H.S.BRAR, J. - (1.) IN this petition under section 482 Cr.P.C. read with Article 227 of the Constitution of India, the petitioners seek quashment of complaint annexed as Annexure P-2 with the petition on various grounds including the one that the consent/sanction much less a proper sanction which is sine qua non under Section 31(1) of the Insecticides Act, 1968 (hereinafter referred to as the Act), to prosecute the petitioners has not been taken. The alleged consent/sanction order which is annexed as Annexure P-3 with the petition, reads as under :- "Whereas I am satisfied from the perusal of the relevant record placed before me of M/s Sat Paul Rajinder Kumar regarding committing of a breach of the provisions of the Sections 3(k) 17, 18, 29 and 33 of Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules 1971 by M/s Sat Paul Rajinder Kumar Sunam. Now, therefore, in exercise of the powers conferred upon me under Section 3(1) of the Insecticides Act, 1968 vide Pb. Govt. Notification No. 15/5/86-Agi. II(8) 9264 dated 23 June, 1986, 1, Dr. Balkaran Singh, Joint Director of Agri(ICDP) give consent/sanction for instituting prosecution against M/s Sat Paul Rajinder Kumar Sunam and others M/s Greedgold Chemico, Faridabad."
(2.) THE learned counsel for the petitioners states that as the alleged consent/sanction has been given in a mechanical manner without application of mind and on a cyclostyled form and there is no mention of the contents of the report of the Analyst in the consent and the consent order does not refer to the name of the petitioners Hitler Kumar and Sunil Kumar, it only refers to M/s Sat Paul Rajinder Kumar, Sunam and others. At the best, according to the counsel, the consent could be considered for the prosecution of M/s Sat Paul Rajinder Kumar, Sunam. Hitler Kumar and Sunil Kumar could not be prosecuted. Without there being specific consent for their prosecution. Their prosecution is thus wholly without jurisdiction and without the authority of law. Even in the complaint, annexure P-2, the name of Sunil Kumar is not mentioned at all. The name of Hitler Kumar is mentioned only indicating that the sample was taken in the presence of Hitler Kumar. It is not mentioned even about Hitler Kumar and Sunil Kumar as to whether they were incharge of or were responsible to the said firm for the conduct of its business. Learned counsel for the petitioners thus submits that the complaint qua the petitioners Hitler Kumar and Sunil Kumar and further proceedings in consequence thereof are nothing but an abuse of the process of the Court and are thus liable to be quashed. I have heard the learned counsel for the parties and have gone through the complaint as well as the written consent/sanction order attached with the petition. Sub-section (1) of Section 31 of the Act clearly mandates that no prosecution for an offence under this Act shall be instituted except by or with the written consent of the State Government or person authorised in this behalf by the State Government. The written consent/sanction under Section 31(1) of the Act has been reproduced above and has also been annexed as Annexure P-3 with the petition, A reading of consent/sanction order Annexure P-3 reveals that the consent/sanction is not against Hilter Kumar and Sunil Kumar. The name of Sunil Kumar is not mentioned in the complaint and the name of Hitler Kumar is mentioned in the complaint only in reference to the seizure of the sample in his presence. It is not stated in the complaint as to whether he was incharge of or was responsible to the said firm for the conduct of its business. In case of Lachhi Ram v. Inspector Insecticides, Ganganagar, 1990 Cr.L.J.N.O.C. 93, it was held that the individual partners of the firm cannot be prosecuted unless there may be some nexus between them and the commission of the crime. This aspect of the case is required to be considered by the authority giving the consent. The authority competent to give consent is required to apply its mind as to who is the proprietor of the firm. The application of mind is not only required to be made as to what offence is committed, but also as to who committed the same and who is to be prosecuted. There is no proper appreciation of the facts before the sanction to prosecute was granted. The following authorities are relevant to mention for this proposition : Raghbir Chand v. State of Punjab, 1993(1) RCR 111, J.P. Somai, Company Secretary v. Charan Singh Bhullar, Insecticide Inspector, 1992(2) RCR 229. Gian Chand v. State of Punjab, 1994(2) RCR 114 and D.N. Chaturvedi v. State of Punjab, 1994(2) RCR 133. As the petition is likely to be accepted only on one ground that there was no proper consent/sanction in the case in hand to prosecute the petitioners Hitler Kumar and Sunil Kumar, there is no need to go into the other questions raised by the learned counsel for the petitioners for quashing the complaint.
(3.) IN these circumstances, to proceed against the petitioners Hitler Kumar and Sunil Kumar on the basis of the complaint and the written consent/sanction, which, according to me, is not valid, shall certainly be an abuse of the process of the Court, l, therefore allow this petition and quash the complaint Annexure P-2 as well as the further proceedings, if any, arising therefrom. It may be stated that the respondent authorities are at liberty to proceed against the petitioners after taking proper consent/sanction according to law, if so advised.;