B.S.Agnihotri vs Jagdeep Singh Brar

M.L. Koul, J. (Oral)

Heard learned counsel for the parties. The petitioners B.S. Agnihotri and Mewa Singh are seeking the quashing of criminal proceedings pending against them before the Chief Judicial Magistrate, Ferozepur, filed by Jagdeep Singh, Insecticide Inspector, Guruharsahai, Punjab, for instituting the prosecution against the petitioners under Sections 3(k), 17, 18 and 33 read with Section 29 of the Insecticides Act, 1968, for which the said Inspector has been authorised by the Joint Director of Agriculture, while exercising the powers conferred upon him under Section 31 of the Insecticide Act, 1968, to lodge a prosecution against M/s Zimidara Pesticides, Guruharsahai and M/s Searle India Limited, Bombay, Manufacturer.

According to the prosecution, the petitioner No. 1 at the relevant time was the Marketing Manager of M/s. Searle India Limited, which is a public limited company, and is manufacturing among other things pesticides including the pesticide known as Trapp 50%. In execution of that power the said Inspector visited the shop of M/s Zimidara Pesticides, Guruharsahai District Ferozepur on 28.5.1990 where one Daljit Kumar was found present at the time of visit. On intimation to him in writing, the said Inspector drew the sample to Trapp 50% batch No. 114 manufactured by M/s Searle India Limited. Three sealed one litre tin packing to Trapp 50% EC of batch No. 114 were taken as samples and seizure memo was prepared upon which the signatures of Daljit Kumar, proprietor of M/s Zimidara Pesticides, Guruharsahai were obtained. These tins were put in polythene bags separately and the memo was also put therein. The samples were sealed. The cost of the samples was paid to the dealer. One sample packet was handed over to the proprietor of the firm M/s Zimidara Pesticides, Guruharsahai and receipt was taken in lieu of the sample. The samples were taken according to the procedure prescribed in the Insecticide Act, 1968. One sample so taken was sent to the State Insecticide Testing Laboratory, Ludhiana and the other sample was deposited in the office of Chief Agricultural Officer, Ferozepur. On receipt of report of the analyst, it was found that the sample does not conform to the specification with regard to its total relevant contents, as the sample contained 47.58% ingredients against 50% active ingredient. Thus the sample was misbranded under Section 3K(i) of the Insecticide Act.

A copy of the report of the Analyst was delivered to the dealer on 5.7.1990. As the insecticide was found misbranded therefore, both M/s Zimidara Pesticides, Guruharsahai and M/s Searle India Limited, Bombay, were declared as accused in the matter. According to the prosecution the misbranded Butachlor (Trapp 50% EC) was supplied to M/s Zimidara Pesticides by M/s Searle India Limited, Bombay and they both were in league to sell the misbranded Butachlor 50% and thus committed an offence punishable under Sections 17, 18, 3K(i) and 33 of the Insecticide Act, 1968 by selling, storing and manufacturing the misbranded Butachlor.

Heard learned counsel for the parties, also bestowed my thoughtful consideration over the record on the file.

Firstly, one does not understand as to how B.S. Agnihotri and Mewa Singh, Regional Manager have been named as accused in the matter for it nowhere indicated that they participated in supply of misbranded butachlor 50% to the dealer. It is clear that when the samples were taken by the Inspector from the shop of the dealer, the seal of the tin was intact and in no manner there was any proof available with him that the dealer was selling the insecticide, after opening the tin, to the customers and there was every possibility of the material being misbranded while being sold to the customers.

It is the command of the law that before anybody could be declared accused in the matter as contained in Section 31 of the Insecticide Act, it is essential that a notice in writing is given to such person who was alleged to have misbranded the pesticides. If it was the corporation or any employee working as the Administrative officer under the firm he was individually to be given notice with regard to the report of the analyst providing him a chance to get the second sample analysed from any other analyst so as to confirm as to whether the pesticide was misbranded or not. There are bunch of rulings on the subject wherein it has been held that Section 31 of the Insecticide Act relates to the taking of cognizance and trial of the offence under the Act. Subsection (1) thereof provides as under:

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

This provision mandates hat no prosecution for an offence under the Act can be instituted except by or with the written consent of the State Government or a person authorised in this behalf by the State Government. In other words, the sanction of the State Government or authorised officer is sinequanon for launching prosecution against any individual or corporation. A bare reading of this provision along with Section 33 of the Act, makes it clear that the prosecution is to be launched against the company or the person in charge of the company or an officer of the company, sanction to prosecute is the condition precedent for each of them. This view is contained in Vinod Goyal v. State of Punjab, 1996(2) Recent Criminal Reports 336 .

There are numerous rulings in this regard where different Benches of this Court have held that sanction for launching of the prosecution is the condition precedent and within the purview of Section 33 of the Act, it is mandatory upon the authority who wants to launch the prosecution to give a notice to the person who is alleged to have committed the crime. If the person against whom the prosecution is launched is the company and the prosecution is lodged against an officer, the prosecution should be sought against the officer in person and unless the notice as required under the Act is not given to him, the prosecution shall fail.

From the bare perusal of the present complaint, it appears that the petitioners have not been in any way linked with the commission of the crime. Neither they have misbranded the pesticides nor they have been given a notice to explain as to whether they intended to get the second sample analysed. Furthermore no notice for launching of the prosecution has been given to them.

In view of the above discussion, the prosecution fails and the proceedings instituted by the complainant i.e. Insecticide Inspector before the Chief Judicial Magistrate, Ferozepur, are hereby quashed. A copy of this order be sent to the Court concerned immediately, by the Registry.