M/s. Josan Khad Store and Others vs State of Punjab

Daya Chaudhary, J.—The present petition has been filed u/s 482 Cr.P.C. for quashing of complaint No. 47 dated 01.05.2010 under

Sections 3(k)(i) 17, 18, 29 and 33 of Insecticides Act, 1986 read with Rule 27(5) of the Insecticides Rules, 1971 and also the proceedings arising

therefrom. Briefly, the facts of the case as mentioned in the petition are that petitioner No. 1 is dealer and obtained licence for selling, stocking,

exhibiting for sale of different types of Insecticides Pesticides. Petitioner No. 2 is proprietor of petitioner No. 1-firm whereas petitioner No. 3 is

distributor and petitioner No. 4 is proprietor of petitioner No. 3. The shop of petitioner No. 1 was inspected on 28.12.2006 by Inspector Gurbaj

Singh and found 160 gm x 2 piroxofop-Propanyl 15% wp brand and drew the sample of Piroxofop-Propanyl 15% wp brand by selecting 160 gm

bearing Batch No. KT 033 manufacturing date Dec, 05. The expiry date was recorded November 2007 and the same was manufactured by M/s

B.R. Agrotech, New Delhi and supplied by M/s Atul Ltd. Agro Chemical Division, Valsaad Gujrat. Out of total stock, a sample of 16 gms was

drawn and after dividing into three parts, one part of the sample was given to petitioner and two were kept by the Insecticide Inspector. One part

of the sample was sent to Insecticide Testing Laboratory, Amritsar, which was found to be misbranded. On the basis of said report, a complaint

was made on 01.05.2010 before the Court of Chief Judicial Magistrate, Moga and the petitioner and other accused were summoned.

The complaint as well as summoning order has been challenged in the present petition by raising various grounds.

Learned counsel for the petitioners submits that the procedure and manner of taking sample is mandatory in nature but the same has not been

followed by Insecticide Inspector. The sample was taken from the dealer in original packing and petitioners should not have been proceeded u/s

30(3) of the Insecticides Act. Learned counsel for the petitioners further submits that the petitioners were selling insecticides in sealed containers in

the original form as obtained from the registered manufacturer and no prosecution could be launched against the petitioners. Learned counsel for

the petitioners further submits that there is no allegation in the complaint that sample was not stored in the proper state and it was not in the sealed

container. Learned counsel for the petitioners also submits that it has been held in various judgments that when a sample is drawn from the original

packing, the dealer and distributor cannot be held liable for misbranded pesticides as liability is of manufacturer only. The delay in sending sample

is also fatal to the prosecution as in the present case, the sample was drawn on 28.12.2006 and it was found misbranded on 30.01.2007 and the

complaint was filed on 01.05.2010. Learned counsel for the petitioners also submits that the maximum punishment of the present offence is only

two years and the complaint was lodged after a delay of more than three years and the same is barred by limitation as per provisions of Section

468 Cr.P.C. Learned counsel for the petitioners has also relied upon the judgment of Hon''ble the Supreme Court in State of Rajasthan Vs. Sanjay

Kumar and Others, as well as judgment of this Court in Anand Trading Co. and Another Vs. State of Punjab,

Learned State counsel has not disputed the submissions made by learned counsel for the petitioners.

Admittedly, the petitioners are not manufacturer as petitioner No. 1 is dealer, petitioner No. 2 is proprietor of petitioner No. 1-firm, petitioner No.

3 is distributor and petitioner No. 4 is proprietor of petitioner No. 3. It is an admitted fact that the sample was drawn from the sealed container

and date of expiry was also mentioned. It is also an admitted fact that the sample was drawn on 28.12.2006, which was found misbranded on

30.01.2007 and present complaint was filed on 01.05.2010. The maximum punishment of present offence is two years and complaint was lodged

after a delay of more than three years, which is barred by limitation as per provisions of Section 468 Cr.P.C.

This view has been supported by the ratio of judgment of Hon''ble the Supreme Court in M/s Kishan Beej Bhandar, Abohar v. Chief

Agricultural Officers, Ferozepur, 1990 SCC (Crl) 623. The relevant portion of the judgment is reproduced 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 mens rea 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 prosecution 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 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 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 sub-section (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.

As per provisions of Section 468 of the Code, no Court can take cognizance of the offence for which, the punishment for imprisonment is

exceeding one year but not exceeding three years.

In the present case, the sample was drawn on 28.12.2006 and it was found misbranded on 30.01.2007 and complaint was filed on 01.05.2010.

As per provisions of Section 29 of the Insecticides Act, the maximum punishment is two years and as such, the complaint is barred by limitation

and the same is liable to be quashed on this ground alone.

In view of facts as mentioned above as well as settled position of law, the present petition is allowed and the complaint as well as summoning order

and other proceedings arising therefrom are quashed.