Jai Chemicals vs State of Punjab

P.K. Jain, J.

M/s Jai Chemicals through Ashok Kumar Mangla has filed this petition under section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing the complaintAnnexure P1 filed in the Court of Judicial Magistrate I Class, Moga, for the offences under Sections 3(k)(i), 17, 18, 29 and 33 of the Insecticides Act read with Rule 27(5) of Insecticides Rules, 1971 and all subsequent proceedings including the summoning order.

The facts in brief are that the petitioner No. 1Firm is carrying on the business of formulations of insecticides/pesticides at Faridabad. On 29.10.1992, Shri Pritam Singh, Insecticides Inspector, visited the shop of M/s. Sidhu Kheti Sewa Centre, Badhni Kalan, Tehsil Moga, and purchased a sample of Anilefos 30% EC (JAIFOS "A30 cc") having batch No. FD.10 consisting of three half litre packs of plastic bottles. The manufacturing date mentioned on the plastic bottles was April 92 and the expiry date March 1994. One sealed plastic bottle of the sample was sent to the Regional Testing Laboratory, Chandigarh, on 6.11.1992, which was analysed and vide report Annexure P2 it was reported that the sample did not conform to the IS specification in its active ingredient as per requirement as it contained 27.2% instead of 30% of active ingredient. A showcause notice along with a copy of the report of analysis is alleged to have been sent to the dealer M/s Sidhu Kheti Sewa Centre, Badhni Kalan, from whom the sample was purchased and also to its manufacturer M/s. Jai Chemicalspetitioner No. 1. After obtaining the necessary sanctionAnnexure P3 of the authority concerned, the complaintExhibit P1 was filed on 12.6.1994 in the Court of Judicial Magistrate I Class, Moga, against the said dealer through its proprietor and the present petitioner through its authorised signatoryShri A.K. Mangla. The Judicial Magistrate, by order dated 12.6.1994, summoned the accused persons for 4.7.1994.

Petitioner No. 1the manufacturer and Ashok Kumar Mangla have filed this petition for quashing the aforesaid complaintAnnexure P.1 on the grounds that there is no proper and valid sanction for launching prosecution; that the copy of the report of the Analyst was never sent to the petitioners and as such their valuable right to defend themselves has been lost; that the complaint has been filed after the expiry date of the insecticide which is fatal to the prosecution; that there is nothing in the complaint to show as to how petitioner No. 2 is liable for any offence; that the sample was not taken in accordance with the statutory provisions and that the Judicial Magistrate, while passing the summoning over, did not apply his judicial mind.

Notice of motion was given to the respondent. In reply, all the allegations made by the petitioners have been denied. It is stated that the sample was taken in accordance with the statutory provisions; that showcause notice along with the copy of the report of the analyst was sent to the dealer as well as petitioner No.1the manufacturer but no reply was received challenging the report of the Public Analyst; that proper sanction was obtained from the competent authority before launching the present prosecution and that the learned Magistrate took cognizance of the offence after applying his judicial mind. It is further stated that since the case is pending trial in the Court of the Judicial Magistrate, the petitioners are not entitled to invoke the inherent jurisdiction of this Court under Section 482 of the Code or the extraordinary jurisdiction under Article 227 of the Constitution of India. I have heard the learned counsel for the parties and have gone through the record.

It is well settled now by a long course of decisions of the apex Court that for the purpose of exercising its powers under Section 482 of the Cr.P.C. or its extraordinary jurisdiction under Articles 226/227 of the Constitution of India to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. These powers cannot be exercised to stifle a legitimate prosecution. In a very well known judgment rendered by the apex Court in a case reported as The Janata Dal v. H.S. Chowdhary and others, AIR 1993 Supreme Court 892, their Lordships sounded the following note of caution in such type of cases :

"This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material."

It was clarified by their Lordships that the inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to the whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.

In another case reported as State of Bihar and another etc. etc. v. Shri P.P. Sharma and another, A.I.R. 1991 Supreme Court 1260, at page 1285, their Lordships observed that the commission of offence cannot be decided on affidavit evidence, nor the High Court can take short course in annihilating the stillborn prosecution by going into the merits on the plea of proof of prima facie case and advert to those facts and give findings on merits. It was further clarified that grossest error of law would be committed by the High Court in making a pretrial of a criminal case in exercising its extraordinary jurisdiction under Article 226. Finally, in another landmark judgment of the apex Court rendered in State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 Supreme Court 604, their Lordships listed certain categories by way of illustration wherein the High Court can exercise its power under Section 482 of the Code or under Article 226 of the Constitution of India to quash an FIR or a complaint. It was expressly pointed out by their Lordships in the said illustrations that the FIR or the complaint can be quashed only when the allegations made in the first information report or the complaint along with other materials therewith do not prima facie constitute an offence or make out a case against the accused, or where the allegations made in the FIR or the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

Turning to the case in hand it is evident that all the pleas raised in the present petition by the petitioners are not pure questions of law but are either questions of facts or mixed questions of facts and law. All these pleas have been controverted by the prosecution in its reply. For instance it is alleged in the petition that there is no proper sanction for prosecution. The reply given by the State is that the sanction to prosecute was given by a competent authority after applying its judicial mind to the entire facts of the case. From a bare reading of Annexure P.3, prima facie it finds mention that the competent authority was satisfied from the perusal of the relevant record placed before him regarding the commission of the offence by the dealer and the present petitioners. Therefore, this question can only be decided after taking evidence of the complainant by the trial Court and not on affidavits in this Court. Similarly, the petitioners have denied the receipt of the show cause notice and the copy of the analyst''s report but in reply it is specifically mentioned that such a notice along with the copy of the report of the analyst was delivered to the manufacturer i.e. the petitioners but no reply was received nor the petitioners challenged the correctness thereof. State has placed reliance upon a judgment of this Court rendered in Baldev Krishan and ors. v. State of Punjab through the Insecticides Inspector, 1992(1) Recent Criminal Report 637 . Further, it has been stated by the petitioners that the sample has not been taken in accordance with the statutory provisions. This fact has also been denied and can only be decided after taking evidence of the parties at the trial. The plea of the petitioners that the complaint against petitioner No. 2 does not disclose any offence alleged to have been committed by him. prima facie, it may be stated that petitioner No. 1 has been sued through Shri A.K. Mangla, who is its authorised signatory under the Act and the Rules mentioned above. Thus, all the pleas sought to be raised in the present petition by the petitioners can only be decided by taking evidence of the parties and cannot be decided merely on affidavits produced or filed by the parties. From a bare perusal of the complaint and the accompanying documents, the same does constitute the offences alleged to have been committed by the petitioners as well as the dealer from whom the sample was purchased. I do not find any infirmity or illegality either in the complaint or the accompanying documents or the summoning order to exercise jurisdiction of this Court either under Section 482 of the Cr.P.C. or under Articles 226/227 of the Constitution of India.

For the reasons mentioned above, I do not find any merit in this petition and the same is hereby rejected. The stay of proceedings granted by order dated February 3, 1995 stands vacated. The parties through their counsel are directed to appear before the trial Court at Moga on 5.10.1995.