- (1.) THIS is an old petition of 1990 for quashing the complaint (Annexure P-1) and the consequent proceedings against the petitioner under Section 482 Cr. P. C. As per the petitioners' case, a sample of Endosulphan 35% EC (Hexasulphan 35% E. C.) manufactured by m/s Bharat Pulverising Mills Limited, New delhi (hereinafter referred as 'the manufacturer')was taken on 3. 8. 1989 from the sealed 1 litre packing, and three samples thereof, each measuring 250 mls. were taken for the purpose of examination. Out of the three samples, one sample was handed over to Ram Partap, petitioner No. 1. The containers of Endosulphan 35% EC are stated to be in sealed condition at the time of taking sample and during the possession of the petitioners, it was properly stored and remained in the same state as when they had been acquired from the licensed manufacturer. One sample was sent to the Central insecticides Testing Laboratory, faridabad, and it was found not to be in conformity with relevant ISI specifications in the active ingredients. On the basis of the report, the Insecticides Inspector filed a complaint under Sections 3 (k) (i), 17, 18, 29 and 33 of the Insecticides Act, 1968 (for short the Act) read with Rule 27 (5) of the insecticides Rules (for short the Rules), punishable under Section 29 of the Act. From the complaint, it appears that the petitioners are the licensee for the purpose of selling insecticides and pesticides. They purchased the said insecticides from the manufacturer and distributor 'm/s. Bharat pulverising Mills Limited, New Delhi', who issued a letter of warranty to the firm. According to the petitioners, it has been admitted by the Insecticides Inspector that at the time of taking the sample, container of endosulphan 35% EC of 250 ml. each was sealed. The said averments also find support from the report of the Central Insecticides testing Laboratory, Faridabad which shows that the sample was found to be intact and it was sealed. The petitioners have stated that they are the licensee for the sale of insecticides and the sample was taken by the Insecticides Inspector from the premises of the licensee firm. They have contended that they are not liable for any offence for contravention of the provisions of the Act and the rules framed thereunder inasmuch as they were merely licensee and had acquired insecticide from a licensed manufacturer/distributor. Even by exercising of due diligence, they could not have come to know that the insecticides have been sold in contravention of the provisions of the Act or the rules and while being in their possession, there was breach of any provision. According to the petitioners, they being a licensee are protected under Section 30 (3) of the Act. They have asserted that they are neither importer or the manufacturer of the insecticides or the agents but are a licensee for the purpose of selling the insecticides and for the purpose of stocking or exhibiting for sale or distribution by way of retail insecticides. On that count they have challenged the launching of the prosecution. They have also mentioned that in the complaint or in the statement made by the prosecution witnesses, there is no such averment that petitioner no. 1 committed any offence with the consent or connivance of, or is attributable to any negligent act on the part of any director, Manager, Secretary or other officer of the manufacturing company. Rather the petitioners were only a licensed dealer for selling insecticides and the said item was purchased from a licensed manufacturer It is also averred that the petitioner firm m/s Chiranji Lal Lakhmi Chand is a partnership firm, consisting of eight partners, namely, Sarv Shri Ram Partap, Chiranjeet lal, Abinash Chander, Smt. Anguran Devi, mohan Lal, Ramesh Kumar, Mohinder kumar and Satish Kumar. In case the offence has been committed by the firm, it was incumbent upon the complainant to point out as to who was the partner being in charge of, or was responsible to the firm for conduct of the business of the company as well as the company, at the time of the alleged contravention. In the complaint, there was no such allegation. According to the petitioners, under the circumstances, the complaint is an abuse of process of law. In support, petitioners have reiterated provisions of Section 33 (1) of the Act. This is also an averment of the petitioners that despite their request to the Court for sending the sample for re-analysis, no order was passed, therefore, the proceedings are liable to be vitiated.
(2.) ON the other hand, State of Punjab in its affidavit has supported the prosecution. It is mentioned in the reply that the Insecticides inspector took the sample in three dry and neat plastic bottles from one litre pack. He took the sample according to the provisions of the Act. While admitting that the petitioners are licensee, the respondent state has denied knowledge as to whether letter of warranty was issued to the petitioners by the company. The State has also mentioned that the Insecticides Inspector has nowhere mentioned that he had taken sample of 250 Mls. from sealed container of insecticide. The report of the Central Insecticides testing Laboratory only indicated that the metal seal of the department used to seal the insecticides sample was intact. The State has also referred to an order of a learned Single Judge in Criminal M. No. 1298-M of 1989 decided on 5. 10. 1989, which reads as under :-"the next limb of the arguments advanced on behalf of the petitioner that a dealer is not liable for contravention of any provisions of the Act in case he complies with the conditions and clauses (a) to (c) of sub-section (3) of section 30 of the Act, are without any merit. The opening words of sub-section (3)of Section 30 of the Act do indicate that "a person not being an importer, or a manufacturer of an insecticide or his agent for the distribution thereof shall not be liable for the contravention of any provision of this Act. " in order to seek protection according to clause (a) of sub-section (3) of Section 30 of the Act it is obligatory to fulfill either of the three preconditions. One such precondition is that the person concerned should have acquired insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof. This connotes that the dealer himself cannot seek protection for contravention of the provisions of the Act as contemplated under sub-section (3) of Section 30 of the Act. I am further supported on this point from the definition of the dealer given in Insecticides (price, stock, display and submission of reports) Order, 1986 which means a person carrying on the business of selling insecticides whether wholesale or retain and includes an agent of a dealer as well as its definition given in Fertilizer Control Order, 1985, which means a person carrying on the business of selling fertilizers whether wholesale or retail and includes a manufacturer and a pool handling agency carrying on such business and the agents of such persons, manufacturer or pool handling agency. For the foregoing reasons, the complaint (Annexure P-2)or the subsequent proceedings against the petitioner on the basis of said complaint are not liable to be quashed. This petition is accordingly dismissed. "
(3.) IT is further mentioned that petitioner no. 1 Ram Partap was present at the time of sample and he signed Form XII. All the partners are responsible for profit and loss of the firm, hence, they are liable for punishment. It is also pointed out that petitioner no. 1 Ram Partap was present at the time of sampling and he was the in charge of the sale proceeds. According to the State affidavit, a dealer does not fall in a category under Section 33 (i) of the Act and it applies only to the companies. It is also mentioned on the basis of analysis report that the firm sold this misbranded insecticide to the farmers. The State has also mentioned that as the sample had already been sent to the central Insecticides Testing Laboratory under Section 24 (5) of the Act, therefore, it could not have been sent for re-analysis.;