M. C. JAIN, J. - (1.) LACHHI Ram and Mohanlal have presented this application under sec. 482, Cr. P. C. , for quashing the proceedings against them under sec. 18 (2)/29 of the Insecticides Act, 1968 (46 of 1968) (hereinafter referred to as 'the Act') on a complaint presented by Habans Singh, Insecticides Inspector before the Chief Judicial Magistrate, Sri Gangangar.
(2.) BRIEFLY, the prosecution case, as stated in the complaint is that the accused persons, namely, Thakur Dass, Lachhi Ram son of Thakur Dass, Shyam Sunder son of Thakur Dass, residents of Sri Ganganagar for firm Thakur Dass and Sons and the accused Mohanlal are carrying on the business of sale of insecticides at shop No. 168, Jawahar Market, Sri Ganganagar, for which they have no licence, though they had licence to carry on the said business at shops Nos. 211 and 212, Railway Road, Sri Ganganagar. There was a sign-board for the sale of insecticides outside the shop No. 168. The complainant visited shop No. 168 on 13-9-1976 and found insecticides medicines displayed for sale. On inquiry from the sales man, it was found that the shop is of Messrs. Thakur Dass and Sons. After some time the sales man called Lachhi Ram son of Thakur Dass, who also informed that the shop is of Messrs. Thakur Dass and Sons and produced licence No. 18. The said licence was not for shop No. 168. Thus, there was a contravention of the licence punishable under sec. 29 (3) of the Act. Before presenting the complaint a written consent was obtained from the Dy. Director (Plant Protection), Rajasthan, Jaipur, who is a person authorised by the State Government under sec. 31 (1) of the Act. This consent was for the prosecution of Messrs. Thakur Dass and sons. A point was raised before the Chief Judicial Magistrate that the consent obtained under sec. 31 of the Act is invalid inasmuch as the consent was not obtained against the accused persons, but was only obtained against Messrs. Thakurdas and Sons. The learned Chief Judicial Magistrate, after hearing the parties, held that the prosecution of Lachhi Ram, Mohanlal and Thakur Dass, prima facie, appears to be proper. It may be mentioned that during the pendency of the case Thakur Dass expired. However, the learned Magistrate found that Shyam Sunder is in no way associated with the business and is not shown ! to be a partner, so no prima facie case is made out against him. Accordingly, he was discharged. Lachhi Ram and Mohanlal, being aggrieved against the order of the Chief Judicial Magistrate, have filed this application. It may also be mentioned that a question of limitation for instituting the complaint was also raised before the Chief Judicial Magistrate by the accused persons, but that objection has not been raised before me and the learned counsel for the applicants submitted that in this regard objection will be raised, if necessary, after recording of the evidence. Thus, I need not consider the question of limitation in the present application. Now I take up the main point in controversy in the present application. The controversy, which arises for consideration, is as to whether the present applicants Lachhiram and Mohanlal can be prosecuted on the basis of the consent issued by the Deputy Director, Plant Protection, Rajasthan, Jaipur, which is for the prosecution of Messrs. Thakur Dass and Sons ? Shri B. R. Arora, learned counsel for the applicants, submitted that under sec. 31 of the Act it is a condition precedent that there should be a written consent for the prosecution of an offence under the Act in the circumstances of this case. This provision is analogous to the provision of sec. 20 of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Adulteration Act') and the provision of the Adulteration Act has come up for interpretation in various decisions of the Supreme Court and the High Courts. According to the well established position emerging from those decisions, there should be application of mind by the authority giving the written consent, to the facts of the case and thereafter the consent is to be accorded and the consent has not been considered to be an empty formality. In the present case, on perusal of the written consent issued by the Deputy Director, Plant Protection, Rajasthan, Jaipur, it would be obvious that the Authority issuing the consent only gave consent for prosecution of the firm and not its partners or any other person responsible for the commission of the alleged offence. He urged that sec. 33 of the Act, no doubt, deals with offences by companies and the word "company" includes a firm, and the word "directotr" means a partner in the firm, but sec. 33 deals with as to and in what circumstances persons connected with the business of the company or the firm can be held responsible for the alleged offence. The question of consent has to be dealt with independently of sec. 33 and persons who are responsible under sec. 33 can only be prosecuted after obtaining written consent under sec. 31 of the Act. In support of his contention, the learned counsel placed reliance on a Division Bench decision of the Calcutta High Court Lab Chand Chhagar vs. The Sanitary Inspector, Saler (1 ). He also placed reliance on certain observations of his Lordships Chhangani, J. , in a case Bijal Lal vs. State (2 ). The learned Public Prosecutor, on the other hand, submitted that the partners of the firm can be prosecuted even when consent is against the firm. He urged that under sec. 31, the requirement is only this that there should be a written consent by the State Government or by a person authorised in this behalf by the State Government for prosecution for an offence under the Act. He submitted that there is a consent issued by the competent authority in the present case against the firm and in pursuance of such a consent, those who are responsible for the commission of the offence under section 33 can be prosecuted. It is not necessary that all those persons who are responsible under sec. 33, for them consent under Sec. 31 is a prior condition. He referred to some decision in