- (1.) BHARAT Insecticides Ltd. through it's Zonal Business Manager, Ghaziabad (A1) and it's Assistant Manager, Manoj Kumar(A2) have invoked inherent power of this court, U/S 482 Cr.P.C., through present application, praying for quashing of their prosecution in Criminal Case No.1206 of 2005, State versus Satish Kumar Tyagi and others, U/S 29 (1) Insecticides Act, 1968,herein after referred to as the Act, pending before Chief Judicial Magistrate, Bijnor. Interim prayer is for stay of trial court's proceedings pendete lite this 482 Application.
(2.) FOR clearing doubts regarding service of summons on the accused and dates of some of the involved factual issues trial court record was also requisitioned and has been perused. Before entering into the merits, background facts reveal that complainant, Anand Singh Chauhan, was working as Insecticide Inspector, District Bijnor since 8.6.2004. One Satish Kumar Tyagi, proprietor of M/s Fasal Suraksha Kendra, Bijnor (Crop Protection Centre, Bijnor) was carrying on business of selling Monocrotophose, a chemical insecticides manufactured by A1 of whom A2 is the Assistant Manager. Wielding power under the Act, on 13.12.2004, complainant, after giving notice in the prescribed FORm -20, as is required u/s 22(5) of the Act, and after paying price for the same and issuing purchase receipt, took sample of Monocrotophose 36%, a pest control chemical, of batch no. 406281250, manufactured on 26.6.2004, by A1, having shelf life till 27.12.2005. Sample was divided into three separate phials and after wrapping it seals were affixed on it's cover mentioning thereon name of Insecticides, name of chemical and date. Two of the samples were retained by the complainant. One sample phial was dispatched to Pesticide Quality Control Laboratory, Varanasi for chemical analysis on 13.12.2004 vide office memorandum No.2863.Pesticide analyst, Varanasi, vide its memorandum/Report No.4495 dated 12.1.2005, declared the sample to be misbranded as he found that AI percentage in the sample was only 27.6%. After receiving analyst report, vide office memorandum No. 2707 information about the same was furnished to A1 and the seller M/s Fasal Suraksha Kendra, Bijnor on 3.3.05. A notice was also given banning future sale of the said insecticide. A notice, Annexure No.1 dated dated 3.3.2005, was also served on the applicants informing them about misbranding of sample and calling them to furnish information regarding stored stock of aforesaid insecticide by A1 and calling for an explaination as to why aforesaid stock be not ordered to be destroyed and it's sale banned U/S 21 (1) of the Act and Rule 30 of Rules framed thereunder. Besides above, additional information regarding details of supply of said insecticides to various whole sellers and retailers was also sought. After receipt of said notice A1 exercising it's legal right U/S 24 of the Act, challenged analyst report and applied for retesting from Central Insecticides Laboratory, Faridabad on 29.3.2005, vide annexure no.2. A1, also expressly intimated that it is ready to bear expenses to be incurred in retesting. How ever nothing happened on that request by A1. Since manufacture and business in misbranded insecticide is an offence U/S 29 of the Act, complainant applied for grant of sanction to launch a prosecution against the accused before the District Magistrate on 14.3.2005, and after the same was accorded insecticide inspector lodged a complaint on 17.3.2005 in the court of Chief Judicial Magistrate, Bijnor, against the applicants and satish Kumar Tyagi, registered as Complaint Case No.1206 of 2005, State Vs. Satish Kumar Tyagi and others in which case accused were summoned by CJM, Bijnor the same day. One legal lacuna committed by C.J.M. required to be pointed out at this stage is that although cognizance should have been taken under Section 190 (1) (a) Cr.P.C. by the Magistrate but his order sheet records that cognizance has been taken on the charge sheet which is, per se, factually incorrect. Original record of trial court surfaces this glaring mistake as the follow up procedure for the two types of cognizance are entirely different. Cognizance on the basis of charge sheet is taken U/S 190(1) (b) Cr.P.C. whereas in complaint case it is taken U/S 190(1) (a). This mistake should not have occurred in the trial procedure, but it should not vex mind of this court any further because of forgoing discussion. Since company applicant A -1 was summoned, it authorized A -2, its Assistant Area Business Manager to represent it in the aforesaid case vide Board of Directors Resolution dated 29.8.2009 and hence both A -1 and A -2 have approached this Court for quashing of aforesaid complaint case.
(3.) IN the background of the aforesaid facts, I have heard Sri A.B. Saran, learned Senior Counsel assisted by Sri Kartikey Saran, advocate for the applicants and learned AGA in opposition. Sri J.S. Rathore, insecticide inspector/Plant Protection Officer, Bijnor and Sri Amar Pal, insecticide inspector have also rendered their assistance. IN support of applicants prayer for quashing learned Senior Counsel harangued two submissions, firstly that Company, in consonance with section 24 (3) of the Act, applied to the insecticide inspector for retesting of sample but he did not forward it's request to the court and, therefore, most valuable right of the accused have been violated and consequently further prosecution of the applicants is unsactified and therefore, continuance of the same will be a futile exercise, since final determination of the trial is known. It was therefore argued that applicant's prosecution be quashed. Second submission of learned counsel is that, although summons were issued against the applicants, but on the original record, there is no proof of service of summons and in absence of thereof, applicants could not gain any knowledge, therefore, entire procedure adopted by CJM is bad in law as entire exercise by CJM is without any application of mind. Primarily on above submissions, it is argued that prosecution of the applicants be quashed. To lend support to his contentions Ld. Sr.Counsel relied upon Apex Court decisions in Northern Mineral Ltd. Vs. Union of India and another 2010 (7) SCC 726, Gupta Chemicals Pvt. Ltd. and others Vs. State of Rajasthan and another 2010 (7) SCC 735, State of Haryana Vs. Unique Farmaid (P) Ltd. and others 1999 (8) SCC 190. He also cited two other decisions of Swasthik Pesticides and Chemicals though Vijay Vs. State of Gujarat:2005 (3) GLR 2027 and Mohinder Singh Chauhan Vs. State of Harayana through Insecticides Inspector: 2004 Cr.LJ 2656. On the strength of the aforesaid decisions and referring to various paragraphs, learned counsel for the applicants submitted that case of the applicants is squarely covered by the aforesaid decisions where under entire prosecution of the accused have been quashed and, therefore, the same law be applied in the case of the present applicants and their prosecution be also quashed.;