Ajay Handa vs The State of Punjab

N.K. Kapoor, J.—Petitioner seeks quashing of complaint under Sections 3(k)(i), 17, 18 29 and 33 of the Insecticides Act, 1968 (for short ''the Act'') read with Section/Rule 27(5) of the Insecticides Rules, 1971, (for short ''the Rules'') and also for quashing all the consequent proceedings arising on the basis of the said complaint.

The present petition has been filed by the proprietor of M/s. Henda Agro Chemicals, Jagraon, on the ground that no valid sanction has been granted for prosecution of the petitioner which is a condition precedent to launch such a prosecution and is not an idle formality. According to the petitioner, the present sanction has been granted on a cyclostyled form mentioning the name of the dealer, distributor and manufacturer. There is no mention of the contents of the report of the analyst nor there is any mention of the specific provision under which the prosecution is sought. Even the name of the Insecticide Inspector who took the sample and other contents have not been mentioned by the sanctioning authority. Reliance has been placed upon the judicial pronouncements of this Court in support of his contention that unless the sanctioning authority has applied his mind and has assigned reasons for granting the sanction, purpose of Section 31 of the Act becomes meaningless and illegal. According to the petitioner, even the names of the persons to be prosecuted have not been mentioned in the sanctioning order. It was thus prayed that the complaint be quashed.

Pursuance to the notice of motion issued by the Court, reply by way of affidavit has been filed by Sh. Darshan Singh, Insecticides Inspector, Jagraon. In reply, it has been stated that he visited the shop of the petitioner on 10-6-1991 and took the sample of Butachlore 50% batch No. KBEN/1/91 manufactured by Kill Pest Pvt. Limited, Bhopal. This sample was sent for analysis through the office of the Chief Agricultural Officer, Ludhiana, to the Senior Analyst Insecticides Testing Laboratory, Ludhiana. As per analysis report of this sample, the result shows 19.63% active ingredient contents instead of 50% hence this sample did not conform to LSI specification in respect of active ingredients contents. It has further been submitted that after receiving the copy of analysis report a show cause notice was served vide CAO Ludhiana letter No. 7574 dated 20-6-91 to the concerned firm and a copy of analysis report was also served. Both the copies of notices are annexed as R-2 and R-3 respectively. After obtaining necessary consent under clause 31(1) of the Insecticides Act, 1968, this prosecution was launched against the petitioner and manufacturer according to written consent. A copy of written consent u/s 31(1) is enclosed as R-2.

It has been further stated that before launching prosecution, written consent under clause 31(1) of the Act was obtained from the competent authority on behalf of the State Government Joint Director of Agriculture (I.C.D.P) Punjab who had already been empowered vide notification dated 23-6-86 to accord written consent under clause 31 (1) of the Act and thus he accorded his consent. Since the Joint Director of Agriculture had granted written consent, there was no reason to delegate further powers for instituting the prosecution as Insecticides Inspector had been fully vested with the powers as per Rule 27(5) of the Rules.

On merits, it has been stated that as per analysis report, the sample contained 19.63% active ingredient contents instead of 50%. This way petitioner has rightly been accused of violating the provisions of the Act. It was thus prayed that the complaint pending before the Sub-Divisional Judicial Magistrate, Jagraon, be permitted to be decided on the basis of record and evidence.

The first contention of the learned counsel for the petitioner is that sanction accorded u/s 31(1) of the Act is, in fact, no sanction in law as there has been no applicability of mind on the part of sanctioning authority while granting such sanction. Elaborating, the counsel urged that the written consent/sanction is on a cyclostyled paper wherein the names of the party as well as of the Joint Director and Insecticide Inspector have been merely filled in which shows that the facts leading to the complaint were never brought to the notice of the sanctioning authority. This approach has been deprecated in a number of decisions of this Court, and the present case is not different from the earlier decided cases. Since earlier too, such like complaints have been quashed by this Court, the present petition seeking quashing of the complaint also deserves to be allowed.

Learned Asstt. Advocate General by way of reply urged that it is wrong to suggest that the sanctioning authority did not apply his mind while granting sanction/approval u/s 31(1) of the Act. According to the counsel, the record of the case file was put before the sanctioning authority who after perusing the same came to the conclusion that M/s. Handa Agro Chemicals, Jagroan, (dealer) has violated the provisions of Section 3(i)(k), 17, 18, 24 and 33 of the Act read with Rule 25(5) of the Rules. After noticing, the sanctioning authority in exercise of his powers vested in him vide notification No. 15/5/86-Agro-2(8) 9264 dated 23-6-1986 gave the necessary consent and approval to take appropriate legal action against M/s. Handa Agro Chemicals, Jagraon, (dealer) and M/s. Kilpest Private Limited, Bhopal, (manufacturer). As regards the decisions in other cases mentioned by the counsel for the petitioner, it was stated that same proceeds on their own facts and thus have no applicability to the facts of the present case. Even otherwise, the sanctioning authority is as per Section 31 of the Act. Lastly, it was submitted that as per analysis report sample of insecticide having been found to be mis-branded which fact would be otherwise proved before the Court while evidence is led in this regard. Prima facie there being material on record that petitioner is guilty and so liable to punishment. The provision of Section 482 of the Code of Criminal Procedure cannot be invoked to scuttle such a prosecution. The apex Court in a number of judgments has held that these exceptional powers of the Court u/s 482 of the Code of Criminal Procedure should be most sparingly used i.e. in the rare of rarest cases, and the present case certainly does not fall in the said category. It was thus submitted that the present petition deserves to be dismissed.

