S.K. Jindal vs State of Haryana

Rajive Bhalla, J.—In the present petition, filed u/s 482 of the Code of Criminal Procedure, the Petitioner herein, prays for quashing of the impugned complaint dated 31.7.2001 (Annexure P-2) and all consequential proceedings ensuing therefrom.

The Petitioner is a Director of a Company namely; M/s. Safex Chemicals (India) Ltd., New Delhi (hereinafter referred to as "the Company", duly registered under the Companies Act. The company has its factory at Bahadurgarh, Distt. Jhajjar, where it manufacture pesticides and insecticides. On 13.1.2001, the Respondent drew a sample of Fenvalrate 20% E.C. Pesticide from the shop premises of M/s. Zamindara Sewa Centre, Shahabad Markanda, Distt. Kurukshetra. Upon analysis, by the State Quality Control Insecticide Laboratory, Karnal, the sample was found to be misbranded.

Thereafter, the Respondent instituted the impugned complaint in the Court of Chief Judicial Magistrate, Kurukshetra, who vide order dated 31.7.2001, took cognizance of the complaint and summoned the Petitioner along with other co-accused.

The sole contention, raised by counsel for the Petitioner, is that under the provisions of the Act, more particularly Section 33 thereof, when a company is sought to be prosecuted, for an offence under the Act, such persons alone can be cited as accused as were incharge of or were responsible to the company for the conduct its business at the time of commission of the offence. The complaint is required to specifically and categorically aver that the accused was incharge of or was responsible to the company for the conduct of its business.

It is further contended that a perusal of the complaint reveals the lack of any such averments and, therefore, the complaint is liable to be quashed. Reliance for the above proposition is placed upon Shabbir Itarsi and Anr. v. State of Haryana, 2005 (1) RCR (Cri) 31 and M/s. Oswal Agro Sales Corporation and Ors. v. State of Punjab, 2005 (3) RCR(Cri) 113.

Counsel for the Respondent State on the other hand contends that while initiating a prosecution under the Act, it is not necessary to reproduce the words contained in Section 33. A perusal of the complaint shows that requirements of Section 33 have been complied with and, therefore, the complaint cannot be quashed.

I have heard learned Counsel for the parties and perused the paper book.

Section 33 of the Act reads as follows:

Offences by Companies: (1) Whenever any offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this Sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without the knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in Sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. - For the purpose of this section, -

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.

When a company is sought to be prosecuted for an offence under the Act, Section 33 postulates that every person, who at the time of the commission of the offence was incharge of or was responsible to the company for the conduct of its business, shall be deemed to be guilty of the offence. Section 33 raises a presumption that every person, who at the time of the offence was incharge of or was responsible for the conduct of its business is guilty. In this view of the matter, the complaint must disclose, specifically or by necessary inference that a person or persons cited as accused were, at the time of the commission of the offence, incharge of or responsible to the company for the conduct of its business. Only such person/persons, as are stated to be incharge of or responsible for the conduct of business, at the time of the commission of the offence can be cited as accused. A perusal of the complaint, in its entirety reveals that the complaint does not satisfy the statutory requirements of Section 33 of the Act.

Para 9 of the complaint reads as follows:

That the same misbranded insecticide was manufactured and distributed for sale by M/s. Safex Chemicals (India) Ltd., Bahadurgarh, which is violation of Section 17(1)(a) of Insecticides Act, 1968 and punishable u/s 29(1)(a) of the Insecticides Act, 1968. The accused Nos. 1 and 2 Sh. Ravi Nandan Kumar and Sh. S.K. Jindal, Director are responsible for the same offence. This offence is also punishable u/s 29(1)(a) of the Insecticides Act, 1968.

In my opinion, the averments contained in para 9 that accused Nos. 1 and 2 are Directors and, therefore, responsible for the offence, does not satisfy the mandatory requirements of Section 33 of the Act. This averment, in my opinion, falls far short of the statutory requirements of Section 33 of the Act. The above opinion is fortified by the following judgments enumerated as State of Haryana v. Brij Lal Mittal, 1998 (2) RCR 608; Charda Chemicals Ltd. v. State of Punjab, 1997 (2) RCJ 99; Lal Chand Patni v. State of Haryana, 1998 (4) RCR 546; Murli Manohar v. State of Punjab, 2001 (4) RCR 536; M/s. Hindustan Pulverising Mills v. State of Punjab, 2002 (1) RCR 461; Sh. J.K. Pareek, Commercial Manager, Herbicides (I) Ltd. v. State of Haryana, 2002 (1) RCR (Criminal) 572; 9922Ashok Kumar Chauhan v. State of Punjab, 2002 (1) RCR 523; Dr. Vineet Bhushan v. State of Punjab, 2002 (4) RCR 586 and Deepak Kumar v. State of Haryana, 2002 (4) RCR(Crl.) 301 (P&H) : 2003 (1) AICLJ 111.

In view of the aforementioned judgments, the provisions of Section 33 of the Act the averments contained in the complaint, fall for short of the mandatory requirements of Section 33 of the Act, namely; that a person or persons cited as accused are or were, at the time of the commission of the offence, incharge of or responsible to the Company for the conduct of its business. The averments in para 9 merely state that the accused Nos. 1 and 2 Sh. Ravi Nandan Kumar and Sh. S.K. Jindal, Directors are responsible for the same offence. As Section 33 raises a presumption of guilt, in the person cited as an accused, the complaint must disclose by averments specific or inferential that the Respondents referred to therein were responsible to the company for the conduct of its business at the time of commission of the offence. The complaint does not contain any averments specific or inferential, as would lead to a conclusion that the Petitioner was on the date of the commencement of the offence responsible to the Company for the conduct of its business. The complaint obviously does not fulfil the mandatory requirements of Section 33 of the Act and is, therefore, liable to be quashed.

Before parting with the judgment, it would be appropriate to notice an argument raised by counsel for the Respondent. It is contended that a Director, by the very nature of the office, he occupies in a company, is presumed to be an officer incharge of, or responsible to the company for the conduct of its business and, therefore, the absence of a specific averment that he was incharge of or responsible for the conduct of business would in no manner entitle the Petitioner to any relief. I express my inability to accept the above contention. All Directors, by the very nature of the office they occupy may or may not be incharge of or responsible to the Company for the conduct of its business. Every Director, cannot be said to be incharge of or responsible for the conduct of the business of a company. If such an expensive (expansive ?) interpretation was to be assigned to Section 33, the very reason for incorporating the words "every person who at the time the offence was committed was incharge of, or was responsible to the company for the conduct of the business of the company" would be rendered meaningless.

In view of what has been stated above, the present petition is allowed. The complaint and all subsequent proceedings emanating therefrom are quashed.