Rajindra Prasad vs State of Haryana

M.L. Singhal, J.

This is a Criminal Miscellaneous Application filed under Section 482 Cr.P.C. read with Article 227 of the Constitution of India by M/s Rajinder Prasad, Subhash Mandi, Kurukshetra through Rajindra Prasad (dealer firm) and Shri Rajindra Prasad responsible for the conduct of the business of the dealerfirm against the State of Haryana whereby it has been prayed that complaint Annexure P1 filed by the Quality Control Inspector (InsecticideI) Kurukshetra against M/s Rajindra Prasad (dealer) and M/s Agro Chemical (a unit of Bhagwati Mineral Pvt. Ltd., Jaipur) under sections 29(1)(a)/17(1)(a) of the Insecticides Act, 1968 (hereinafter to be referred as "the Act") be quashed as also the consequential proceedings arising therefrom. According to the prosecution, on 20.12.1995 Insecticides Inspector inspected the business premises of M/s Rajindra Prasad, Subhash Mandi, Kurukshetra. At the time of inspection, Rajindra Prasads was present at the business premises of the dealer firm. A sample of 24D Ethyle Ester 38% was taken by the Insecticides Inspector which was manufactured by M/s Agro Chemicals (a unit of Bhagwati Mineral Pvt. Ltd., Jaipur) from sealed packing. Before sample was taken, notice in form XII as prescribed under Rule 33 was given to Rajindra Prasad. Sample was taken from sealed packing from the original pack. Each part of the sample was put in polythene bag. Polythene bag was further put in cloth bag with sample slips bearing the particulars of the sample. Those cloth bags were sealed in the presence of Shri Devinder Kumar, younger brother of the dealer who affixed his signatures on the sample slip. Sample was drawn according to the procedure laid down in the Act and the rules framed thereunder after serving notice in Form XII. Sample was sent to the State Quality Control Insecticides Laboratory, Karnal vide letter No. 8526 dated 21.12.1995 which on analysis was declared misbranded by the Senior Analyst of the Quality Control Insecticides Laboratory, Karnal. Copy of the report, on analysis, was sent to M/s Rajindra Prasad under the Provisions of Section 24(2) of the Act by Deputy Director, Agriculture, Kurukshetra vide letter No. 1784/Qc dated 26.2.1996. Result, on analysis, was conveyed to M/s Agro Chemicals also.

On receipt of the report of analysis, Complaint Annexure P1 was filed in the Court of Chief Judicial Magistrate, Kurukshetra by the Quality Control Inspector (InsecticideI), Kurukshetra under Sections 29(1)(a) and 17(1)(a) of the Insecticides Act, 1968.

In support of their prayer for quashing of complaint Annexure P1 it has been submitted by the dealer firm that as admitted in para No. 4 of the complaint itself, sample was taken in a sealed packing from the original pack. In view of the provision of Section 30(3) of the Act, dealer firm is not liable for contravention, if any, of the provisions of the Act for the misbranding of the sample. If there is any liability for the misbranding of the sample, that will be of the manufacturer. Sanctioning authority did not apply mind while according sanction to the prosection, to this aspect of the case. If there had been application of the mind by the sanctioning authority at the time of sanctioning the prosecution to this aspect of the matter, there would have been no prosecution launched against the dealer firm.

No written statement has been filed by the State of Haryana opposing the quashing of complaint Annexure P1 despite the grant of opportunity to the State of Haryana on 9.7.1997.

It has been submitted by the learned counsel for the petitioners (dealer firm) that the petitionerdealer 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 reads as follows :

"30. 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 provisions of Section 30(3) of the Act, my attention was drawn to Puneet Gupta v. State of Haryana, (Crl. Misc. No. 6914M of 1996), 1996(3) RCR 587 (decided on 7.8.1996), M/s Delhi Agricultural Stores v. State of Punjab, 1997(1) RCR 42 and Chander Kanta v. State of Punjab, 1997(1) RCR 453 . It was held in 1996(3) RCR 587 (supra) as follows :

"On the similar facts I have given a detailed judgment in Crl. Misc. No. 20088M 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 petitioners could not know with reasonable diligence and case 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."

Learned State counsel on the other hand, submitted that it is for the dealer to prove that at the time when the insecticide in question was stored by him, he did not know, nor could he know after the exercise of reasonable diligence that the insecticide in question was contravening any of the provisions of the Act and it is for the dealer to prove that while in possession of the insecticide, he had stored it properly and had kept it in the same state as and when he had acquired it. It is for the dealer to prove that he had acquired that insecticide from an importer or a duly licensed manufacturer. It was submitted by the learned State counsel that all these questions are questions of fact which can be ascertained at the time of trial Onus to prove these facts which are in the nature of defence, lies upon the dealer. Learned counsel for the petitioner, on the other hand, submitted that there is no mention in the complaint that the dealer did not exercise reasonable diligence while storing the insecticide in question and that he had tampered with the insecticide after he had acquired it. In my opinion, this complaint should be quashed qua the dealer as it would be a futile exercise to continue this complaint against the dealer. Object of criminal prosecution is to vindicate the interest of the society and not to persecute the accused. What is the fun taking this prosecution to its logical and when this prosecution is infirm on the face of it qua the dealer.

For the reasons given above, complaint Annexure P1 is quashed qua the dealer and also every consequential proceedings having been taken in pursuance of complaint Annexure P1. This Crl. Misc. No. 9154M of 1997 stands accepted and is accepted.