V.K.Sharma vs State of Punjab

S.C. Malte, J. Oral

The petitioners are the officebearers of the Company known as Sun Beam Agro Chemicals, Punjab, Limited, incorporated under the Companies Act. Petitioner No. 1 has already retired from the employment. The text of the complaint indicates that the Insecticide Inspector visited the premises of the Company on 3.8.1990 and collected the samples of certain fertilizers that were being manufactured in the premises of the Company. The said samples were subjected to analysis, which revealed that the sample were not as per the requirements. In other words, allegedly, the offence under section 3K, 17, 18, 29 and 33 of the Insecticides Act, 1968, read with sections 27(5) of the Insecticide Rules, 1971 was committed. After the report of the analysis of the said fertilizer was received, a due notice was served on the Company and the Company was informed about the result of analysis. Thereafter, steps were taken to obtain consent to prosecute as per section 31 of the Insecticides Act. Annexure P5 in the said consent letter, which indicates that the consent was to prosecute Messrs Sun Beam Agro Chemicals, Punjab, Limited, through the Punjab Agro Complex, Salem Tabri, Ludhiana manufacturers. The mention of the name of the person or the accused in the said consent letters assumes significance for the purpose of disposal of this petition.

The counsel for the petitioner contended before me that the said letter was a sanction to prosecute and it was devoid of any application of mind that was necessary before the sanction was granted; and secondly, the said sanction was not to prosecute the present petitioners. The counsel for the petitioners invited my attention to the case of V.K. Pahwa v. State of Punjab through Insecticide Inspector, 1994(3) Recent CR 377 ; M/s Pesto Chemicals India Ltd. v. State of Punjab, 1994(3) Recent C.R. 484; and Tannu Galhotra alias Neeraj v. State of Punjab, 1994(3) Recent C.R. 501 . All these three cases were decided by the same Court. In all these three cases, his Lordship considered section 31 and observed that since the ''sanction'' granted under section 31(1) of the Insecticides Act did not give facts and did not reveal the application of mind before sanction, the prosecution based on such sanction was bad. With great respect to the Lordship, it appears that the attention of his Lordship was not invited to the fact that section 31 of the Insecticides Act contemplates a consent to prosecute, and not the sanction to prosecute. Needless to state that the term ''"consent" to prosecute is totally different from the term "Sanction" to prosecute. The sanction to prosecute implies application of mind to the facts of the case before the sanctioning authority, granting the sanction. The term "Consent" to prosecute would not necessarily involve such exercise. These two terms are not synonymous to each other. In my opinion therefore, the matter did not depend on the application of those criteria which would normally apply to "Sanction". I may further add that the provisions of section 465, Cr.P.C., should also be taken into consideration while considering the error or irregularity in the sanction to prosecute. That section provides that no finding, sentence or order by Court of competent jurisdiction shall be reversed or altered on the ground of any error or irregularity in any sanction for prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. The test applicable while assessing legality of sanction for prosecution would not necessarily be attracted while assessing the legality of consent to prosecute.

The next question, however, would be as to whether the prosecution against the officebearers of the Company only would be tenable in the absence of prosecution against the Company whose product has been subjectmatter of consideration in this case. Section 33 of the Insecticides Act provides regarding the prosecution in cases where the offence has been committed by a Company. It provides that whenever an offence has been committed by a Company, every person who at the time of 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 the guilty of the offence and shall be liable to be prosecuted against and punished accordingly. The Proviso and subsequent part of the section presently is not material for our purpose. Admittedly, in this case the consent pertained to the prosecution of the Company, but unfortunately instead of arraigning the said Company in the list of accused, only the officebearers (the present petitioners) were shown as accused. This flaw has certainly left a lacuna in the prosecution. In this respect, my attention was invited to a case reported in Punjab Legal Report & Statutes (Vol. 12), P. 505 Sham Sunder Bassi v. State of Punjab, 1991(3) Recent Criminal Report 199 . That case was under the Essential Commodities Act. The provisions under that Act, in so far as it pertains to the prosecution of the Company, are pari materia the same as under the Insecticides Act. In that case only the officebearers of the Company were being prosecuted. While considering that aspect his Lordship of our High Court relied on the Supreme Court Judgment in The State of Madras v. C.V. Parekh, AIR 1971 SC 47. As per that ruling, the officebearers of the Company would be liable to be punished only if it found that the Company was itself responsible for the contravention of certain provisions. His Lordship in the abovementioned case relied on the abovecited Supreme Court ruling and arrived at the conclusion that the complaint filed against the office bearers only, without impleading the Company, was bad in law and deserves to be quashed. I am in complete agreement with that ruling of our High Court based on Supreme Court judgment. In this case unfortunately only the office bearers are being prosecuted, although the consent in this case pertained to the prosecution of the Company. Unless the Company was impleaded as an accused, the question of liability of the officebearers of the Company responsible for the production of the commodity in question, would not arise. Moreover, it may also be mentioned that as per section 33 of the Insecticides Act, such officebearers are in a position to place before the Court material to show that when the offence was committed, it was so committed, without the knowledge of the said officebearers or that, despite exercise of all due diligence by him to prevent the commission of offence, inadvertently the offence appears to have been committed. Such position would arise only if primarily Company was held responsible.

In the result, I am left with on alternative but to quash the complaint against the present petitioners. However, it is up to the prosecution to consider as to whether it should file a proper complaint in the light of observations made above. In that case, the question regarding the limitation to file complaint would be required to be gone into and be decided by the trial Court. With these observations, the petition is allowed. The complaint stands quashed.