Hardit Singh vs Union of India

K.K. Srivastava, J.

The petitioners, Hardit Singh, Proprietor M/s Sandhu Khetisewa Centre, Manav Chowk, Ambala City and the said firm have prayed for quashing the impugned complaint (copy Annexure P1), filed under Insecticides Act, 1968 read with Rules, 1971 and the order of summoning (copy Annexure P2) as also the consequential proceedings arising therefrom.

The brief facts leading to the filing of this petition are as under :

The Insecticide Inspector drew a sample of the Insecticide from the shop premises of the petitioners, out of the original sealed and packed container of 5 kilograms which on analysis at the Central Insecticides Testing Laboratory was found misbranded. It has been urged that the Insecticide in question was properly kept at the shop premises of the petitioner in the same condition in which it had been supplied by the manufacturers, M/s Unikil Pesticides Pvt. Ltd., Vidisha. It has been contended that the petitioners are not liable if the sample had been found misbranded due to the manufacturing defect.

Notice was issued to the respondent, who put in appearance through Shri C.M. Sharma, Advocate. However, no written statement to the petition was filed.

I have heard learned counsel for the petitioners and the learned counsel for the respondent.

Shri Rakesh Verma, learned counsel appearing for the petitioners, submitted that the Insecticides Inspector drew a sample of the insecticide in question from the shop premises of the petitioners from the original sealed packed container of five kilograms, which had been supplied by the aforesaid manufacturers. According to him, the petitioners were not aware of the said insecticide being misbranded and were in no way responsible for the insecticide in question being rendered misbranded. In support of his contention, learned counsel for the petitioners placed reliance on the decision in Amar Khad Store v. State of Punjab, 1996(3) Recent Criminal Reports 140 , wherein a learned Single Judge of this Court (M.L. Kaul, J.), referred to the decision of the Apex Court in M/s Kishan Beej Bhandar v. Chief Agricultural Officer and another, 1992(1) C.C.R. 768 (SC), wherein it was held :

"We are inclined to accept the submission and take the view that whether it is prosecution or contravention leading to cancellation, subsection (3) applies. In this 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 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 concerning the question of cancellation of licence and, therefore, his licence should not have been cancelled."

Following the decision of the Apex Court, the learned Single Judge held in para 11 of the judgment as under :

"Thus from the said case law laid down by the Apex Court, it is found and established that once the petitioners have sold the insecticides in the sealed containers and the samples have been taken out from such containers and there is no proof otherwise with the prosecution that the petitioners misbranded the insecticides, the petitioners cannot be held to have committed any offence within the provisions of the Act."

In the aforesaid case of Amar Khad Store, the petitioners were the dealers in insecticides. The learned Single Judge also relied on the decision of a Single Bench of this Court reported in 1992(1) Recent Criminal Reports 613 and observed as under :

"In this regard reference has also been made by Mr. Chopra on the authority of the Single Bench of this Court reported as 1992(1) Recent Criminal Reports 613. In that case the petitioner had acquired the insecticide from a duly licensed manufacturer i.e. Marfed Agro Chemicals, S.A.S. Nagar, Mohali. The sample while it remained in possession of the petitioner was properly stored and remained in the same state as when he acquired it. There were no allegation in the complaint that the sample was not properly stored or it was not found in the same state as when it was acquired. It was, therefore, held that as the sample was purchased from a licensed manufacturer, the petitioner could not know with reasonable diligence that the insecticide in any way contravened any provision of the Act."

In another case M/s Jandu Mal Des Raj v. State of Haryana, 1996(3) Recent Law Reports 736, a learned Single Judge of this Court (M.L. Singhal, J.) held in para 12 as under :

"In view of the provisions of Section 30(3) of the Insecticides Act, dealer could have been prosecuted when the dealer supplied insecticides to the Insecticides Inspector in the same condition in which it has been purchased by him from the manufacturer. Section 30(3) of the Insecticides Act reads as follows :

"A person not being as importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for 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 as when he acquired it."

In M/s Delhi Agriculture Store, Lohian Khas v. State of Punjab, 1997(1) Recent Criminal Reports 42 , a learned Single Judge of this Court (K.S. Kumaran, J.) took the aforesaid view and held :

"......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."

In M/s Dhamija Sales Corporation v. State of Punjab, 1997(4) Recent Criminal Reports 179 , another learned Single Judge of this Court (Dr. Sarojnei Saksena, J.) while placing reliance on the decision in M/s Kishan Beej Bhandar''s case (supra), held as under :

"In this case also in the complaint there is no allegation that petitioner 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 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 had 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 subsection (3) of Section 30 of the Act."

In M/s Wadhawa Beej Bhandar v. State of Haryana, 1998(1) Recent Criminal Reports 15 , a Single Judge of this Court (M.L. Singhal, J.) expressed the same view and held :

"......For misbranding an insecticide dealer/distributor is not liable if it appears on the face of it that dealer/distributor had stored the insecticide in the same condition in which it had taken from the manufacturer in sealed pack, object of criminal prosecution is not to prosecute the so called offender but to prosecute him to vindicate the larger interests of the society."

The same view was further reiterated by the learned Single Judge (M.L. Singhal, J.) in M/s Rajindra Prasad v. State of Haryana, 1998(1) Recent Criminal Reports 163 .

In the instant case, a perusal of the impugned complaint (copy Annexure P1) will go to show that no averments were made against the petitioner accusing them of not storing and keeping the original packed sealed container in a proper condition and that the petitioners knew about the insecticides in question being misbranded. In view of the law lead down in the judgments, referred to above, the petitioners/dealer in the absence of any specific and categorical averment made in the impugned complaint about the insecticide being rendered misbranded due to defective storing and keeping of the same, the dealers would not be held liable for the offence regarding the insecticide being misbranded. After considering the offences allegedly committed by the petitioners alongwith the coaccused, the learned trial Magistrate in the order of summoning, (copy Annexure P2), observed as under :

".....The report dated 3.9.1992 received by the complainant vide letter dated 4.9.1992 reveals that the sample was misbranded. I am satisfied that there are sufficient reasons to summon the accused/respondents No. 1 to 5, the respondent No. 1 being the stockist, respondent No. 2 being the manufacturer and the respondent Nos. 3 and 4 being the Managing Director and the manufacturer of the said misbranded insecticides for alleged violation of Sections 3(k), 17 and 18 of the Insecticides Act, 1968."

The trial Magistrate has, thus, not properly appreciated this aspect of the matter and has summoned the petitioners for trial by holding them, prima facie, liable for the offences under the Insecticides Act.

Resultantly, the petition is allowed and the impugned complaint (copy Annexure P1), summoning order (copy Annexure P2) as also the proceedings consequent thereto are hereby quashed qua the petitioners.