Gian Chand vs State of Punjab

Harphul Singh Brar, J.

This is a petition under Section 482, Code of Criminal Procedure, read with Article 227 of the Constitution of India for quashing the complaint Annexure P1, under Sections 3(k)(i), 17, 18 and 33 punishable under Section 29 of the Insecticides Act, 1968, read with rule 27(5) of the Insecticides Rules, 1971 (hereinafter called the Act and the Rules, respectively), as well as the subsequent proceedings arising therefrom.

Brief facts are that the complaint was filed by the State through Shri Jagdeep Singh Brar, Insecticides Inspector, Guruharsahai, in which it was alleged that Messrs Thakur Dass Gauri Shanker, Guruharsahai, Tehsil and District Ferozepur were dealing in insecticides and were holding a licence for the purpose issued by the Licensing Authority, that is, Chief Agricultural Officer, Ferozepur. The Insecticides Inspector, Guruharsahai along with Shri Sushil Kumar, Agriculture Inspector, Shri Pitamber Lal, Beldar in performance of his official duty in exercise of the power conferred upon him by the Act and the Rules visited the shop of Shri Gian Chand partner (petitioner in this case) of Messrs Thakur Dass Gauri Shanker, Guruharsahai, Tehsil and District Ferozepur, on December 13, 1989. Shri Ashok Kumar was present at the time of inspection. On intimation to him in writing that he was an Insecticides Inspector, Guruharsahai, drew the sample of Shivraon 75% of Batch No. 12 manufactured by Shivalik Agro Chemicals of Chandigarh on December 13, 1989. Three sealed packets of Shivraon 75% W.P. each weighing 500 grams of Batch No. 12 were taken for sample and seizure memo was prepared which was signed by Ashok Kumar of Messrs Thakur Das Gauri Shanker, Guruharsahai. These packets were put in ploythene bags. The sample was handed over to Ashok Kumar and receipt was taken in lieu thereof.

One sealed sample was sent to State Insecticide Testing Laboratory, Ludhiana, and the remaining one sample was submitted in the Chief Agricultural Officer''s office, Ferozepur, on December 14, 1989. From the test report, it was found on analysis that the sample did not conform to ISI specifications with respect to its total insopeturon contests, as the sample contained 67.05% instead of 75% Isoproturon and, thus, it was misbranded under Section 3(k)(i) of the Insecticides Act. Consequently, as stated above, the complaint was filed by the Insecticides Inspector against petitioner Gian Chand partner of Messrs Thakur Dass Gauri Shanker, Guruharsahai and one Sunil Bhatia, Sales Manager of Messrs Shivalik Agro Chemicals, Neelam Cinema Complex, Chandigarh.

The petitioner has alleged that his Firm was granted a licence under the Act by Chief Agricultural Officer for the purpose of selling different types of insecticides and the Insecticides Inspector took a sample of Shivron on December 13, 1989 from sealed containers of 500 grams each. When the sample was taken, the seal of 500 grams tin was intact and it was lying in the same state as purchased by him from the manufacturer. There is nothing on the record to show that the seal was ever tampered with. The petitioner being licensee is protected under subsection (3) of Section 30 of the Insecticides Act, as the insecticides while in possession of the petitioner was properly stored and remained in the same state as and when the petitioner acquired it. The petitioner acquired the insecticides from a duly licensed manufacturer and could not have ascertained after exercising due and reasonable care that the said insecticides in any way contravened any provisions of the Act; rather the manufacturer informed the petitioner that the present insecticide was according to ISI specifications.

It is further averred in the petition that the Insecticides Inspector was not authorised to launch complaint against the petitioner as no proper sanction was obtained before filing of the complaint against him. The sanctioning authority has only passed a stereotype order without applying his mind. No sanction for launching the prosecution against the petitioner had been granted.

Reply has been filed by way of affidavit of Jagdip Singh, Insecticides Inspector, Ferozepur, on behalf of the respondentState.

In the reply, the factual position of taking the sample has been admitted. About the sanction which was required to be taken under Section 31 of the Act, it has been stated that Insecticides Inspector was duly authorised by the competent authority to lunch prosecution against the petitioner for the violation of provisions of the Insecticides Act by selling misbranded insecticides. It is then stated that it was wrong to allege that the sanctioning Authority gave sanction without application of mind. In fact, the same was issued after applying full mind of the facts of the case.

