Kheti Sewa Centre vs State of Punjab through Insecticide Inspector

R.L. Anand, J.

M/s Kheti Sewa Centre Bajewala, Mansa, has filed the present petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing of complaint Annexure P.8 under Sections 3(k)(i), 17, 18, 29 and 33 of the Insecticides Rules, 1971 and the case set up in short by the petitioner is that he being a dealer, and that sample was taken from a sealed container; in these circumstances, he cannot be prosecuted in a complaint much less when the Appellate Authority vide Annexure P.7 had already restored his licence. The case of the petitioner is being defeated by respondentauthorities firstly by placing reliance on 1990(2) RCR 442 Daulat Ram Kamra v. The State of Punjab and secondly that disputed questions of fact cannot be investigated and gone into by this Court in the proceedings under Section 482 Cr.P.C.

Before I deal further into the matter, it will be useful for me to first refer to the complaint itself. In para No. 4 of the said complaint it had been stated that the shop of the petitioner was inspected by Amarjit Lal Insecticides Inspector, Mansa on 29.9.1995 in the presence of Jagtar Singh and Banarsi Dass Prop. of the firm. At that time Banarsi Dass Proprietor of the firm and his representative Pawan Kumar were present and it was found that the firm had not displayed the licence in a prominent place in the part of the premises open to the public; that Insecticides were not properly stored; that the firm had not displayed the stock and price list of insecticides; that the sample was not properly lebelled. However, it has been mentioned that 56 litres of Quinalphos 25 per cent E.C. of 4 litre bearing batch No. 403, manufacturing date May 95 and expiry date April, 1996, manufactured by respondent No. 3 were lying with the firm respondent No. 1 at the time of inspection i.e. 29.9.1995 as shown in form XX. One container of the capacity of four litres was selected. Its manufacturing date was May, 1995 and expiry date was April, 1996. Its contents were shaken and thereafter were filled in three empty containers of 250 Ml.

The above averments indicate that the samples were taken from the sealed container. Now the short point which requires consideration is that once a sample had been taken from sealed container, what are the liabilities of a person who is neither a manufacturer nor importer. Section 30(3) lays down that "a person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof; 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 that the insecticide, while in his possession, was properly stored and remained in the same state".

As I submitted above, the case of the petitioner is being defeated by the State by raising a moot point of fact by urging that it is a matter yet to be decided by evidence that whether the petitioner had knowledge that the contents of the sample were not misbranded. This defence of the State is not tenable, in view of the specific allegations as contained in para No. 5(g) of the complaint which prima facie indicates that the sample was taken from a sealed container and there is no averment in the complaint itself that the petitioner had the knowledge of the contents having misbranded. The case law which has been relied upon by the State 1990(2) RCR 442 Daulat Ram v. State of Punjab , will not be helpful to the State in view of the plain reading of Section 30(3) and in view of the dictum of this Court as well as of the Supreme Court. In this regard with approval, I may quote 1997(1) RCR 42 M/s Delhi Agriculture Store v. State of Punjab , where his Lordship was pleased to hold while interpreting the provisions of Section 30(3) that a dealer of insecticides, if he sells the insecticides/pesticides in a packed condition as packed by the manufacturing company, such person is protected under Section 30(3) of the Act. The second case law which can be relied upon is 1996(3) RCR 140 Amar Khad Store v. State of Punjab , where similar point was answered by his Lordship.

A reference was also made to a judgment of the Hon''ble Supreme Court reported as 1992(1) CCR 768 M/s Kishan Beej Bhandar v. Chief Agrl. Officer, wherein it was held :

"We are inclined to accept the submissions and take the view that whether it in the prosecution or contravention leading to cancellation, sub section (3) applies. In this view of the matter on 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".

If this ratio is applied to the facts in hand it will be crystallised that it is none of the case of the State when he filed the complaint before the Magistrate that the petitioner had the knowledge that the contents of the sample were misbranded or substandard.

There is another aspect of this case. Against these very allegations against the petitioner his licence was cancelled. The petitioner approached the Appellate Authorities i.e. the Joint Director of Agriculture, who vide order Annexure P.7 set aside the order and restored the licence of the petitioner firm while granting protection under section 30(3) of the Act. Following the above dictum of the Hon''ble Supreme Court and the two decisions of this Court, this Court is not in a position to accept the contention of the learned counsel for the respondent when he relies upon the judgment Daulat Ram v. The State of Punjab (supra).

Resultantly, the present petition is hereby allowed. The complaint Annexure P.8 and all the subsequent proceedings pending before the learned Magistrate against the petitioner are hereby quashed. The petition is allowed.