M.N.Murli Kumar vs State of Punjab

M.L. Singhal, J.

This criminal misc. petition has been filed by M.N. Murli Kumar, Chief Chemist, M/s. Hindustan Pulverising Mills, G.T. Karnal Road, Delhi whereby he has prayed for the quashing of the complaint instituted under Sections 3(k)(1), 17, 18 and 33 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules, 1971 pending in the Court of Chief Judicial Magistrate, Ferozepur. He has also prayed for the quashing of every other proceedings consequential to the institution of that complaint.

On 23.7.1992, Rajinder Kumar, Insecticides Inspector visited the business premises of M/s Maini Pesticides, Guru Harsahai. At that time, Sh. Gurcharan Singh, sole proprietor of this business concern was present at the business premises. Sh. Rajinder Kumar disclosed his intention through notice in writing that he was Insecticide Inspector and the purpose of his visit to this business concern was to seize the sample of insecticide lying stocked there in the business premises for sale. Sh. Gurcharan Singh supplied him three tins of Rogohit 30% EC 250 ML packing batch No. 239 manufactured by Hindustan Pulverising Mills, New Delhi. Each tin was put up in polythene bags which were sealed with seal II GHS. Dealer was asked to put his seal on the sample, but he refused to do so. Payment was made to the dealer. One sealed sample was handed over to the dealer Sh. Gurcharan Singh, sole proprietor of accused firm and receipt was taken from him in lieu of the handing over of the sample to him. Sample was seized in accordance with the procedure laid down in the Insecticide Act, 1968. Remaining two portions of sample were deposited in the office of the Chief Agricultural Officer, Ferozepore. Out of those two samples, one was sent to the Director Agriculture, Punjab Chandigarh and the Director Agriculture sent if further vide letter No. 2856/31. 40(M) dated 28.7.1992 to Director Central Insecticide Laboratory. One sample was kept in the office of the Chief Agricultural Officer, Ferozepore. Director, Central Insecticide Laboratory, Faridabad sent the analyst report to the Chief Agricultural Officer, Ferozepore which reads as under :

"The sample does not conform to the relevant specifications in active ingredients content requirement and thus, misbranded".

Active ingredient contents in the sample was found 26.6% instead of 30% EC. Sample was declared misbranded as per definition under Section 3(k)(1) of Insecticide Act, 1968. Copy of the report of (analysis) was sent to the dealer vide CAO Ferozepore letter No. 10414 dated 9.9.1992. M/s Hindustan Pulverising Mills, G.T. Karnal Road, Delhi is the manufacturer of this insecticide which was found misbranded which had been supplied by M/s Soni Pesticides, Guru Har Sahai distributors to M/s Maini Pesticides Guru Har Sahaidealer. Manufacturer, distributor and dealer have thus, committed an offence punishable under Sections 17, 18, 33 and 3(k)(1) of the Insecticide Act, 1968 by selling, manufacturing and storing misbranded Rogohit 30% EC Insecticide read with rule 27(5) of the Insecticide Rules, 1971. Necessary sanction/written consent of the authorised person was obtained under Section 31(1) of the Insecticide Act, 1968 for prosecuting the accused.

On these allegations, Sh. Rajinder Kumar, Insecticide Inspector, Guru Har Sahai instituted complaint under Sections 3(k)(1), 17, 18 and 33 of the Insecticide Act, 1968 punishable under Section 29 of the Insecticides Act, 1968 read with rule 27(5) of the Insecticides Act, 1971 against the dealer, distributor and manufacturer.

M/s Hindustan Pulversing Mills, G.T. Karnal Road, Delhi is alleged to be the manufacturer of this insecticide which was found to be misbranded. No Complaint has been instituted against M/s Hindustan Pulversing Mills (Manufacturer of this insecticides) which was found misbranded. Only M.N. Murli Kumar, Chief Chemist of the manufacturer concern has been arraigned as accused. In support of his prayer for quashment of this complaint against him, he has alleged that stock of the insecticides expired in September, 1993. complaint was instituted on 8.11.1993. No opportunity was given to him so that he could have the sample retained in the office of the Chief Agricultural Officer, Ferozepur sent for reanalysis to other laboratory as contemplated under Section 24(4) of the Insecticides Act. Copy of the analysis report was not endorsed to him by the Insecticide Inspector. He was, thus, deprived of the right granted under Section 24(4) of the Act. He was not made aware as to the method adopted while the sample was taken. He was not made aware as to how the analysis was undertaken.

No complaint is competent against him alone without arraigning the Companymanufacturer concern as a party. There is no allegation that he was incharge of or responsible to the Company for the conduct of the business of the Company. He could be arraigned as an accused if he had been incharge of or was responsible to the Company for the conduct of the business of the company. Only averment made in the complaint is that misbranded Dimethoate 30% was manufactured by M/s Hindustan Pulverising Mills, Anupam Bhawan, Delhi.

This criminal Misc. petition has been resisted by the State of Punjab urging that the sample was got analysed in the first instance from the Central Insecticides Laboratory, Faridabad. There is no question of sending the second sample to another laboratory. M.N. Murli Kumar was arraigned as an accused as he is a person who was incharge of and was responsible to the company for the conduct of the business of the company. Provisions of Section 33(1) of the Insecticides Act, 1968 have been fully complied with. It was further urged that sanction was obtained as required under the Act and thereafter the complaint was instituted. No prejudice was caused if the sample was straightaway sent for analysis to the Central Insecticides Laboratory, Faridabad.

I have heard Mr. Ravinder Chopra, learned Advocate for the petitioner and Mr. Rajesh Girdhar, learned Assistant Advocate General, Punjab and have gone through the record.