I have heard the learned counsel for both the sides and have gone through the record of the case with their assistance. The learned counsel for the petitioner has raised many contentions in order to get the complaint quashed, but I do not think it necessary to go into all those contentions as the petition succeeds only on the point that proper sanction which is pre requisite, was not obtained by the concerned authority before launching the prosecution against the petitioner. For facility of reference, Section 31(1) of the Act which is mandatory and requires the written consent of the State Government or a person authorised in this behalf by the State Government, is reproduced as under:

"31. Cognizance and trial of offence (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorised in this behalf by the State Government."

The written consent/sanction as is alleged to have been given by the Sanctioning Authority under Section 31(1) of the Insecticides Act, 1968 has been attached with the petition as Annexure P3 which is reproduced below :

"WRITTEN CONSENT/SANCTION UNDER SECTION 31(1) of the Insecticides Act, 1968.

Whereas I am fully satisfied with the records produced before me of M/s Thakur Dass Gauri Shanker, Rishi Chowk, Guruharsahai, District Ferozepur etc. and the violation of Sections 3k(i), 17, 18, 29 and 33 of the Insecticides Act read with Rule 27(5) of the Insecticides Rules, 1971 made by M/s Thakur Dass Gauri Shanker, Rishi Chowk, Guruharsahai etc.

Now, I propose to take action in exercise of the powers conferred upon me under Section 31(1) of the Insecticides Act, 1968, the entry of which has been made in the Punjab Government notification No. 15/6/86Agr2(8) 9264 dated 23.6.1986.

I, Bharpur Singh Virk, Joint Director Agriculture (ICDP) hereby give my written consent/sanction to Shri Jagdeep Singh Insecticides Inspector Guruharsahai that he should file case for taking further legal action against the following.

M/s Thakur Dass, Gauri Shanker, Rishi Chowk, Guruharsahai (Dealer).

M/s Shivalik Agro Chemicals, Neelam Cinema Complex, Chandigarh.

(Manufacturer)

Sd/

Joint Director Agricultural (ICDP)

(Exercising the powers of Joint Director Agricultural (ICDP) under Section 31(1) of Insecticides Act, 1968).

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It is stated by the Joint Director Agricultural (ICDP) (Exercising the powers of Joint Director Agricultural (ICDP) under Section 31(1) of Insecticides Act, 1968) that he was satisfied that violation of Sections 3(k)(i), 17, 18, 29 and 33 of the Act read with rule 27(5) of the Rules was made by Messrs Thakur Dass Gauri Shanker, Rishi Chowk, Guruharsahai etc. It has further been specifically stated by him in the written consent/sanction as under :

"I, Bharpur Singh Virk, Joint Director Agricultural (ICDP) hereby give my written consent/sanction to Shri Jagdeep Singh insecticides Inspector, Guruharsahai that he should file case for taking further legal action against the following:

Messrs Thakur Dass Gauri Shanker, Rishi Chowk, Guruharsahai (Dealer).

Messrs Shivalik Agro Chemicals, Neelam Cinema Complex, Chandigarh (Manufacturer).

On the other hand, the complaint filed by the Insecticides Inspector, Guruharsahai on the basis of this written consent/sanction shows that the complaint has not been filed against Messrs Thakur Dass Gauri Shanker, Rishi Chowk, Guruharsahai, but against petitioner Gian Chand son of Gauri Shanker, partner of Firm Messrs Thakur Dass Gauri Shanker Guruharsahai, District Ferozepur and another, and concededly no written consent or sanction was obtained before the launching of prosecution against the petitioner nor any was even produced at the time of the arguments by the State counsel to proceed against petitioner Gian Chand.

Nothing has been mentioned even in the complaint that Gian Chand petitioner at the time of the offence committed by Messrs Thakur Dass Gauri Shanker, was incharge of, or was responsible to the said firm for the conduct of its business.

In this view of the matter, to proceed against petitioner Gian Chand on the basis of the complaint aforesaid, shall certainly be an abuse of the process of the Court. I, therefore, quash the complaint, Annexure P1, and further proceedings, if any.

The petition is, thus, allowed.

I cannot refrain from observing that many cases of the State fail due to the nonobservance of the mandatory provisions of the Act. The sanctioning Authority at the time of launching of the prosecution should abide by the mandatory provisions of law and which is its bounded duty, so that the real culprits, if any, are not allowed to go scot free, only due to their negligence and nonobservance of the provisions of the Act and the Rules. If necessary, the Government may provide special training to such officers/ officials who have to sanction the prosecution and who have further to file complaints of such like nature in a court of law. If it seems to the Authority concerned that it is a deliberate negligence on the part of the sanctioning Authority or the Authority launching the prosecution then necessary action should be taken against the delinquent officer/official, so that the State cases do not fail merely on account of the lapse on their part.