HINDUSTAN PALVERISING MILL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PRESENT petition has been filed under section.482, Cr.P.C., read with Article 227 of the Constitution of India, for quashing the complaint filed under 3(K)(1),17,18, 29 and 33of the Insecticides Act, 1968, read with Rule 10 of the Insecticides Rules, 1971, with all consequential proceedings arising out of the said complaint.

(2.) IT has been inter alia pleaded by the petitioners that petitioner No. 1 is manufacturing company and is manufacturing different types of insecticides and pesticides. Shri Prem Parkash Aggarwal is the Managing Director of the company, whereas petitioners Nos. 2 and 3 are the Directors for the Company and petitioner No. 4 is an employee of the Company. As per allegations made in the complaint, the Insecticides Inspector, Jandiala Guru (Amritsar) inspected the premises of M/s. Chatrath Pesticides, G.T. Road, Tangra, District Amritsar, who is the dealer of the petitioners, on 25.11.1992. The Insecticides Inspector took sample of Isoproturon 75% WP bearing batch No. T-79. Its date of manufacture was November, 1992 and the date of expiry was October 1994. This spray was manufactured by petitioner No. 1-Company. After taking the sample, one sample was handed over to the dealer, one sample was sent to the Insecticide Testing Laboratory, Bathinda, and the third sample was kept in the office of the Chief Agricultural Officer, Amritsar. On analysis the Insecticide Analyst sent the report vide which the sample was found misbranded as the same did not conform to ISI specifications since it contained 70.81% active ingredients against the percentage of 75. On that basis the present complaint was filed against the dealer, distributor and the petitioners on 18.10.1994. After the receipt of the report of the Insecticide Analyst, the Chief Agricultural Officer-cum-Licencing Officer, Amritsar, gave a show cause notice dated 19.7.1994 informing the petitioners that the sample was found misbranded and the petitioners were asked to give their explanation why action should not be taken against them for the violation of the provisions of Insecticides Act. In response to the show cause notice, the petitioners sent reply dated 26.7.1994 and it was received in the office of the Chief Agricultural Officer on 29.7.1994. In the reply the petitioners denied the report of the Insecticides Analyst and requested to the Chief Agricultural Officer to send the sample for re-analysis to the Central Insecticides Laboratory as provided under Section 24(3) and (4) of the Insecticides act, 1968 (for short 'the Act'), as the petitioners were not satisfied with the report of the Insecticides Analyst. In spite of the specific request made by the petitioners to the authorities, as referred to above, the same was not considered. Rather the complaint was filed against the petitioners on 18.10.1994 and the petitioners were ordered to be summoned on 15.12.1994. The case of the petitioners is that by the time the petitioners were summoned by the Court, the shelf life of the sample had already expired and there was hardly any time left with the petitioners to make a request to the Court for getting the sample re-analysed from the Central Insecticides Laboratory. The complaint should have been filed well in time before the expiry of the shelf life to enable the petitioners to challenge the correctness of the report by forwarding the counterpart of the sample to the Central Insecticides Laboratory. This right of the accused has been violated on account of the inaction or omission on the part of the Department and it is fatal to the prosecution. According to the petitioners, their valuable rights have been taken away without any fault on their part and the complaint had been filed at a belated stage in order to prejudice the rights of the petitioners. With the passage of time the active ingredients are bound to deteriorate and no purpose would be served after the expiry date of the sample when there was an ample opportunity with the respondents to file the complaint in time. The filing of the complaint and the continuation of the proceedings is an abuse of the process of the Court. It has also been pleaded by the petitioners that the sample was taken on 25.11.1992. The report of the Insecticides Analyst was received on 14.12.1992. The present complaint was filed on 18.10.1994, i.e., after more than one year and ten months from the receipt of the report of the Insecticides Analyst and the case was being adjourned for one reason or the other and even the charge has not been framed. The punishment prescribed under the Act is two years and none of the petitioners is a previous convict and as such the present petition is barred by time. The present complaint has been filed against the Managing Director/Directors/employee of the Company. There are no allegations against them to the effect that they were incharge of the affairs of the Company and responsible to the Company for the conduct of the business.

