Kuldip Singh vs State of U.P.

K.K. Srivastava, J.—The Petitioner seeks the quashing of the impugned complaint, copy Annexure-P1, dated 17.5.1993, registered under Sections 3K(i), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules, 1971 (for short to be referred as the Act, 1968), quashing of impugned summoning order passed by Chief Judicial Magistrate, Ludhiana, copy Annexure-P4 and consequential proceedings arising therefrom. Petitioner Kuldip Singh, who is a proprietor of M/s. Grewal Kheti Sewa Centre, Pakhowal, Ludhiana, is a dealer of insecticides in the market. The insecticides in question, the sample of which was taken by Insecticides Inspector from the shop of the Petitioner. had been manufactured by Bayer India Ltd., Bombay. It was stored at the shop of the Petitioner in the original container duly sealed and in the condition it was received from the manufacturer. The sample, which was sent for analysis to the Central Insecticides Laboratory, was found to be misbranded and not as per the specifications. Hence, violation of the aforesaid Sections of the Act 1968 was detected which resulted in the filing of the impugned complaint.

The sole ground for seeking the quashing of the impugned complaint is that the dealer is protected by Section 30(3) of the Act, 1968, inasmuch as he is a dealer and was storing at his shop the insecticides in question in the original container supplied by the manufacturer, and he did not know the contents of the said insecticides being substandard or misbranded.

Notice was issued to the Respondent, who filed reply contending, inter alia, that the seal on the container was not that of the manufacturer and as such, the Petitioner-dealer is not entitled to the protection u/s 30(3) of the Act 1968.

Learned Counsel for the Petitioner referred to the report of the Central Insecticides Laboratory, Faridabad, copy Annexure-P2, where in item No. 6, the condition of the seal and package are shown as sub-items (a) and (b) and it has been mentioned against them that the condition of the seal was found to be intact and contained in original container. It is relevant to note that the Insecticides Inspector did not append a note at the time of preparing of the sample that the seal on the container was not original of the company. No such assumption can be drawn in favour of the prosecution that the seal on the container was not that of the company which manufactured the insecticides, and that in any case, the benefit of any section will undoubtedly go to the accused and not to the prosecution. Learned Counsel for the Petitioner cited a Single Bench judgment of this Court in M/s. Rajindra Prasad v. State of Haryana 1998 (1) RCR 163. The learned single Judge found in that case that sample of insecticides was taken in sealed packing from original pack. The contention of the dealer was upheld that it was protected by the provisions of Section 30(3) of the Act, 1968 and the impugned complaint was quashed qua the dealer. Dealing with the arguments on this point regarding the protection of Section 30(3) of the Act, 1968, the learned single Judge held as under :

It has been submitted by the Learned Counsel for the petitioners (dealer firm) that the Petitioner-dealer firm is fully protected by the provisions of Section 30(3) of the Act as the sample when taken was in a sealed packing and in original pack. Section 30(3) of the Insecticides Act, 1968 read as follows :

Defence which may or may not be allowed in prosecution under this Act. �

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for contravention of any provisions 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 support of this submission that when sample is taken in sealed packing from original pack, the dealer firm is fully protected because of the provision of Section 30(3) of the Act, my attention was drawn to Puneet Gupta v. State of Haryana. Crl. Misc. No. 6914-M of 1996, decided on 7.8.96 : 1996 (3) RCR 587, on 7.8.1996 ; M/s. Delhi Agricultural Stores v. State of Haryana 1997 (1) RCR 42 and Chander Kanta v. State of Punjab 1997 (1) RCR 453. It was held in Puneet Gupta v. State of Haryana (supra) as follows :

On the similar facts, I have given a detailed judgment in Crl. Misc. 20088-M of 1995, M/s. Amar Khad Store v. State of Punjab 1996 (3) RCR 140, wherein it was observed that as the samples were purchased from the licensed manufacturer, and the same were drawn from the sealed container, therefore the Petitioner could not know with reasonable diligence and ease that the insecticide in any manner contravened any provisions of the Act. It was further observed that if the samples and the material of insecticide available with them was misbranded, the liability lies upon the manufacturer and not on the petitioners.

The facts of the case are squarely covered with the case of M/s. Rajinder Prasad (supra). Consequently, the petition is allowed and impugned complaint order of summoning and consequential proceedings are quashed qua the Petitioner.