M/s. J.S. Agro, Chemicals etc. vs State of Punjab

Nirmaljit Kaur, J,

This is a petition u/s 482 Cr.P.C. for quashing of the complaint No. 41 dated 30.04.2010 under sections 3(k) (i) and 29 (1) (a) see rule 33 of the Insecticide Act, 1968, pending in the Court of Shri Raman Sharma, Civil Judge Junior Division cum Judicial Magistrate 1st Class Amloh, District Fatehgarh Sahib and all subsequent proceedings arising therefrom. Facts, in short, are that on 20.07.2007, Dr. Arjan Singh, Insecticide Inspector, Amloh, District Fatehgarh Sahib inspected the shop of petitioner No. 1 and drew sample of Cartap Hydrochloride 4% G from 5 kg. Original sealed packing manufactured by M/s. Coromandel Agrico Pvt. Limited Sikandrabad (UP) from Batch No. 0707156 having its manufacturing date July, 2007 and the expiry date June, 2009 in the present Shri Har-mail Singh. Petitioners No. 2 and 3 is stated to the partners of the firm and were not there in the pre-'' misses at the time when the sample was drawn. After drawing and dividing the sample into three parts, one part of the sample was given to Shri Harmail Singh and two parts of the sample were retained by the Insecticide Inspector, out of which one part of the sample was sent to the Insecticide Testing Laboratory, Amritsar and the same was found misbranded. Thereafter, the complaint in question was filed in the Court of Judicial Magistrate 1st Class, Amloh.

While impugning the complaint, learned counsel for the petitioners submitted that the petitioners are dealers and the sample was taken from the original packing. It was also contended that the said packing was sealed and opened for the first time when the sample was drawn. As such, the petitioners are not responsible for the manufacturing defect, if any. The same is the responsibility of the manufacturing Company. It is further stated that there is no allegation of tampering with the original packing.

Learned counsel for the respondent State was unable to dispute that the sample was drawn from the original packing or that there was any tampering with the original packing.

Heard.

Even as per the complaint (P1), sample was drawn out of the two packets of Cartap hydrochloride 4% G from 5 kg. of original sealed packing manufactured by M/s. Coromandel Agrico Pvt. Limited, Sikanderbad. The petitioners'' firm is stated to having a valid licence for selling, stocking, exhibiting for sale of different types of Insecticides Pesticides including that of M/s. Coromandel Agrico. Pvt. Limited.

Form No. XX (P3) has been placed on record which reads as under:-

FORM No. XX

(See Rule 33)

Intimation to person/licensee from whom sample is taken.

0040085

M/s. JS Agro Chemicals Nabha Road, Amloh, FGs

0023900

I have taken from the premises of M/s. J.S. Agro Chemicals situated at Nabha Road, Amloh, GFS sample of Insecticide specified below for the purposes of test or analysis.

Dated 20.07.2007

Sd/- Insecticide Inspector

Details of sample taken

Name of insecticide (Technical and Brand Name): Cartap Hydrochloride 4% (PADAN).

%age active ingredient: 40% (Granules).

Batch No. date of mfg. Date of expiry 0707156 July, 2007 Jun, 2009.

Date of drawal of sample : 20.07.2007.

Packing:- Original packing or loose Sample loose Sample drawn from Original Packing.

Size of packing from which sample is drawn: 5 kg.

Approximate weight/volume of sample taken: 400 gm.

Full name of insecticide Inspector who draw the sample:

Dr. Arjan Singh II Amloh

Stock position of insecticide: 7060 kg. (5 Kg packing)

Name of manufacturer: Coromandel Agrico Pvt. Limited Sikandrabad.

Name of Distributor: Direct supply

Name of dealer: M/s. JS Agro Chemicals Nabha Road, Amloh, FGS

Dated 20.07.07

Sd/- Insecticide Inspector

It is evident from the complaint as well as Form XX (P3) that the sample was taken from original packing. There is no allegation in the said complaint that the said seal was tampered with or the originally packing was tampered with. There is no allegation that the said sample was not stored in the same state. The sample having been drawn out the originally sealed packing manufactured by M/s. Coromandel, Agrico Pvt. Limited, Sikanderbad, (UP), the petitioners being the partners of the firm that sells the same, cannot know about the contents of the originally sealed and packed containers.

Learned Single Bench of this Court in the case of Ramesh Kumar and others v. State of Punjab. in 2010 (2) R.C.R. (Cri.) 273 : CRM No. M-13774 of 2009, decided on 15.01.2010, in similar circumstances, held as under:-

As would be apparent on the face of Form XX Annexure P-3, the sample of the insecticide was taken in original packing by Harpreet Singh, Insecticide Inspector from the premises of M/s. Malka Kheti Store, Rajoke Road, Amarkot Tehsil Patti, District Tarn Taran. It is well settled that if the sample is taken from the original packing of the manufacturer and stored for sale in the same condition, the dealer/distributor is entitled to get protection u/s 30(3) of the Act, if the substance/sample drawn was in its original condition. In the instant one, as is being evidenced by Annexure P3, the sample is question was contained in its original packing of 500 mls. There is nothing on the record to show that the pretilachlor 50% EC Preet Batch No. TR 00002 of which sample was drawn was not stored in the same state. If the sample had been tampered with, the original packing would have certainly got disturbed. The same would have not been in the same state. Such being the circumstances, the petitioners being the dealers/distributors cannot be held liable.

Learned counsel, for State has not been able to dispute that the present case is squarely covered by the ratio of judgment rendered by this Court in the case of Ramesh Kumar''s (supra).

In view of the foregoing discussion, the present petition is allowed. Complaint No. 41 dated 30.04.2010 under sections 3(K) (i) and 29 (1) (a) see rule 33 of the Insecticide Act, 1968, pending in the Court of Shri Raman Sharma, Civil Judge Junior Division cum Judicial Magistrate Ist Class Amloh, District Fatehgarh Sahib and all subsequent proceedings arising therefrom qua the petitioners are hereby quashed. Allowed in the aforesaid terms.