THAKAR CHEMICALS Vs. STATE OF HARYANA

JUDGEMENT

(1.) M /s Thakar Chemicals through its partner Shri Sant Lal have filed the present petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing of the complaint under Section 29 of the Insecticides Act and for the quashment of the subsequent proceedings and the case set up by the petitioners is that M/s Thakar Chemicals is a partnership concern and Shri Sant Lal, petitioner No. 2 is one of its partners. For the purpose of manufacturing different types of the insecticides this firm has obtained manufacturing licence from the Central Insecticide Board, Government of India, Ministry of Agriculture, New Delhi. It is stated that on 25.6.1994 Quality Control Inspector visited the premises of the petitioners and drew two samples of Methyl Parathion 50% EC and Malathion 50% EC. All the two samples drawn from the premises of the petitioners were sent to the Senior Analyst, Quality Control Laboratory, Karnal. As per analysis report, one sample of Methyl Parathion 50% EC, batch No. 52, manufacturing date April, 1994 and expiry date March, 1995 was declared misbranded as the active ingredients were found to the extent of 45.16% instead of 50% . The other sample of Malathion 50% was found within the specifications. The copy of the analysis report was sent to the petitioners by the Deputy Director, Agriculture, Rohtak vide letter No. 4943 dated 27.7.1994. The petitioners vide letter dated 17.8.1994 replied to the department that they are maintaining the quality and they are not satisfied with the report of the analyst and made a specific request to send the second sample to some other laboratory for re- testing and the result of the Karnal laboratory shall not be treated as conclusive. The grouse of the petitioner is that without sending the second sample for reanalysis to the Central Insecticide Laboratory, the present complaint has been filed against the petitioners by the department in the court of Sub Divisional Judicial Magistrate, Bahadurgarh on 10.4.1995. As per allegations of the complaint, the manufacturing date of insecticide was April, 1994 and its expiry date was March, 1995. The complaint was filed on 10.4.1995. By the time the complaint was filed in the Court, the shelf life of the sample had already expired and there was hardly any time with the petitioners to make a request to the Court for sending the second sample for reanalysis to the Central Insecticide Laboratory. Thus the valuable right conferred under the Insecticides Act for getting the sample re-analysed from the Central Insecticide Laboratory has been denied to the petitioners without any fault on their part and launching of prosecution is clearly an abuse of the process of the court and is liable to be set aside. The petitioners were denied the opportunity of (controverting) the correctness of the report of the Senior Analyst by forwarding the counter-part of the sample to the Central Insecticide Laboratory. The right of the petitioners under the Act has been violated by inaction and omission on the part of the department and as such is fatal to the prosecution. The valuable right granted to the petitioners has been taken away by the department and this act on the part of the department has pre-judiced the rights of the petitioners. In para No. 6 of the petition it has been pleaded that the complaint is also liable to be quashed as there was non-compliance of the provisions of Section 33 of the Insecticides Act. The complaint has been filed against M/s. Thakar Chemicals through Shri Sant Lal and every person, who at the time of the commission of the alleged offence was responsible, ought to have been impleaded as a party and therefore, the complaint was not maintainable against the petitioners. With the above averments the petitioners have prayed for the quashment of the complaint and the consequential proceedings including the summoning order.

(2.) NOTICE of the petition was given to the respondent. The State has filed the reply and denied the allegations. So far as the taking of the sample is concerned, this part of the case is admitted. The petition has been contested mainly on the ground by the State that the petitioners by their own act and conduct waived the opportunity and did not approach the competent court of law and therefore, they have no cause of action to invoke the jurisdiction of this Court under Section 482 Cr.P.C. On merits the defence of the State is that vide letter dated 25.8.1994 it was duly intimated to the petitioners to approach the competent court of jurisdiction under Section 24(4) of the Insecticides Act to get the permission of the Court for retesting of the sample. However, the petitioners have not availed this right and therefore, they came to the High Court for the quashment of the complaint and the subsequent proceedings.

(3.) FIRST of all, I would like to deal with the second ground of attack which has been taken up by the petitioners for the quashment of the complaint and the resultant proceedings, which was to the effect that each partner of the partnership firm is supposed to be impleaded as party to the complaint. In the view of this Court this ground made out by the petitioners in the petition is prima facie untenable because every partner is an agent of the partnership firm. No doubt the partnership firm is not a legal entity like a company, yet petitioner No. 2 Shri Sant Lal being the partner of petitioner No. 1 can be prosecuted.