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2021 DIGILAW 818 (KAR)

SRINIVAS REDDY v. BASAVAREDDY MANJULA

2021-08-18

RAJENDRA BADAMIKAR

body2021
JUDGMENT : Rajendra Badamikar, J. 1. The revision petitioner has filed this petition under Sec. 397 read with Sec. 401 of Cr.P.C. for setting aside the judgment and sentence passed in Crl.A.No. 5/2012 dtd. 13/7/2012 on the file of the I Fast Track Court, Koppal confirming the judgment of conviction and order of sentence passed in CC No. 4/2011 on the file of JMFC, Koppal. 2. The brief facts leading to the case are that the revision petitioner was accused and he was prosecuted for the offence punishable under Sec. 29(1) of the Insecticide Act. As per case of the prosecution the accused is the occupier and responsible person dealing with the sale of insecticide. On 2/2/2010 the complainant visited the sale unit of the accused situated in Halavarthi and gave notice under Sec. 22(5) of the Act regarding drawing of sample of insecticides for chemical examination. According to the complainant at that time the accused has offered to sell Endo Sulfan 35% and there were 250 ml 400 containers in the shop premises. The complainant obtained three bottles as samples and he handed over one sample to the accused and obtained necessary endorsement. Then in this regard he has also drawn mahazar and one sample was sent to examination to Insecticides Laboratory situated in Bellary. On 4/3/2010 he received report that sample bought from the shop of the accused was misbranded and thereafter he issued show cause notice to the accused to submit explanation. The accused has forwarded an application and sought for re- examination of the other sample with a request to send the same to the Central Laboratory. Accordingly, the other sample was sent to Central Insecticides Laboratry, Faridabad and the report was received on 20/9/2010 disclose that sample sent was also misbranded. Thereafter after obtaining sanction the prosecution was initiated. The accused has appeared and after recording the evidence the magistrate has convicted the accused under Sec. 255(2) of Cr.P.C. for the offence under Sec. 29(1)(a) of Insecticides Act and imposed imprisonment for a period of one year with fine of Rs.50,000.00 with default clause of three months imprisonment. This order came to be challenged in Crl.A.No. 5/2012 and the learned sessions judge presiding over the Fast Track Court by judgment dtd. 13/7/2012 dismissed the appeal by confirming the conviction and imposition of sentence. The accused has deposited the fine. However, he has filed this revision. This order came to be challenged in Crl.A.No. 5/2012 and the learned sessions judge presiding over the Fast Track Court by judgment dtd. 13/7/2012 dismissed the appeal by confirming the conviction and imposition of sentence. The accused has deposited the fine. However, he has filed this revision. 3. Learned counsel for the revision petitioner would contend that the entire prosecution itself is vitiated as a wrong person has been prosecuted as accused is not responsible for business as he is only a distributor but he is not a manufacturer. He would also contend that there is violation of the provisions under Sec. 24(1) of the Act. He would also contend that the benefit of Sec. 30(3) of the Act is also not extended. He would contend that though the sanction was obtained to prosecute the company represented by manufacturer but only he being a distributor was prosecuted but the company was spared which is impermissible under Sec. 33(1) of the Insecticides Act. Hence, he would seek for setting aside the impugned order by allowing the revision. 4. Learned HCGP would support the judgments of the Courts below. 5. It is necessary to note here that the complainant has bought the sample on 2/2/2010 and one sample was handed over to accused and one sample was retained by him and third sample was sent by him to Insecticides Laboratory Bellary wherein it is reported that sample is found to be misbranded. It is not under serious dispute. Subsequently as per the request of the accused the second sample was sent to Central laboratory situated in Faridabad, Haryana and report dtd. 20/9/2010 also disclose that it is misbranded. Hence, admittedly it is evident that the report of the State Laboratory as well as the Central Laboratory are uniform in reporting with the samples are misbranded. Hence, prima-facie there is evidence that the offence is being committed. However, it is important to note here that the accused/revision petitioner is only a administrator and he is not a manufacturer. Very interestingly the investigating officer has obtained sanction for prosecuting the company as well as accused. Ex.P.21 disclose that the investigating officer has sought permission for prosecuting the present revision petitioner-accused as well as the manufacturer i.e., KPR Fertilizers Limited. But interestingly the company was not at all prosecuted for the best reasons known to the complainant. Very interestingly the investigating officer has obtained sanction for prosecuting the company as well as accused. Ex.P.21 disclose that the investigating officer has sought permission for prosecuting the present revision petitioner-accused as well as the manufacturer i.e., KPR Fertilizers Limited. But interestingly the company was not at all prosecuted for the best reasons known to the complainant. Sec.33(1) of the Insecticides Act, 1968 reads as under: 33. Offences by companies: (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, or was responsible 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-sec. shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence (2) xxx xxx 6. Hence, it is evident from wordings of Sec. 33(1) of the Act mandates that any offence committed by the company any person in charge of the business of the company and responsible for the conduct of the business of the company along with the company shall be deemed to be guilty of the offence and shall be punished accordingly. Hence, it is mandatory under Sec. 33(1) of the Act that the company is required to be prosecuted. Very interestingly the investigating officer has not at all prosecuted the company and no explanation is offered for sparing the company. Even the managing director of the company was spared who has executed GPA in favour of the revision petitioner who was the manufacturer and controller of the entire production. It is not the case of the prosecution that the product when delivered to the accused was branded but accused played mischief with it and therefore it is misbranded. No defence is put forward by the prosecution in respect of the mischief being played after production of the goods and were delivered to the revision petitioner/accused. It is not the case of the prosecution that the product when delivered to the accused was branded but accused played mischief with it and therefore it is misbranded. No defence is put forward by the prosecution in respect of the mischief being played after production of the goods and were delivered to the revision petitioner/accused. Under such circumstances it was incumbent on the part of the prosecution to prosecute the company as well as managing director or the production in charge who were responsible for production of misbranded material. But the prosecution has prosecuted only a distributor by sparing the company and hence, entire prosecution stands vitiated. There is no explanation forthcoming as to why the prosecution is protecting the company and the complainant has not given any explanation in this regard. The prosecution has violated the mandatory provisions of Sec. 33(1) of the Act and entire prosecution is bound to fail as it has led to miscarriage of justice. Both the Courts below failed to consider this basic aspect and failed to appreciate this fact. In this context the learned counsel for the revision petitioner has placed the following decisions: 1. Jindal Fertilisers vs. State of Punjab, 2010 (4) RCR (Criminal) 146 2. S.S. Fertilisers vs. State of Punjab, 2017 (2) RCR Criminal 59 3. Naresh Kumar and Others vs. State of Punjab, 2011 (2) RCR (Criminal) 202 4. Gurinder Singh and Others vs. State of Punjab, 2019 (3) RCR Criminal) 356 5. Suresh Kumar Kocchar and Others vs. State of Punjab, 2014 (2) RCR (Criminal) 206 6. Cheminova vs. State of Punjab and Others 7. The said principles are directly applicable to the case in hand. Though the said decisions cannot act as precedents but they are having a persuasive force and in the instant case also no case is made out to show that the accused is a manufacturer. Under such circumstances, the entire prosecution fails and both the Courts below have committed and error in convicting the accused as such the revision needs to be allowed and accordingly, I proceed to pass the following: ORDER: The revision petition is allowed.