It is submitted by the learned counsel for the petitioner that without arraigning the manufacturer company, the petitioner could not have been arraigned as an accused. There is no averment that Mr. M.N. Murli Kumar, Chief Chemist was incharge of or responsible to the company for the conduct of the business of the company. In support of his submission, he has drawn my attention to Section 33 of the Insecticides Act, 1968 which relates to offences by companies which reads as under :

"Offences by companies (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, or was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this subsection shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the Company, such director, manager, Secy. or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly".

If the offences under the Act have been committed by the company, the persons who may be held guilty and punished are : (1) the Company itself, (2) every person who, at the time, the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company whom for short we may describe as the person in charge of the company, and (3) any director, manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom for short we may describe as an officer of the company. Anyone or more or all or them may be prosecuted and punished. The company alone may be prosecuted. The person incharge may individually be prosecuted.

Section 31 of the Insecticides Act, 1968 relates to the taking of cognizance and trial of offences under the Act. Subsection (1) thereof provides as under :

"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".

These provisions mandate that no prosecution for an offence under the Act can be instituted except by or with the written consent of the State Government or a person authorised in this behalf by the State Government. It is submitted that the sanction of the State Government or authorised officer is sine qua non for launching prosecution under this Act. It has been submitted by the learned State Counsel that sanction has been obtained only to prosecute the manufacturer concern i.e. M/s Hindustan Pulverising Mills and no sanction was taken for prosecuting the petitioner.

It has been submitted by the learned counsel for the petitioner that without arraigning the manufacturer concern as an accused, petitioner could not have been arraigned as an accused. He has drawn my attention to G.S. Nagpal v. State of Punjab, 1994(1) RCR 347 where it was held that Manufacturing Company is not arraigned as an accused, but Managing Director was arraigned as an accused without any averment that Managing Director was incharge of and responsible to company for conduct of its business. No complaint can continue against the Managing Director for violation of the Fertilizer Control JUDGMENT 1985 if the fertilizer manufactured is found sub standard. Provisions of Section 10 of the Fertilizer Control JUDGMENT are pari materia to the provisions of Section 33 of the Insecticides Act. It has been submitted that the prosecution of the Managing Director alone without arraigning the company as an accused was fatal flaw and the complaint against the Managing Director was liable to be quashed. In G.S. Nagpal v. State of Punjab (supra) reliance was placed on the State of Madras v. C.V. Parekh, AIR 1971 SC 447 and Sham Sunder Bassi v. The State of Punjab, 1991(3) RCR 199 . When the offence is committed by a company, then the company is responsible or also the person incharge of and responsible to the company for the conduct of its business. It has been submitted that the nonarraigning of the company as an accused is fatal infirmity so far as prosecution of the Managing Director of the company alone goes.

In Harbhajan Singh Kalra v. State of Haryana and another, 1991(1) RCR 169 , it was held that no complaint under Sections 138 and 141 of the Negotiable Instruments Act is competent against the Director of a limited company if cheque is not honoured by the Bank without arraigning the Company as an accused as it has to be alleged in the complaint that offence was committed by the Directors, Managers etc. with their consent or connivance or neglect on their part.

In this case, however, I do not see any reason to quash this complaint against the petitioner as his very designation suggests that he was Chief Chemist in M/s Hindustan Pulverising Mills, G.T. Karnal Road, Delhi manufacturing this insecticide. As Chief Chemist, he was incharge of and responsible to the company for the quality of the insecticides being manufactured by him as it was his duty to see that the insecticides manufactured by it conformed to the standard laid down in the Insecticides Act. It would bear repetition that whenever an offence under this Act is committed by the company, every person who, at the time, the offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company as well as the incharge of the company shall be liable to be punished. The use of the words ''as well as the company'' suggests that every person who at the time when offence was committed, was incharge or responsible to the Company for the conduct of the business of the company, cannot run away from criminal liability. Company is also criminally liable. He is also criminally liable. He can escape the dragnet of criminality if he says that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. It would be a question of evidence whether M.N. Murli Kumar was incharge or responsible to the company for the conduct of the business of the company.

Learned Assistant Advocate General, Punjab has submitted that the jurisdiction vesting in this Court by virtue of Section 482 of the Criminal Procedure Code to quash the criminal prosecution should be exercised sparingly and with the circumspection.

In State of Haryana v. Chaudhry Bhajan Lal, AIR 1992 SC 604, the Hon''ble Supreme Court has given a few instances where criminal prosecution can be quashed at the threshhold which are as under :

"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or 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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

In Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892, the Apex Court examined the extent of the inherent powers conferred by Section 482 of the Code of Criminal Procedure on the High Court and it reads as under :

"This inherent power conferred by Section 482 of the Code of Criminal Procedure 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. Of course no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. This Court in State of Haryana v. Ch. Bhajan Lal, 1990(3) Supp. SCR 259 to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings...."

It is, thus, clear that criminal prosecution can be quashed by this Court in the exercise of the power vesting in it under Section 482 Cr.P.C. at the threshhold if the allegations made are either absurd or inherently improbable on the basis of which one can never reach a just conclusion that there is sufficient ground for proceeding against the accused or where criminal proceeding is manifestly attended with mala fide and were maliciously instituted with ulterior motive for wreaking vengeance on the accused with a view to spite him due to private and personal grudge. High Court should not exercise this extraordinary power to stifle prosecution in a legitimate case.

In this case, I do not see any reason to quash this criminal prosecution at the very threshhold against the Chief Chemist of the manufacturing concern who was duty bound to see that the insecticide manufactured by their manufacturing concern was marketed only if its quality conformed to the standard laid down in the Act.

For the reasons given above, this criminal misc. petition fails and is dismissed.