(3.) I have heard Shri Ravinder Chopra, Advocate, on behalf of the petitioners, and with his assistance I intend to dispose of the petition at the motion stage itself as in the opinion of this Court, the present petition contains some mixed questions of law and fact which cannot be thrashed under Section 482, Cr.P.C. and the pleas now taken up by the present petitioners can be well agitated before the trial Magistrate, who has summoned the present petitioners. In this regard I am fortified by the judgments of this Court as well as the judgment of the Hon'ble Supreme Court. In The Janta Dal v. H.S. Chowdhary and others, AIR 1993 S.C. 892, Hon'ble the Supreme Court was pleased to hold that the inherent powers under Section 482, Cr.P.C., should not be exercised to stiffle the legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. It is an admitted case that the sample in this case was taken on 25.11.1992. One parcel of the sample was sent to the laboratory and it was found to be sub- standard. The sample was taken from the possession of the dealer. The dealer must have been informed. It is a disputed point whether the dealer informed the manufacturer of the Company about the sample having been taken by the Insecticides Inspector or not. This point can be gone into by the trial Court itself. The petitioners were also informed about the result on 19th July, 1994 by the Chief Agricultural Officer that the sample had failed. Reply was filed by the petitioners on 26.7.1994 much before the expiry period of the insecticide which was going to expire in October 1994. At no point of time the petitioners ever requested the Court for the re-analysis of the sample which was in possession of the Chief Agricultural Officer. The main plank of the argument of Mr. Ravinder Chopra, learned counsel for the petitioners, is that no proceedings were pending before the Court and, therefore, it was not open for the petitioners to make such a request. This argument can be met in two ways. The complaint in this case was filed on 18.10.1994. The life of the insecticide was going to expire by October, 1994. Had the petitioners made some efforts, they could have approached the Court in the month of October, 1994 itself for sending the sample for analysis. No doubt the petitioners were summoned for 15.12.1994 and at that time the shelf life had expired. Whether the benefit of this thing can be granted to the petitioners or not is a mixed question of law and fact which has to be thrashed out by the trial Court itself. It is well settled by now that the purpose of exercising powers under Section 482, Cr.P.C., is an extraordinary in nature and the High Court has to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In State of Bihar and another v. Shri P.P. Sharma and another, AIR 1991 S.C. 1260, their Lordships of the Supreme Court were pleased to hold that whether the offence has been committed or not, cannot be decided by affidavits nor the High Court can take short course in annihilating the still born prosecution by going into the merits on the plea of proof of prima facie case and advert to those facts and give findings on merits. It was further clarified in this authority that grossest error of law would be committed by the High Court in making a pre-trial of a criminal case in exercising its extraordinary jurisdiction under Article 226 of the Constitution of India. In State of Haryana and others v. Ch. Bhajan Lal and others, 1991(1) R.C.R. (Crl.) 383 : AIR 1992 S.C. 604, the Hon'ble Supreme Court has further laid down that F.I.R. or the compliant can be quashed only when the allegations made in the F.I.R. or the complaint along with other materials therewith do not prima facie constitute an offence or make out a case against the accused or where the allegations made in the F.I.R. or the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. The present petitioners are the manufactures, Managing Director/Director and the employee. Their criminal liability can be thrashed only by the Magistrate. Prima facie offence is made out once it is held that the sample seized from the dealer was found to be misbranded. In the present case whether the petitioners had the knowledge of the seizure of the sample and whether they were informed by the dealer or not, these are questions of fact which are supposed to be thrashed by the trial Magistrate. The petitioners cannot pass on their liability in a convenient manner by simply stating that they came to know for the first time of the their rights on being summoned by the Magistrate. In M/s. Jai Chemicals v. State of Punjab, 1996(1) R.C.R. 412, this Court also held that when prosecution is sought to be quashed by the petitioners on the grounds that no proper sanction for prosecution was obtained; that show-cause notice and copy of the analyst's report was not supplied; and that the sample was not taken in accordance with the provisions of law; the said pleas involve pure questions of law and fact and cannot be decided on affidavits and, and, therefore, the quashment of the proceedings under Section 482, Cr.P.C. sought for by the petitioners, were declined. The above case law if read along with the judgments of the Hon'ble Supreme Court, leave only conclusion that the present petition under Section 482, Cr.P.C., cannot be allowed.