Artee Minerals vs State of Punjab

V.S. Aggarwal, J.

By this common judgment both Criminal Misc. Nos. 9454M of 1993 and 5517M of 1993 can be disposed of together because some of the questions involved in both the petitions are identical.

M/s Artee Minerals and Surinder Arun Sinha had filed a petition under Section 482 of the Code of Criminal Procedure seeking quashing of the proceedings against them in the case titled State of Punjab v. M/s. Jagjit and Company Railway Road, Patti pending in the court of Chief Judicial Magistrate, Amritsar. It pertained to offences punishable under Sections 3(k)(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 (hereinafter described as ''the Act''). Petitioner No. 2 Surinder Arun Sinha is stated to be an employee of petitioner No. 1. It is contended that on the complaint filed, the Chief Judicial Magistrate, Amritsar had taken cognizance of the above said offences because the sample taken by him was found to be misbranded. The petitioners seek quashing of the said order on the ground that there is no sanction to prosecute petitioner No. 2 and further the sanction has been granted by the authority under Section 31 of the Act without application of mind. Plea has also been raised that even cognizance had been taken mechanically. Consequently, the proceedings as such should be quashed.

In the reply filed, the petition has been contested. It has been pointed that petitioner No. 1 M/s. Artee Minerals is the firm which supplied misbranded insecticide and petitioner No. 2 is the expert person of petitioner No. 1 responsible for manufacturing of the said misbranded insecticide. The summoning order is stated to have been passed validly. As regards the sanction to prosecute, the reply indicates that full details were supplied to the officer and that as per Section 33 of the Act if an offence is committed by a company at that time a person who is incharge of the company should be deemed to be guilty and proceeded against.

In the connected Criminal Misc. No. 5517M of 1993 titled M/s Evergreen Chemical Enterprises and others v. State of Punjab a similar complaint has been made. It has been contended that M/s Evergreen Chemical Enterprises is a partnership concern and is a distributor of M/s. Mascot Agro Chemicals Private Limited. The sample had been taken from the premises of M/s Navneet Singh, Attari and was found to be misbranded. The sample was taken in November, 1990. The shelf life expired in October, 1992. By the time the petitioners were summoned, the shelf life had already been expired. The petitioners were deprived of their valuable right to get the second sample reanalysed from the Central Insecticides Testing Laboratory. Furthermore it is alleged that there is no proper application of mind by the sanctioning authority nor any sanction had been granted to prosecute the persons other than petitioner No. 1.

Even the said petition has been contested. The reply indicates that a show cause notice was issued to petitioner No. 1 alongwith the report of the Public Analyst. The said petitioner No. 1 did not indicate its intention for retesting the sample within 28 days of the receipt of the report. The complaint was filed in August, 1992 while the shelf life was upto October, 1992. Therefore, the petitioner was not deprived of its right to get the sample retested. It is denied that the other persons could not be prosecuted.

Taking up the first contention as to whether when an employee or a partner is arrayed as an accused if sanction to prosecute him is necessary or not ? Reference can well be made to the relevant provisions of the Insecticides Act. Section 31 of the Act prescribes that no prosecution for an offence shall be instituted except by or with the written consent of the State or a person authorised in this behalf by the State. Section 31 of the Act reads :

"31. Cognizance and trial of offences. (1) No prosecution for an offence under this Act shall be instituted expect 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."

The same can well be read with Section 33 of the Act which is also being reproduced below for the sake of facility :

"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 subsection 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) Notwithstanding anything contained in subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. For the purpose of this section,

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a parnter in the firm."

The provisions of Section 33 reproduced above reveal and show that for purposes of Section 33 of the Act, even a partnership firm is a company. Every partner is not liable but when the offence is committed by it only those persons who at the time of committing of offence and who is incharge of or responsible to the company for the conduct of the business as well as the company shall be deemed to be guilty of the offence. Consequently, conjoint reading of Sections 31 and 33 of the Act would show that it has to be shown that the person concerned was at the time when offence was committed in charge of and responsible to the company for the conduct of the business. In addition to that the sanction to prosecute must be against specific individuals. Merely granting a sanction to prosecute the company does not imply that it is a sanction to prosecute all partners in case of partnership firm or any of the employees. Some of the precedents on the subject would be in the fitness of things. In the case of Gian Chand v. State of Punjab, 1994(2) Recent CR 114 the sample of insecticide was found to be misbranded. The sanction was obtained for prosecution of the firm. The prosecution was launched against one of the partners. As against that partner, there was no sanction to prosecute. The proceedings qua that partner were quashed. Similar question cropped up in the case of M/s Sat Paul Rajender Parshad, Sunam v. State of Punjab, 1995(1) Recent CR 245. Two of the partners of the firm were being prosecuted. There was no sanction to prosecute them. Proceedings qua them were quashed. More recently in the cases K.G. Papu and another v. State of Punjab, 1996(1) Recent CR 795 and Criminal Miscellaneous No. 6876M of 1994, titled Amarjit Singh and others v. State of Punjab, 1997(2) RCR (Crl.) 420 decided on 31.1.1997 the same view prevailed.

