M/s. Des Raj Satish Kumar and Others vs State of Punjab

Sabina. J.—This petition has been filed u/s 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) for quashing of complaint No. 67/2 of 24.2.2006 under Sections 3k (i), 17, 18 and 33 punishable u/s 29/1 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules 1971 (Annexure P-1) as well as summoning order dated 24.2.2006 (Annexure P-2) and all the consequential proceedings arising therefrom. The case of the petitioners, in brief, is that petitioner No. 1 is the dealer, who has obtained licence for sale of different types of insecticides/pesticides including that of M/s. United Phosphorus Ltd. D-21 New Focal Point, Dabwali Road, Bathinda. Petitioner No. 2 is the proprietor of petitioner No-1 firm. Petitioner No. 3 is the distributor and petitioner No. 4 is the proprietor of petitioner No. 3 M/s. Duni Chand Faquir Chand, Rama Mandi District Bhatinda. The shop of petitioner No. 1 was inspected by complainant Sandeep Kumar. Insecticides Inspector, Abohar on 4.9.2004. Sample was drawn from one litre packing of Triazophos 40% EC Batch No. AB3JOS4002 manufactured by M/s. United Phosphorus Ltd. D-21 New Focal Point, Dabwali Road, Bathinda. On the container the manufacturing date was mentioned as 11.1.2004 and the expiry date was mentioned as 10.1.2006. The sample was sent to the Insecticide Testing Laboratory and was found to be misbranded. The petitioners along with other accused have been summoned to face the trial vide order dated 24.2.2006 (Annexure P-2).

Learned counsel for the petitioners has submitted that the petitioners could not be held liable for any misbranding of the sample. The petitioners were dealers/distributors of the insecticide manufactured by M/s. United Phosphorus Ltd. D-21 New Focal Point, Dabwali Road, Bathinda. The insecticide was being sold by petitioner No. 1 in sealed containers in original form as obtained from the distributor, who had been supplied the insecticide by the manufacturer. The petitioners did not and could not have ascertained whether the insecticide in any way was being manufactured in contravention of any provision of the Act. The insecticide had been properly stored by the petitioners and had remained in the same state as and when they acquired it. There was no averment in the complaint that the insecticide had not been store by the petitioners in the proper state.

Section 30(3) of the Insecticides Act, 1968, (for short ''the Act'') reads as under:-

Defences which may or may not be allowed in prosecutions under this Act.:-

(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 a 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.

A perusal of Section 30(3) of the Act shows that the petitioners are entitled to the protection under the same, in case, the sample is taken from the sealed container and the seal had not been tampered with when the same was recovered from the shop. However, the protection would not be available to the dealer or distributor in case the insecticide has not been stored properly.

In reply filed by the State of Punjab, it has been admitted that petitioner Nos. 1 Gnd 2 were the dealers and petitioners No. 3 and 4 were the distributors.

Admittedly, the sample in question was drawn from one litre packing and thus, the sample had not been drawn from the insecticide which was lying open.

Hon''ble Vie Supreme Court, in the case of M/s. Kisan Beej Bhandar, Abohar v. Chief Agricultural Officers, Ferozepur and another reported as 1990 Supreme Court Cases (Cri.) 623, in para No. 4, held as under:-

The High Court took the view that by enacting sub section (1) of Section 30 of the Act, Parliament had taken out the element of mensrea from consideration and, therefore, knowledge was not at all material. Appellant''s counsel has argued that protection of sub-section (3) is available not only to prosecutions but also to every contravention of the Act and cancellation of licence for contravention of the Act is also a matter covered by sub-section (3). We are inclined to accept the submission and take the view that whether it is prosecution or contravention leading to cancellation, sub-section (3) applies. In that view of the matter, on the facts found that it was a full tin in a sealed condition, the liability arising out of miss-branding 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 sub-section (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 provisions of subsection (3) had been satisfactorily discharged, even in the matter of considering the question of cancellation of licence and,-therefore, his licence should not have been cancelled. We allow the appeal, reverse the order of the High Court and the authorities and restore the licence. The appeal is disposed of accordingly. No costs.

This Court, in the case of M/s Guru Nanak Pesticides, Nabha and Others Vs. State of Punjab, , held as under:-

Petitioner No. 1 is the stockist; petitioners No. 2 and 3 are its partners while petitioner Nos. 4 and 5 are the distributor. They are not the manufacturer of the relevant insecticide. There is clear-cut plea in the petition that they were selling the insecticide in the-sealed container in the original form as obtained from the manufacturer and the sample was also taken from the original packing. This plea has not been controverted by the State. Thus, there remains no controversy that the impugned sample was obtained from the sealed containers lying in the premises of the firm and there is no material to indicate that the insecticide was not properly stored. Thus, the petitioners being the stockist/dealer/distributor, involved in the sale of insecticides, cannot be held liable for misbranding of the insecticides and only the manufacturer would be liable. In this context reliance can he placed on the cases of M/s Kisan Beej Bhandar, Abohar v. Chief Agricultural Officers, Ferozepur and Anr. and M/s. Vimal And Co. Grain Market, Mallanpur v. State of Punjab, 2002 (2) RCR (Cri.) 56 (P & H), followed in the case of Deepak Sharma & Ors. v. State of Punjab, 2002 (2) RCR (Cri.) 24 and reliance can be safely placed on the case of M/s. Punjab Beej Bhandar Bela and another Vs. State of Punjab, wherein also this Court quashed the criminal proceedings against the licensed dealer.

Admittedly, the petitioners are not the manufacturers of the insecticides out the dealer and the distributor. Hence, they cannot be held responsible for misbranding the insecticide, which was not manufactured by them.

The petitioners were only involved in the sale of insecticide. The complaint qua manufacturers is pending. There is nothing on record to suggest that the insecticide had not been properly stored by the petitioners.

Accordingly, this petition is allowed and complaint No. 67/2 of 24.2.2006 u/s 3k (i), 17, 18 and 33 punishable u/s 29(1) of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules 1971 (Annexure P-1) as well as summoning order dated 24.2.2006 (Annexure P-2) and all the consequential proceedings arising out of the said complaint, qua the petitioners, are quashed.