Delhi Agriculture Store, Lohian Khas vs State of Punjab

K.S. Kumaran, J.

The State of Punjab through the Insecticide Inspector concerned filed a complaint against the petitioners and others under Sections 3(k)(i), 17, 18 and 33 read with Section 29(i)(a) of the Insecticides Act, 1968, before the Chief Judicial Magistrate, Jalandhar on 16.5.1994. The learned Chief Judicial Magistrate by his order dated 21.12.1994 summoned the accused for 27.4.1995. The petitioners have approached this Court under Section 482, Cr.P.C., for quashing the complaint Annexure P1, summoning order Annexure P2 and all consequential proceedings arising therefrom insofar as they relate to the petitioners herein.

Ist petitioner is a partnership firm while petitioners 2 and 3 are its partners. According to the complaint, the petitioners are dealing in pesticides/insecticides under a valid licence and that the Insecticide Inspector inspected the shop of the petitioners on 5.1.1993 and selected three tins one litre each of 2.4D, 34% Ethylester.

Out of the three, one portion was despatched to the Senior Analyst, State Insecticide Testing Laboratory, Amritsar, and the test report dated 25.1.1993 showed that the sample did not conform to the IS specifications in respect of its active ingredient contents. According to the complaint, Ist petitioner firm was found selling substandard insecticides.

The petitioners contend that they sell insecticides and pesticides in the same packing condition as by the manufacturing company and that the sample was drawn from out of the original packed seal and the petitioners did not tamper with the seal of the packet of the insecticide. According to the petitioners, there is no allegation against them that they did not store these insecticides properly and had tampered with the original packing and in the absence of such allegations no case is made out against the petitioners.

The State of Punjab filed a reply alleging that the sample taken from the first petitioner was found misbranded and that even on reanalysis, the Central Insecticide Laboratory, Faridabad found the sample misbranded. The allegation in paragraph 2 of the petition that the petitioners sell insecticide and pesticide in the same packing condition as by the manufacturing company has been admitted by the respondent in its reply. The further allegation in paragraph 3 of the petition that the sample was drawn by the respondent out of the original packed seal and the petitioners did not tamper with the seal of the packing has not been specifically disputed in para 3 of the reply. Similar allegation in para 9(i) of the petition has also not been denied in the reply by the respondent.

In these circumstances, we have to consider whether the complaint and the consequential proceedings can be sustained.

I have heard the counsel for both the sides and also perused the record.

The learned counsel for the petitioners contends that in view of the fact that it is not disputed by the respondent that the petitioners are selling insecticides in the same packing condition as supplied by the manufacturing company and that they had not tampered with the same, and also in view of the fact that there is no allegation against the petitioners that they did not store these insecticides properly or that they had tampered with the original packing condition, the petitioners are entitled to the protection of Section 30(3) of the Insecticides Act whereunder the retailers selling the insecticide in the original packed and sealed condition as were sent by the manufacturer are protected against prosecution. In support of his contention learned counsel for the petitioners relied upon the decision of this Court in Amar Khad Store v. State of Punjab, 1996(3) RCR 140. That was case where the accused got insecticides from authorised manufacturers in sealed tin containers and were selling the same in the same condition. The samples were taken out from such containers and there was no proof otherwise with the prosecution that the petitioners misbranded insecticides although the samples were found misbranded. It was held that the accused cannot be held liable for the misbranding as the accused could not know with reasonable diligence and care that the insecticide contravened the provisions of the Act in any manner. Therefore, the proceedings against the accused were quashed.

The learned counsel for the petitioners relied upon another decision of this Court in M/s K.K. Traders v. State of Punjab, 1996(2) RCR 6. That was a case where the sample of insecticide was taken from a sealed container, which fact was not questioned and, therefore, the complaint against the accused was quashed.

The learned counsel for the State, of course, contended that under Section 30(3) of the Insecticide Act the burden is upon the petitioners to show that they had stored the insecticide properly and not tampered with it in any manner. But as the learned counsel for the petitioners points out in Amar Khad Store''s case (supra) such a contention appears to have been put forward and this Court relied upon the decision of the Apex Court in 1992 CCR 768 (SC) wherein it was held that once the contention of the dealer that it was sealed tin intact, has been found the burden which lay on him under provisions of subsection (3) had been satisfactorily discharged, and held that the petitioners in that case cannot be held to have committed any offence once it is found that the petitioners had sold the insecticide in sealed containers and samples had been taken from such containers, in the absence of any proof otherwise that the petitioners misbranded the insecticide.

Therefore, in these circumstances where it is clear that the insecticides in question were being sold by the petitioners herein in the same sealed and packed condition as supplied by the manufacturer and when there is no allegation that the petitioners had any information about misbranding of the insecticides contained in sealed tins as supplied by the manufacturer, the burden which lay upon them under subsection (3) of Section 30 of the Insecticides Act must be held to have been discharged. In this case there is also no allegation that the insecticides were not stored properly or that they were tampered with by the petitioners. Therefore, the proceedings against the petitioners cannot be allowed to continue.

Resultantly, this petition is allowed quashing the complaint, the summoning order and consequential proceedings in so far as they relate to the petitioners herein.