In the present case the sanction order has been produced and copy of which is Annexure P3. It reads :

"In this respect I am fully satisfied, the relevant record in respect of M/s. Jagjit and Company, Patti Distt. Amritsar (and sections 3(k)(1), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with rule 27(5) of the Insecticides Rules, 1971, which has been violated by M/s. Jagjit and Co. Patti, produced before me.

Now under the powers conferred by Government under section 31(1) of the Insecticides Act, 1968 I have to act upon. These powers are mentioned in Punjab Government notification No. 15/5/86Agr.2(8) 9264 dated 23.6.1986.

I, Bharpur Singh Virk, Joint Director, Agriculture (ICDP), am sending my consent/report to Sh. Rachhpal Singh, Insecticide Inspector, Patti as the further legal action should be taken against the following :

M/s. Jagjit and Co. Patti, Distt. Amritsar.

M/s. Modern Kheti Store, Hide Market, Amritsar.

M/s. Artee Minerals, 15/7 Mathura Road, Faridabad (Haryana)."

It is apparent from aforesaid that as against petitioner No. 2 Surinder Arun Sinha, there is no sanction to prosecute him. Therefore, qua him the proceedings necessarily have to be quashed. It can proceed only against M/s Artee Minerals. The order sanctioning prosecution in the connected Criminal Misc. No. 5517M of 1993 is identical. There is no sanction to prosecute the partners who are petitioners 2 to 4 in that petition. As against them also necessarily the proceedings have to be quashed.

So far as M/s Evergreen Chemical Enterprises the partnership concern is concerned, the contention of the petitioners'' counsel was that as against it the proceedings must be quashed because the complaint was filed just before the shelf life was to expire. By the time the petitioners were served, the shelf life had expired. A valuable right was lost of the petitioners. In this regard reference to Section 24 of the Act becomes necessary which reads :

"24. Report of Insecticide Analyst. (1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under subsection (6) of Section 22, shall, within a period of sixty days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form.

(2) The Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample.

(3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twentyeight days of the receipt of a copy of the report notified in writing the Insecticide Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.

(4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under subsection (3) notified his intention of adducing evidence in controversion of the Insecticide Analyst''s report, the Court may, of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the magistrate under sub section (6) of section 22 to be sent for test or analysis to the said laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of, the Director of the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein."

Perusal of the above said provision would reveal that there are two rights available with the concerned person. He may request after notice for the second sample to be tested or may request the Court for the said sample to be sent for reanalysis to the Central Insecticides Laboratory. This is a valuable right and a reminder that complaints should be filed at the earliest. In the case of Ravi Kant v. State of Punjab, 1996(3) Recent CR 714 the complaint was filed after the expiry of the shelf life. The proceedings were quashed because a valuable right of the said accused/petitioner had been lost. The Supreme Court had also the occasion to observe in this direction in the case State of Punjab v. National Organic Chemical Industries Ltd., 1996(10) JT SC 480. Stress was laid that there are two rights available with the said accused and he can insist that the second sample be tested from the Central Insecticides Laboratory. The second option can be exercised after the complaint has been filed in Court. The Supreme Court held :

"At that stage, two options are opens to the accused. The accused is entitled to have one copy of the sample entrusted to him to have it notified to the Court for proving to be contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the Court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given. That such certificate by the Director of the CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under subsection (3) of Section 24. The other option is, after the complaint is laid in the Court, the copy of the sample that is lodged with the Court by the Insecticide Inspector, would be requested to be sent by the Court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, consent and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by this Court."

In the present case of M/s Evergreen Chemical Enterprises, by the time the petitioner company was served, the shelf life had expired. A valuable right was deprived of the said petitioner. Therefore, the proceedings necessarily has to be quashed as a whole in Criminal Miscellaneous No. 5517M of 1993.

For these reasons, Criminal Misc. No. 5517M of 1993 is allowed and the proceedings against the petitioners are quashed but Criminal Misc. No. 9454M of 1993 is partly allowed and the proceedings are quashed against petitioner No. 2 Surinder Arun Sinha. It can, however, continue against M/s Artee Minerals.