UNIKIL PESTICIDES, (P) LTD. Vs. STATE OF HARYANA

JUDGEMENT

(1.) BUDH Ram Bishnoi, complainant, was appointed as Quality Control Inspector in the State of Haryana vide order dated 26.7.1991. The Quality Control Inspectors were notified as Insecticide Inspectors under Section 20 of the Insecticide Act 1968 (hereinafter referred to as 'the Act') vide notification dated 28.3.1986. In the capacity of the Insecticide Inspector, the complainant inspected the premises of M/s Suresh Trading Company, Nathursari Chopta, accused No. 1 and drew three samples of Fenvalerate 20% EC manufactured by M/s Unikil Pesticides (P) Ltd Petitioner No. 1/accused No. 3, which were packed and sealed in accordance with the provisions of the Act. One part of the sample was sent to Senior Analyst, Quality Control Laboratory, Karnal, for analysis and one part of the sample was handed over to accused No. 1 and the third part of the sample was kept in the office of the complainant. After analysis, it was reported by the said laboratory that it contained only 8.63% of Fenvalerate against 20% whereas the permissible variation was + -5% and as such the sample was misbranded. One copy each of the test report was supplied to accused No. 1 and Petitioner No. 1, vide letter dated 7.11.1994. Accused No. 1 submitted an application in the Court of Chief Judicial Magistrate Sirsa on 12.12.1994 for re -testing of the referee sample and that referee sample was deposited in the Court of Chief Judicial Magistrate, Sirsa and sent to Central Insecticides Laboratory, Faridabad. On testing of that sample, it was conveyed by that laboratory that the same did not conform to the relevant specifications in the active ingredient content requirement and as such it was misbranded. Thus, accused No. 1 by selling that misbranded insecticide and Petitioner No. 1 being the manufacturer of that insecticide violated the provisions of Section 17(1)(a) of the Act and as such committed the offence under Section 29(1) of the Act. Before filing the complaint consent order was passed by Director Agriculture, Haryana, who gave his consent for launching the prosecution against all the accused. As the complaint was filed by public servant in the discharge of his official duties, so accused were summoned without recording any preliminary evidence. On their appearance in the trial Court, the arguments were heard by the Chief Judicial Magistrate on the question of charge. Accused No. 1 and Ram Chand accused No. 2, who were arrayed as responsible persons of the dealer, were discharged whereas Petitioner No. 1 and Shashank Bhargav, who was arrayed as accused No. 4 being the Managing Director of Petitioner No. 1 were charged for the offence under Section 29(1) of the Act. They pleaded not guilty to the charge and claimed trial. To prove their guilt, complainant examined himself as PW2 and Anil Kumar Kaushik PW1. After the evidence was closed by the complainant, accused No. 4 was examined and his statement was recorded under Section 313 Code of Criminal Procedure The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He was called upon to enter on his defence, but he did not produce any evidence in his defence. After going through the evidence so produced on the record and hearing learned Counsel for both the sides, the learned Chief Judicial Magistrate, Sirsa, convicted the Petitioners/accused for the offence under Section 29(1) of the Act vide judgment dated 4.5.2001 and sentenced them as under:

(2.) THE Petitioners/accused preferred an appeal against that conviction and sentence but the same was dismissed by Additional Sessions Judge, Sirsa, vide judgment dated 20.9.2005. The present revision has been preferred against that conviction and sentence.

(3.) IT has been submitted by learned Counsel for the Petitioners/accused that Petitioner No. 2/accused No. 4 could not have been prosecuted in the absence of any averment in the complaint that he was in - charge of or was responsible for the conduct of the business of Petitioner No. 1/accused No. 3 -company. Even no evidence was produced to that effect. That itself is a ground for the acquittal of that accused. In support of that submission, he relied upon the judgment of our own High Court Shabbir Itarsi and Anr. v. State of Haryana, 2005 (1) RCR 31. He further submitted that the consent order passed by the Director Agriculture for prosecution of the accused is no order in the eyes of law as it was not a speaking order and it does not reveal that the Director applied his mind to the facts of the case before giving his consent. The accused could not have been prosecuted on the basis of such a consent order. He also submitted that the procedure adopted by the Inspector Insecticide was defective inasmuch as the second part of the sample, which was required to be deposited in the Court immediately after taking of the sample, was never so deposited, which caused prejudice to the accused. That is also a ground for acquittal of the accused. In the last, he has submitted that when the second part of the sample was sent to the Central Insecticide Laboratory, the percentage of the Fenvalerate was found to be 14.3% against the specification of 20% whereas the other laboratory had found Fenvalerate to be 8.63%. There should not have been such a variation in case the samples had been taken at the same time, that itself creates a doubt in the prosecution case. He prayed for acquittal of the accused.