6. Section 30 of the Insecticide Act, 1968 reads thus: "30. Defences which may or may not be allowed in prosecution under this Act. Hence, these persons could not be proceeded against. In support of his submission, the learned Senior Counsel relied on Section 30 of the Insecticide Act, 1968. 6. Section 30 of the Insecticide Act, 1968 reads thus: "30. Defences which may or may not be allowed in prosecution under this Act. - (1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Act to prove merely that the accused was ignorant of the nature or quality of the insecticide in respect of which the offence was committed or of the risk involved in the manufacture, sale or use of such insecticide or of the circumstances of its manufacture or import. (2) For the purposes of section 17, an insecticide shall not be deemed to be misbranded only by reason of the fact that - (a) there has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or the preparation of the insecticide as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the insecticide or to conceal its inferior quality or other defect; or (b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it. (3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves- (a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof; (b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and (c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it." 7. Though normally the defence under Section 30(3) Insecticide Act, 1968 would have to be proved by the accused in the course of trial, in circumstances where the prosecution case does not admit of any inference other than that the petitioners/accused could have been had absolute knowledge of the percentage of active ingredients contained in the insecticide stored in containers, it would be appropriate for this Court to exercise the power under Section 482 Cr.P.C. and quash proceedings as against them. 8. Accordingly, this Criminal Original Petition stands allowed and the proceedings in S.T.C.No.5413 of 2008 pending on the file of the learned Judicial Magistrate, Tirunelveli shall stand quashed in respect of the petitioners/Accused Nos.3 to 5. Consequently, the connected M.P.(MD) No.1 of 2008 stands closed.