I have heard learned counsel for the parties and have gone through the documents referred to by the respective counsel. Factual aspects are not in dispute i.e. sample of Baaz Butachlor 50% E.C. manufactured by Kilpest Pvt. Limited was taken in the presence of Ajay Handa, Proprietor of M/s. Handa Agro Chemicals, Jagraon, as well as in the presence of Jaswinder Singh who signed as a witness. The proprietor of the firm Mr. Ajay Handa, signed on the intimation slip and seizure memo Form No. XII. The Insecticides Inspector after following the due procedure for taking sample, prepared three copies of detail slips regarding the detail mentioned for the sample and prepared at the spot in the presence of Mr. Ajay Handa and Mr. Jaswinder Singh - a witness. One part of the sealed sample out of these three samples along with Form No. XII was handed over to Mr. Ajay Handa proprietor of the firm and Bill No. 562 dated 10-6-1991 was taken from this firm for making payment of account of the sample taken. The second part of the sealed sample along with seizure memo was sent to the Senior Analyst, Insecticides Testing Laboratory, Ludhiana. On receipt of the analysis report, it was found that the sample was misbranded. As per analysis report, 19.63% active ingredient contents instead of 50%. The report of the insecticide analysis is dated 26-6-1991. It states that the sample does not conform to ISI specifications with respect to its per cent active ingredients contents (Annexure R-4). On receipt of the report, M/s. Handa Agro Chemicals was apprised of this report by registered post vide communication bearing No. 7574 dated 28-6-1991 (Annexure R-l). It was directed that the petitioner may send his explanation in writing to this office within 10 days of the receipt of this letter failing which he would be proceeded against for violation of the Act and the Rules. This communication enclosed therein a copy of the test report. Relevant material was placed before the Joint Director Agriculture (1CDP) for his written consent/ approval u/s 31(1) of the Act who after perusing the record placed before him came to the conclusion that M/s Handa Agro Chemicals, Jagroan, and others have violated Sections 3(k)(i), 17,18,24 and 33 of the Act read with Rule 25(5) of the Rules and thus exercising the powers vested in him gave consent and approval to Mr. Darshan Singh, Insecticide Inspector, for taking legal action against M/s. Handa Agro Chemicals, Jagraon (dealer) and M/s. Kilpest Pvt. Limited, Bhopal (manufacturer), Annexure R-2. On the basis of it, complaint was filed in the Court of Judicial Magistrate (Annexure P-1).

Challenge is to the sanction given by the Joint Director Agriculture vide Annexure R-2 on the basis that the same has been given in a mechanical manner without any applicability of mind and thus it is not sufficient in the eye of law. Section 31 of the Act reads as under:-

"31. Cognizance and trial of offences:-

(1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorised in this behalf by the State Government.

(2) No Court inferior to that of a metropolitan magistrate or a judicial magistrate of the first class shall try any offence under this Act."

A bare perusal of the above provision which is under challenge envisages that no prosecution is to be instituted for an offence under this Act except by, or with the written consent of the State Government or a person authorised in this behalf by the State Government. In the present case, there is no dispute that the Joint Director Agriculture had been conferred powers by the Government as per notification No. 15/5/86/Agri. 2(8)/9264 dated 23-6-1986. Joint Director Agriculture in exercise of his powers u/s 31(1) of the Act has given his consent and approval to Mr. Darshan Singh, Insecticides Inspector, Jagroan, to take legal action against the persons mentioned in the approval order Annexure R-2. Yet the objection of the counsel for the petitioner is that the so called approval has been granted in a mechanical manner i.e. precise facts have not been brought to his notice, and so that consent accorded is vitiated.

A bare perusal of the aforesaid section reproduced above clearly bring out that each and every fact, namely, date of the sample when taken, date of analyst report need not be mentioned specifically in the sanction order. All the same, the relevant material has been placed before the authorities who after scrutinising the same has to form an opinion whether the person accused can be said to have violated the provisions of the Act and Rules. The plea of the petitioner when tested in the light of material placed on record by the respondent leaves no manner of doubt that wholly insignificant objection has been raised to unnecessarily delay the adjudication of the pending dispute. Even otherwise, Section 31 of the Act does not contemplate that mention must be made of each and every fact ultimately leading to the grant of consent for prosecution.