which partners and their firm have been prosecuted and it has been examined as to whether the individuals can be held guilty under sec. 33 and from those decisions he submitted that had there been a question of consent involved in those cases, such a point would have been raised. He also referred to some decisions wherein firm has not been prosecuted and it has been held that the prosecution of the partners is bad and they cannot be held guilty. His main emphasis is that the question of consent should be examined in substance and not in its form. When consent has been issued against the firm it implies that it is a consent against all the partners of the firm and so the partners of the firm can be prosecuted under the consent obtained against the firm. The learned Public Prosecutor also raised an objection that at the present stage of the case, it would not be proper for this Court to quash the proceedings in exercise of its inherent powers under sec. 482, Cr. P. C. Before dealing with the respective contentions of both the sides it would be proper to have a glance at the provisions of secs. 31 and 33 of the Act, which, for the facility of reference, I reproduce as under : - Cognizance and trial of offences. "31. (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a person authorised in this behalf by the State Government. (2) No court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence under this Act. " Offences by companies. "33. (1) Whenever an 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 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 his knowledge of 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. "
(3.) ON perusal of the above provisions, it would be clear that section 31 bars institution of prosecution for an offence under the Act unless the prosecution is by the State Government or by a person authorised in this behalf by the State Government or with the written consent of the State Government or with the written consent of a person authorised in this behalf by the State Government. Section 31 (1) is couched in the negative language. Whenever any prosecution is made, not by the State Government or by a person authorised in this behalf by the State Government, the condition precedent is, that there should be a written consent of the State Government or a person authorised in this behalf by the State Government. Unless there is such written consent, cognizance of offence cannot be taken by the court. The provision of according of written consent has a certain aim behind it and that appears to be, pre-vension of frivolous prosecutions. The authority issuing consent will examine the facts of the case and if in its opinion the, case is found fit and proper for the prosecution, the authority will accord necessary consent. I shall be dealing with the cases in which similar provisions under the Adulteration Act have come up for consideration. As regards section 33 of the Act it may be stated that it deals with the offence by the companies and the explanation to section 33 explain the words "company" and "director". According to this explanation it can be taken that section 33 deals with offences by the firms and their partners. According to section 33 of the Act, whenever any offence is committed by the company, this section provides that 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, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. It would appear from this provision that only those persons who are incharge of the business or who are responsible for conduct of the business can be proceeded against and not others. It does not lay down that those who are not incharge of the business or those who are not responsible for the conduct of the business, will be deemed to be guilty and can be proceeded against. The proviso to sub-section (l ). of section 33 further saves such persons connected with the company or the firm who prove that the offence was committed without their knowledge or that they exercised all due diligence to prevent the commission of the offence. ! Sub-section (2) further provides liability of persons mentioned therein and it is in the nature of an over-riding provision to what is contained in sub-section (1 ). Sub-section (2) provides that where an offence 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, then they should also be deemed to be guilty. Thus, section 33 deals as to who can be held responsible when the offence is committed by the company besides the company itself and as to when persons connected with the business of the company can save themselves from being held guilty of the offence. In sub-sections (1) and (2) of section 33 we find the expression "shall be liable to be proceeded against". The question will arise, thus, whether consent will be needed for those who are liable to be proceeded against under section 31, which bars prosecution without consent. It is true that sections 31 and 33 require conjoint reading and on such conjoint reading, it is to be found as to whether consent against the firm is sufficient compliance of the provisions of section 31 with regard to the persons who are individually responsible for the commission of the offence under sec. 33 of the Act. Sections 31 and 33 of the Act are analogous to secs. 20 and 17 of the Adulteration Act respectively. I need not reproduce these two provisions of the Adulteration Act, for it may be stated that these two provisions are couched in the same language as we find in sections 31 and 33 of the Act, except that there is a proviso to sub-section (1) to section 20 of the Adulteration Act which confers a power on a purchaser for prosecution for an offence under the Adulteration Act, if he produces in court a copy of the report of the public analyst along with the complaint. Else, it can be said that so far as these provisions are concerned, the Adulteration Act is a statute in pari materia and the decisions relating to these provisions of the Adulteration Act may be helpful for interpreting and construing sections 31 and 33 of the Act. ;