R.C.Gupta vs State of Punjab

S.S. Sudhalkar, J.

Petitioner R.C. Gupta, ExDirector of Montari Chemicals Limited, New Delhi is one of the accused in case titled State through Shri Sucha Singh Insecticide Inspector, Ferozepur v. Sanjay Narang and two others pending before the court of Chief Judicial Magistrate, Ferozepur. The case is a complaint under sections 3(k)(i) 17, 18, 33 punishable under Section 29 of the Insecticides Act, 1968 read with rule 27(5) of Insecticides Rules, 1971. The case of the complainant respondent No. 1 is that he visited and shop of Shri Sanjay Narang, sole proprietor of M/s Sanjay Trading Company, Ferozepur City on 13.7.1989 and drew the samples of Milte (Ogiryate) 10 g. manufactured by M/s. Kissan Chemicals, Industrial Area, Phase II, Chandigarh and distributed to the dealer by M/s. Dugal Trading Company, Anaj Mandi, Ferozepur Cantt. on 13.7.1989. The sample on examination was found having low active ingredient contents and hence not satisfactory as it contained 7.34% instead of 10% active ingredients and thus it was misbranded. The petitioner has filed this petition for quashing the complaint and all the consequential proceedings qua him.

I have heard learned counsel for the parties.

At the time of argument Mr. Patwalia has limited his prayer for quashing the complaint qua the petitioner only. Mr. Patwalia has raised the following points.

"(i) That there is no sanction to prosecute the petitioner;

(ii) Sanction is in a cyclostyle form and, therefore, there is no application of mind.

(iii) That there is no allegation against the petitioner;

(iv) That no show cause notice under section 24(4) of the Act has been given to him;

(v) The life of the sample expired when the case was filed and, therefore, the petitioner has no chance to get the sample retested."

Sanction/written consent is required under Section 31(1) of the Insecticides Act, 1968 (hereinafter referred to as the Act). Section 31(1) of the Act reads as under :

"31. Cognizance and trial of offences : 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."

In the present case copy of the sanction/written consent is produced with annexure P/1. The consent/sanction is for prosecuting (i) M/s. Sanjay Trading Company, (ii) M/s. Kural Trading Company, and (iii) M/s. Kisan Chemicals. The copy of the complaint is at annexure P/1 wherein the petitioner is described as "Shri R.C. Gupta, Director M/s. Kissan Chemical......" Mr. Patwalia has also argued that Director of the Company cannot be said to be Company and the company is not a party and, therefore, the petitioner cannot be prosecuted. He has cited the case of Jagdish Chander Khurana v. State of Punjab, 1996(3) RCR (Crl.) 603 : 1997(2) All Instant Judgments 9. In that case the company which manufactured the articles was not made party to the complaint and the complaint was quashed. Same is the position in the present case also. In Jagdish Chander Khurana''s case (supra) relying on the case of G.S. Nagpal v. State of Punjab, 1994(1) RCR 347 it has been held that when there are no specific averments in the complaint about the petitioner being incharge and responsible to the company in the conduct of its business and further in the absence of the company being arrayed as an accused, the complaint could not survive against the petitioner and was liable to be quashed. In the case cited above, the learned Single Judge has also relied on the case of Sham Sunder Bassi v. State of Punjab, 1991(3) RCR 199 wherein an Area Manager was alone prosecuted for Fertilizer Control JUDGMENT 1957 and the company was not arrayed as an accused and in those facts and circumstances, the complaint against the Area Manager was held liable to be quashed. Considering these facts learned Single Judge in the case of Jagdish Chander Khurana v. State of Punjab (supra) quashed the complaint against the petitioner of that case. In the present case also, except the words "thus Sh. R.C. Gupta, Director Kissan Chemicals, Chandigarh and Sh. Ved Parkash son of Daulat Ram of M/s Dugal Trading Company, Ferozepur Cantt. committed an offence.......", there is no other averment against the petitioner. Moreover, in the sanction also, name of the petitioner does not exist. In the case of G.S. Nagpal v. State of Punjab (supra) it was held that there was no averment that Managing Director was incharge and responsible to Company for conduct of its business and, therefore, the proceedings against the Managing Director, under the Fertilizer (Control) JUDGMENT were quashed.

Learned counsel for the respondents has relied on the case of Hari Singh Verma v. State of Haryana, 1997(1) Recent C.R. 156. In that case it was held that the sample of insecticide was found to be misbranded and that the consent to prosecute the petitioner was given by the authority. In that case the prosecution was sought to be quashed on the ground that the officer was not responsible for conduct of business of the Company. It was held by the learned Single Judge of this court in that case that the question as to whether the accused was responsible for conduct of business is a question of fact to be decided after taking evidence during trial. In that case it was observed by the learned Single Judge that the consent for prosecution has also been accorded for prosecution of petitioner No. 1 being a responsible officer of the said manufacturer viz. petitioner No. 2. The present case differs from the case of Hari Singh Verma v. State of Punjab (supra). Here in this case it is not averred that the petitioner is responsible officer of the manufacturer. This difference tilts balance in favour of the petitioner. Thus it is clear that it is not averred in the complaint that the petitioner was responsible for misbranding of the sample and sanction has been given to prosecute the petitioner. On these two grounds, the petition succeeds. I, therefore, do not consider it necessary to deal with the other points raised by learned counsel for the petitioner.

As a result, this petition is allowed and the complaint qua the petitioner is quashed.