Before examining the matter any further, it would be appropriate to deal with the judgments cited by the counsel for the petitioner. In case reported as Gian Chand v. State of Punjab 1994(2) RCR 114, quashing of the complaint was sought on the ground that though sanction for prosecution of the partnership firm was obtained yet prosecution was launched against one of the partners only who was not shown to be the in charge or responsible to the firm for conduct of business. In these circumstances, it was held that the prosecution of such a partner was an abuse of the process of the Court. This judgment has no applicability on the facts of the present case as the petitioner admittedly is the sole proprietor of M/s. Handa Agro Chemicals, Jagraon.

In case reported as D.N. Chaturvedi v. State of Punjab 1994(2) RCR 133, the complaint was quashed since the consent order did not contain the name of the Insecticides Inspector or the date when the sample was taken and how the same was found to be misbranded. In the present case, the name of the Inspector finds mention in the sanction order Annexure R-2. It has also been clearly mentioned in Annexure R-2 that the dealer has violated Sections 3(k)(i), 17, 18, 24 and 33 of the Act. Chief Agricultural Officer had intimated to M/s Handa Agro Chemicals, Jagraon, about the analysis report vide a registered communication dated 28-6-1991, Annexure R-1, which reads as under:-

"On 10-6-91 Shri Darshan Singh Insecticides Inspector, Jagraon took sample of Baaz Butachlur 50% E.C. manufactured in April, 1991, date of expiry March, 1993, with Batch No. KBEN 1/91 which has been manufactured by Kilpest Private Ltd. This sample was sent to the Insecticides Test Laboratory, Ludhiana, vide this office letter No. 7350 dated 10-6-91. According to the test report, received from this Laboratory about the sample, this sample was found misbranded. A copy of the sample test report is sent to you. According to the test report of this sample Butachlor instead of 50% was found 19.63%. In this way, you by keeping this insecticides at your shop and by selling this misbranded insecticide, have directly violated the provisions of Section 3K(1) and 18(2), of the Insecticides Act, 1968 and have also violated the Insecticides Rules, so why not your licence for selling insecticides may be cancelled for your above action.

You within ten days of the receipt of this letter, please send your explanation in writing to this office of the undersigned. In the event of not doing so, you will be proceeded against for violation of the Insecticides Act, 1968 and Rules 1971, ex parte".

The requirement as highlighted in D. N. Chaturvedi''s judgment as to the date of sample and when the same was found to be a misbranded stands fully complied with. Thus, this judgment too does not help the petitioner in any manner.

Similarly, in case reported as Manjit Singh v. State of Punjab 1994(1) RCR 650, the complaint was quashed as sanction for prosecution was given by the competent authority on a cyclostyled form without giving the name of Inspector who took the sample, date on which sample was taken and how the sample was found to be misbranded. As observed above, if the sanction order is read in the context of the complaint Annexure P-1 and the registered communication Annexure R-1 sent by the Chief Agricultural Officer, it is proved that the petitioner was aware of the sample taken, date on which the sample was taken and how the sample was found to be misbranded. This judgment too is not applicable on the facts of the present case.

In another case reported as Jot Ram Dharam Chand v. State of Punjab 1993 (2) RCR 456 and Sadhu Singh v. State of Punjab 1993(2) RCR 593, the complaint was quashed as it did not contain the name of the Insecticides Inspector who took the sample and the date of sample and how the same was found to be misbranded. Both these judgments are not applicable as sufficient material has been placed on record by the respondent to disprove the assertion made by the petitioner.

It is well settled that for the purpose of exercising its power u/s 482 of the Code of Criminal Procedure to quash a FIR or a complaint, the High Court is to proceed entirely on the basis of allegations made in the complaint and the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegation. Test to be applied by the Court is as to whether the uncontroverted allegation as made prima facie establish the offence. It is also for the Court to take into consideration any special feature which appear in a particular case to consider whether it is expedient and in the interest of justice to permit prosecution to continue. Thus, when in the opinion of the Court there are bleak chances of an ultimate conviction, the Court can exercise such a jurisdiction. However, jurisdiction u/s 482 of the Code of Criminal Procedure is to be exercised sparingly and with circumspection. The apex Court in case reported as State of Haryana and others Vs. Ch. Bhajan Lal and others, has held as under:-

"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers u/s 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spit on him due to private and personal grudge."

Recently, in case reported as Janata Dal Vs. H.S. Chowdhary and Others, , the apex Court examined the extent of inherent powers conferred by Section 482 of the Code of Criminal Procedure and it held as under (at pp. 631, 632 of Cri LJ):-

"This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. This Court in State of Haryana v. Ch. Bhajan Lal [1990] Su 259 (3) SCR 259 to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings....."

Facts of the present case when tested in the light of decisions of apex Court regarding extent of inherent powers to be exercised in a given case, leaves no doubt that it is not one of rarest of rare cases where such powers could be invoked. Complaint and document accompanying i.e. report of analyst, prima facie, makes out a case which needs scrutiny by the trial Magistrate. The petition is accordingly dismissed.