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2018 DIGILAW 4022 (PNJ)

Darshan Singh v. State Of Punjab

2018-10-06

RAJBIR SEHRAWAT

body2018
JUDGMENT Rajbir Sehrawat, J. (Oral) - Present petition has been filed seeking quashing of the Complaint No. 64 dated 03.07.2017 registered under section 29(1)(a) of the Insecticides Act, 1968; read with Rule 27(5) of the Insecticides Rules, 1971. 2. The factual gamut of the case, as disclosed in the pleadings, is that petitioner No. 1 is the proprietor of the petitioner No. 2, a firm who is a valid licensee; to deal in the Insecticides under the Insecticides Act. In the normal course of his business, petitioner No.2 was having stock of insecticides named, Lambda Cyhalothrin 4.9% CS, bearing Batch No.SLFSR-176, manufacturing date 26.07.2014 and expiry date 25.07.2016. Stock was in the packing of 250 ml each; manufactured and supplied by M/s Jai Shree Rasayan Udyog Ltd; Delhi, which is a registered and licensed manufacturing company; for the said insecticide. On 17.08.2015 the Insecticide Inspector had taken sample from the shop of petitioner No. 2. While taking the sample, the report in Form XX was prepared by the said Insecticide Inspector. The description of the sample, as given in Form XX, mentions the packing of the material, to be in original packing. Subsequently, the sample was sent for chemical analysis. As per the Analysis Report; the sample was found to be misbranded; in terms of lacking active ingredients; meant for the insecticide. As per the Report, the active ingredients in the sample was found to be 1.77%, whereas, it was required to be 4.9% as prescribed for this particular product. After receipt of the Report of Public Analyst, notice was given to petitioner No.2. Petitioner No.2 chose to exercise his right to re-analysis of the second sample. Even the second sample, as analysed by Central Insecticide Laboratory, Faridabad, was found to be misbranded; in the above said terms. But the deficiency was found to be 2.3% as against the required standard of 4.9% of the active ingredients. 3. Thereafter, the Insecticide Inspector filed the above said Complaint. The petitioners were summoned in the Complaint by the Court of Chief Judicial Magistrate, Roopnagar. It is against this complaint and the summoning order that the petitioners have approached this Court; for quashing of the above said Complaint and the consequent proceedings arising therefrom. 4. The sole argument of learned counsel for the petitioners is that the sample, as taken by the Insecticide Inspector, was in a sealed and original packing. It is against this complaint and the summoning order that the petitioners have approached this Court; for quashing of the above said Complaint and the consequent proceedings arising therefrom. 4. The sole argument of learned counsel for the petitioners is that the sample, as taken by the Insecticide Inspector, was in a sealed and original packing. This fact has even been mentioned by the Insecticide Inspector in Form XX prepared at the time of taking of the sample. All the relevant particulars of originality of the sample, including the batch No., date of manufacturer and the date of expiry, along with the name of the manufacturer, have duly been found on the sealed container of the sample; taken by the Insecticide Inspector. All these details are duly mentioned in the Form XX. Accordingly, it is argued by the counsel that since the packing of the insecticide being sold by the present petitioner was original and sealed packing, therefore, the petitioners could not be held liable for misbranding of the product, which is the liability of the manufacturer only; if at all; the sample is found to be misbranded. It is contended that there is not even allegation that the petitioners had tempered with the packaging. 5. To buttress his argument, learned for the petitioners has relied upon the judgments of this Court rendered in M/s S.S. Fertiliser and another v. State of Punjab; 2017(2) R.C.R.(Criminal) 59, M/s J.S. Agro, Chemicals etc. v. State of Punjab; 2013(1) R.C.R.(Criminal) 146, Naresh Kumar and others v. State of Punjab; 2011(2) R.C.R.(Criminal) 202, M/s Josan Khad Store and others v. State of Punjab; 2014 (1) R.C.R. (Criminal) 43, Dwarka Prashad Dhawan and others v. State of Punjab; 2010(2) R.C.R.(Criminal) 413. Learned counsel for the petitioners has further relied upon the judgment of the Hon'ble Supreme Court rendered in Ms/Kisan Beej Bhandar, Abohar v. Chief Agricultural Officers, Ferozepur and another; 1990(Supp.) Supreme Court Cases 111 to further contend that the protection of Section 30(3) of the Insecticide Act is available to the dealer, against, both, whether it is cancellation of his license or his prosecution for a misbranded insecticide, if it is shown that the sample was taken from a sealed and original packaging. 6. 6. Learned counsel for the petitioners has further argued that what is the meaning of original packing has been clarified by the judgment of this Court rendered in M/s J.S.Agro, Chemicals etc(supra); on the basis of the affidavit filed by the officer of the department in that particular case. Hence it is contended that in the present case, since the sample was drawn from original and sealed packaging, therefore, the petitioner is entitled to the protection under section 30(3) of the Insecticides Act. Hence the Complaint and the Summoning Order against the petitioners are not maintainable. 7. On the other hand, learned counsel for the State has submitted that sample has duly been drawn in this case. Even the manufacturer of the product has been arrayed as an accused; along with the present petitioner. Therefore, misbranding is a matter of evidence which is to be seen during the trial. 8. Having heard the learned counsel for the parties and perusing the record, this Court finds that the submission of the learned counsel for the petitioners that the sample was drawn from the original packaging is duly verified from Form XX; which was prepared by the Sample Drawing Inspector on the spot itself. Hence, even on the face of it, this is clear that the sample was drawn from the original packing. Therefore, in view of the judgments mentioned above, which has been relied upon by learned counsel for the petitioners; the complaint against the petitioners could not be sustained. The petitioners, accordingly, would be entitled to protection of Section 30(3) of the Insecticide Act. 9. This Court also finds merit in the argument of the counsel for the petitioners that there is not even any allegation against the petitioners that they tampered with the container of the insecticide from which the sample was drawn. The petitioners have duly brought on record the fact that they are the valid licensee, having license No.780, as renewed from time to time, under the Insecticide Act. Hence the petitioners can not be charged for not having the license for possessing the material per se. In view of the fact and circumstances delineated above, neither the petitioner can be said to be dealing with the product without license nor can the petitioners be deprived of the protection under Section 30(3) of the Insecticide Act. Hence the petitioners can not be charged for not having the license for possessing the material per se. In view of the fact and circumstances delineated above, neither the petitioner can be said to be dealing with the product without license nor can the petitioners be deprived of the protection under Section 30(3) of the Insecticide Act. Therefore, the Complaint against the petitioners and the consequent proceedings against them deserve to be quashed. 10. However learned counsel for the respondents have pointed out that even the manufacturer has been arrayed as an accused in the present Complaint; on the basis of the same reports of the Public Analyst. Therefore, it is made clear that merely because the petitioners are found to be having protection under Section 30(3) of the Insecticide Act would not absolve manufacturers of their liability for the prosecution initiated against them. 11. In view of the above, the present petition is allowed. The Complaint and the consequent proceedings qua the petitioners are quashed.