Daulat Ram Kamra vs State of Punjab

S. S. Grewal, J.

This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) relates to the quashment of complaint under Sections 3(k)(i), 17, 18, 33 read with Section 29 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) and consequent proceedings taken thereunder.

In brief. facts relevant for the disposal of the petition, as emerge, from complaint, Annexure P/I are that Shri Charan Singh Bhullar, Insecticide Inspector, filed the aforesaid complaint against present petitioner who is proprietor of M/s Daulat Ram Kamra and Sons (hereinafter referred to as the dealer) and Shri Trilok Singh proprietor of M/s United Pesticides, Ambala (hereinafter referred to as the Manufacturer), on the allegations that on 25.8.87 Shri Wasawa Ram, Insecticides Inspector Fazilka along with Shri Jarnail Singh, A.S.I. Fazilka went to the shop of dealer at Fazilka, and Harbans Lal son of Shri Daulat Ram Kamra proprietor was present in the shop. The Insecticide Inspector after giving intimation in writing, took sample of United Mono (monocrotophos 36% SL) of Batch No. 6 manufactured on 25.8.87. Three sealed containers of United Mono (Monocrotophos 36% SL) each measuring one litre were taken as sample vide seizure memo. Thereafter, the containers were duly sealed. The three containers were put in polythene bags which were duly sealed. Cost of the sample was also paid to the dealer at that time. One sealed sample was handed over to Harbans Lal aforesaid and the second one was sent to Pesticides Testing Laboratory, Ludhiana on the following day, whereas the third was kept in the office of Insecticide Inspector on 26.8.87. As per report of the Analyst, it was found that the said sample did not conform to the relevant ISI specifications in the active ingredient, as it contained only 16.71% of such ingredient, instead of 36% SL. According to the Insecticides Inspector the sample of Insecticide taken in this case was misbranded as contemplated under section 3(k)(i) of the Act. It was further pleaded that the copy of the analysis was also delivered to the dealer, vide office letter No. 20383 dated 21.10 87. In view of the report of Analyst, it was further alleged that the insecticides supplied by manufacturer to the dealer was misbranded; that the manufacturer and the dealer had jointly committed an offence punishable under Sections 17. 18, 3(k)(i) and 33 punishable under Section 29 or the Act.

The learned counsel for the parties were heard.

It was frankly conceded by either side that for the purpose of quashment only the allegations set out in the complaint have to be considered for deciding as to whether such allegations constitute, or,, spell out any offence, and, that resort to criminal proceedings would, in the circumstances of the present case amount to an abuse of the process of the court or not, in view of the authorities of the apex Court in State of Bihar v. Murad Ali Khan and others, AIR 1989 Supreme Court 1, and Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983(1) RCR(Crl.) 73 (SC) : AIR 1983 SC 67.

On behalf of the petitioner it was mainly contended that the petitioner had obtained a valid licence to carry on the trade in sale of insecticides/pesticides, and, had purchased the same from a duly authorised manufacture/distributors/dealers, and, neither he knew, nor, could with reasonable diligence ascertain, that, the said insecticides/pesticides in any way contravened any of the provisions of the Act, and, that the insecticides/pesticides in question, while in possession of the petitioner, and, his coaccused, was properly stored and remained in the same state, as and when they had acquired the same.

Reference in this regard was made to the provisions of Section 30 subsection (3) of the Act. For the sake of convenience the aforesaid sub section is reproduced as under :

"30. xxx XX x xxx

xxx xxx Xxx

(2) Xxx xxx xxx

xxx xxx xxx

(3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves :

a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof;

b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and

c) that the insecticide, while in his possession, was properly stored and remained in the same state.

Reference in this context was made to Section 33 of the Act, which corresponds to Section 19(3) of the Drugs and Cosmetics Act, 1940. Reliance in this respect was also placed on a Single Bench authority of this Court in Mohan Lal v. State and others, 1989(1) Recent Criminal Reports 650 , wherein, relying upon an earlier Single Bench authority of this Court in Madan Lal v. The State of Punjab and others, 1982 All India Prevention of Food Adulteration Journal 40, the proceedings against the licencees, who, had acquired the insecticides in question from the duly licensed manufacturers/dealers thereof, and, had properly stored the same in the same state as and when they had acquired them, and, neither knew, nor, could with reasonable diligence ascertain that the insecticides contravened any provisions of the Act, were ordered to be quashed.

The afore cited authorities would be applicable only in case the accused is held to be a mere licencee. and, not a dealer.

