Amar Khad Store and Another vs State of Punjab

M.L. Koul, J.—These two cases i.e. Criminal Misc. No. 20088-M of 1995 and Cri. M. No. 1752-M of 1995 are bracketted together for the purposes of disposal as the merits of both these cases are similar to each other and the legalities involved for adjudication are also the same.

In Criminal Misc. No. 120088-M of 1995, the petitioner Amar Dass Sharma, Proprietor of M/s. Amar Khad Store is involved for an offence u/s 3(k) (i), 17, 18, 29 and 33 of the Insecticides Act, 1968 (hereinafter referred to as the Act) read with Rule 27(5) of the Insecticides Rules, 1971 (hereinafter referred to as the Rules) pending in the Court of Chief Judicial Magistrate, Gurdaspur.

The petitioner seeks the quashing of the proceedings pending before the Chief Judicial Magistrate, Gurdaspur on the ground that the petitioner had obtained the licence from the Chief Agricultural Officer, Gurdaspur for the purposes of selling different types of insecticides and the same are manufactured by M/s. Arti Minerals which is a registered manufactuer of such insecticides for which the licence has been granted to it by the State Government of Punjab. Even in the licence issued by the Chief Agricultural Officer, the name of manufacturer is incorporated and the petitioner has been authorised to sell the insecticides manufactured by M/s. Arti Minerals.

As per the allegations contained in the complaint the Insecticides Inspector inspected the shop of the petitioner on 15-6-1989 and took three sealed samples of Butachlor 50% EC from the shop of the petitioner, weighing one litre each. One sample was sent to the Senior Analyst Pesticide Testing Laboratory, Ludhiana for analysis and the same was found misbranded as it did not conform to the relevant ISI specifications.

Similarly in Cri. M. No. 17592-M of 1995 the facts are that on 4-3-1994 the Insecticides Inspector visited the shop of the petitioner and took three original containers of 100 ml. packing in original form from the dealer. The sample was sent for analysis to the Insecticides Testing Laboratory, Amritsar. The sample was found mis-branded as it did not conform to the relevant ISI specifications and the percentage of active ingredients was found to be 32.55 per cent against 36 per cent.

Objections have been filed by the other side saying that the petitioner could not sell the insecticides which are misbranded and as these have been recovered from their shops therefore they have committed an offence as envisaged above under the provisions of the Act.

Heard learned Counsel for the parties and had a thoughtful consideration over (he record on the file.

Mr. Ravinder Chopra, learned Counsel for the petitioners has emphatically (sic) great force argued that once the licence carried by the District Agricultural Officer has been set at naught by the Deputy Director Locust Control and Plant Protection, the offence with which the petitioners are charged dies down for the fact that the licence has been restored to the petitioners by the appellate authority who found that the petitioners were dealing with the sale of insecticides in sealed containers and the samples were taken out from the sealed containers. These samples were sent to the Analyst for his opinion and were kept in safe containers. It is further contended that the petitioners at no point of time were able to alter or change the contents of the insecticides which had come in the sealed tins to them and they were selling the same tin wise to the customers.

The Deputy Director, Locust Control and Plant Protection has said in his order that the sample of Butachlor 50% EC drawn according to the provisions of the Act was found misbranded on analysis but it was no where found that the petitioners have misbranded it for they had received these insecticides in the sealed containers and were selling them to the people in the same containers. In no way the Inspector has stated any where that these containers were opened when the samples were drawn. Rather he has said in the complaint that these were the sealed containers purchased by him where from samples were taken out and in no manner the petitioners have dealt with these containers while in their possession and, therefore, once the licence has been restored to the petitioners, then offence with which they have been charged dies down and the petitioners cannot be said to have committed the offence.

Mr. Chopra, learned Counsel for the petitioners referred to 1 (1992) CCR 768 (SC), wherein the Apex Court has held that "we are inclined to accept the submission and taken the view that whether it is prosecution or contravention leading to cancellation, Sub-section (3) applies. In this view of the matter on the facts found that it was a full tin in a sealed condition, the liability arising out of misbranding was not of the appellant. Unless he had any other source of information about misbranding and it has not been established the appellant is entitled to the protection of Sub-section (3). In the facts once the appellant''s contention that it was a sealed tin intact has been found, the burden that lay on him under the provision of Sub-section (3) had been satisfactorily discharged,'' even in the matter of concerning the question of cancellation of licence and, therefore his licence should not have been cancelled.

Thus from the said case law laid down by the Apex Court, it is found and established that once the petitioners have sold the insecticides in the sealed containers and the samples have been taken out from such containers and there is no proof otherwise with the prosecution that the petitioners misbranded the insecticides, the petitioners cannot be held to have committed any offence within the provisions of the Act.

There is no proof available on the file that the petitioners are directly working as an agent under the Principal who is the manufacturer of the insecticides and is registered with the State of Punjab. Indirectly the petitioners have been purchasing the insecticides from the authorised manufacturer of the State of Punjab and it was for the State of Punjab to look into the matter whether any misbranding had taken place at the behest of the manufacturer and the petitioners who are only licence dealers cannot be held to have committed any offence.

In this regard reference has also been made by Mr. Chopra on the authority of the single Bench of this Court reported as (1992) 1 RCR 613. In that case the petitioner had acquired the insecticide from a duly licenced manufacturer i.e. Markfed Agro Chemicals, S.A.S. Nagar, Mohali. The sample while it remained in possession of the petitioner was properly stored and remained in the same state as when he acquired it. There were no allegations in the complaint that the sample was not properly stored or it was not found in the same state as when it was acquired. It was, therefore, held that as the sample was purchased from a licenced manufacturer, the petitioner could not know with reasonable diligence that the insecticide in any way contravened any provision of the Act.

The said case law has direct bearing on the merits of the present cases as well for in these cases there is no proof available that the samples were at any state of time changed by the petitioners and the samples were not taken away from-the sealed containers received by the petitioners from the manufacturer. As the samples were purchased from the licenced manufacturer, the petitioners could not know with reasonable diligence and care that the insecticide in any manner contravened any provision of the Act. If the samples and the material of insecticide available with them was misbranded the liability lies upon the manufacturer and not the petitioners.

In view of the above discussion, both the petitions are allowed and the proceedings initiated against the petitioners are quashed.