Dhamija Sales Corporation vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution for quashing complaint Annexure P1 and consequent proceedings pending in the Court of Judicial Magistrate I Class, Gidderbaha District Faridkot.

Brief facts are that petitioner is a licensed dealer of insecticides and pesticides. On 29.8.1989 Joginder Singh Boparai, Insecticides Inspector, inspected the premises of the petitioner and took sample of Monocrotophos 36% S.L. from one litre pack and on analysis, sample was found misbranded. Hence, the complaint under Sections 3(k)(i), 17, 18, 29 and 33 of the Insecticides Act, 1968 (in short, the Act) read with rules 27(5) of the Insecticides Rules, 1971 was filed against the petitioner along with its proprietor Shri Raj Kumar and manufacturer of this insecticides, i.e., Punjab Pesticides Industrial Cooperative Society Limited, Chandigarh. Before filing the complaint, the complainant also obtained sanction under Sections 31(1) of the Act from the competent authority.

Petitioner''s contention is two fold. First contention is that since the sample was taken from the sealed tin, petitioner did not know and had no occasion to know even with due diligence that tin contained misbranded insecticides and therefore, being dealer the petitioner is protected under Section 30(3) of the Act. Second contention is that sanction order is not proper. It is on cyclostyled form. It does not contain name, details as to when and who took sample; what was the name of the insecticides and what was the result on analysis; how sample was found misbranded etc.; therefore, it amounts to nonapplication of mind. To support both contentions, learned counsel relied on M/s Kishan Beej Bhandar v. Chief Agricultural Officer and another, 1992(1) CCR 768 (SC) and M/s Kissan Trading Company v. State of Punjab, 1996(1) RCR 132.

Respondents'' learned counsel contended that in the reply complainant has categorically averred that he has no knowledge whether petitioner has stored insecticides in question properly. If the petitioner has obtained any warranty from manufacturer, it is a question of fact which can be proved by the petitioner while taking this plea under Section 30(3) of the Act, but according to him there is no ground to scuttle the prosecution at the initial stage.

After considering rival contentions, in my considered view, petition deserves to be allowed. Petitioner has averred in the petition that it purchased the said insecticide from accused No. 2 manufacturer under a written warranty. The sample was taken from the sealed tin. This fact is admitted by the respondent in its reply. Even in the complaint this fact is mentioned that the sample was taken from a sealed tin. There is no averment in the complaint (Annexure P1) that insecticide in question was not stored properly as per direction of the manufacturer or that the petitioner had knowledge that it was misbranded insecticide.

In M/s Kishan Beej Bhandar''s case (supra) the Apex Court has held :

"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 that 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 subsection (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 subsection (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."

In this case also in the complaint there is no allegation that petitioneraccused knew that insecticide is misbranded or with due diligence he could have known that it is misbranded or that it was not properly stored or that petitioner in connivance with accused No. 2 manufacturer was selling the misbranded insecticides. There is nothing in the complaint to suggest that tins were not properly stored or that same were tampered with in any manner. The contention of the petitioner is that he stored the article properly and it remained in the same state as when he acquired it from the duly licensed manufacturer. Petitioner did not know and could not with due diligence have ascertained that the insecticide in any way contravened any provisions of the Act. In these circumstances, petitioner is protected and is not liable even if the sample was found to be misbranded. The petitioner is not alleged to be the agent of the manufacturer. It is a licensed dealer. I find that the petitioner is entitled to avail protection provided by sub section (3) of Section 30 of the Act.

So far as the second contention is concerned, copy of the sanction order, Annexure P2, indicates that it is a cyclostyled form. It does not contain the details as to who took the sample; what was the insecticide in question and what was the result on analysis. These lacunas clearly show nonapplication of mind.

Provision regarding grant of sanction is mandatory in nature. On these lacunas, in M/s Kissan Trading Company''s case (supra), it was held that sanction was not in accordance with provisions of law and on that basis proceedings were quashed. In this case also, sanction order suffers from the above mentioned lacunas. Complaint cannot proceed on the basis of such lacunous sanction order and is liable to be quashed.

Resultantly, petition is allowed. Complaint, Annexure P1, and all consequent proceedings thereon are hereby quashed qua the petitioner.