In para No. 6 of the petition, it is specifically mentioned that the petitioner is a mere retail dealer of the insecticide. and, licence is granted to M/s Daulat Kam Kamra and Sons by the Chief Agricultural Officer, Ferozepore. In para No. 5 of the complaint (Annexure P/1) it is also specifically mentioned that the petitioner is an authorised dealer of M/s United Pesticides, Ambala City. From the allegations referred to above it is quite apparent that the present petitioner is not a mere licencee for storing the insecticide/pesticide in question for sale. It would be for the trial Court to decide as to whether the petitioner is a retail dealer as contended by him in the petition or as to whether he is an authorised dealer of M/S United Pesticides, Ambala City. At any rate, the question whether the petitioner is a wholesale dealer or a retail dealer would not make any material difference inasmuch as the definition of dealer contained. in the Insecticides (Price, Stock Display and Submission of Reports) JUDGMENT 1986, means a person carrying on the business of selling Insecticides, whether wholesale or retail, and, includes an agent of a dealer, whereas the definition of the dealer given in Fertilizer Control JUDGMENT 1985, means., a person carrying on business of selling fertilizers, whether wholesale or retail, and includes a manufacturer and a pool handling agency carrying on such business, or, agent of such person, manufacturer, or, pool handling agency.

It is significant to note that protection under subsection (3) of Section 30 of the Act is given to a person not being an importer, or, a manufacturer of an insecticide, or, his agent for distribution thereof for contravention of any provisions of the Act, if he proves that he fulfils all the three conditions contained in clauses (a), (b) and (c) to subsection (3) of Section 30 of the Act. The case of the petitioner does not fall under clause (a) as he had purchased insecticides from the manufacturer as a dealer. This obviously means that the dealer himself cannot seek protection for the contravention of the provisions of the Act as contemplated under subsection (3) of Section 30 of the Act. I find support on this point from the Single Bench authority of this Court in Dharam Paul vs, The State of Punjab, Criminal Misc. No. 1298M of 1989, decided on 5th October, 1989.

Single Bench authority of this Court in Mohan Lal v. State and others, 1989(1) Recent Criminal Reports 650 relied upon by the learned counsel for the petitioner relates to case where the accused person as a mere licencee and not a dealer had acquired insecticides in question from duly licensed manufacturer/dealer thereof whereas, in the instant case, the allegations against the dealer who had directly obtained misbranded insecticides from the manufacturer and had stored the same for sale. The authority in Mohan Lal''s case (supra) is clearly distinguishable and is not applicable to the facts of the present case. For similar reasons another authority of the Single Bench of this Court in Madan Lal v. The State of Punjab and others, 1982 All India Prevention of Food Adulteration Journal 40, which deals with the case of taking of sample of misbranded and adulterated Dexamethasone tablets from the accused, who was a mere licencee, would not be applicable to the facts and circumstances of the present case and is clearly distinguishable.

The learned counsel for the petitioner further relied upon another Single Bench authority of Andhra Pradesh High Court in M/s Velurl Srivarama Sastry and Sons and others v. The State of Andhra Pradesh, 1981 Andhra Law Times Reports 346, wherein it was observed that accused person who was not an importer, or, manufacturer of insecticides and was only a retail dealer was not liable for contravention of any of the provisions of the Act. A careful perusal of the afore cited authority would indicate that while dealing with the liability of a retail dealer under the Act, significance of presence of word dealer in clause (a) of sub sec. (3) of Sec. 30 of the Act was not at all considered. The said authority too would not in any manner advance the case of the present petitioner.

Mere fact that the present petitioner (a dealer) was not present when the sample of insecticides was taken from the premises, where, the petitioner carries on his business under the name and style of M/s Daulat Ram Kamra and Sons, or that only his son Harbans Lal was present when the sample was taken and the fact that the proceedings against the manufacturer were quashed in Criminal Misc. No. 6039M of 1989 titled as Trilok Singh v. State of Punjab for different reasons recorded therein would not be sufficient to hold at this stage, that, no prima facie case against the present petitioner as alleged in the complaint has been made out, or, that the impugned complaint, Annexure P/I or consequent proceedings taken thereunder against the present petitioner amount to abuse of the process of the Court.

For the foregoing reasons, complaint Annexure P/I or the consequent proceedings taken thereunder against the present petitioner are not liable to be quashed. This petition is accordingly dismissed. However, it is clarified that nothing herein observed for the disposal of this petition shall in any manner be construed to affect the rights of the parties on merits. The trial Court is directed to proceed and dispose of the case against the present petitioner expeditiously. Copy of the order be sent to the trial Court forthwith.