BASF INDIA LTD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Aggrieved by the continuation of the proceedings in Criminal Case No. 56/2008, pending before the Chief Judicial Magistrate, Bundi, for offence under Section 29(1)(a) of the Insecticides Act, 1968 ('the Act', for short), the petitioners have approached this Court. In brief the facts of the case are that on 22nd July, 2005, the Insecticide Inspector - cum - Assistant Director of Agriculture (Plant Protection) went to the premises of M/s. Gautam Krishi Sewa Kendra, at Taleda, in District Bundi, the petitioner No. 3, and took samples of a herbicide called IMAZETHAPYR 10% SL. The said herbicide was manufactured on 15.06.2005 and was due to expire on 14.06.2007. On 01.08.2005, a sample of the said herbicide was sent to the Regional Pesticides Testing Laboratory, Chandigarh. Vide report dated 03.04.2006, the Laboratory informed the Assistant Director of Agriculture that the active ingredient was only 8.3% instead of 10% as claimed in the herbicide. Thus, the said herbicide was misbranded. On 05.06.2006, a show cause notice was issued to the petitioner No. 3. Vide reply dated 19.06.2006, the petitioner No. 3 informed the Assistant Director of Agriculture that, in fact, the said herbicide was manufactured by BASF India Ltd., the petitioner No. 1. They further informed that they had bought the said herbicide from the Distributor, M/s. Jain Agencies situated at Gulabbari, Ladpura, Kota, (the respondent No. 2 before this Court). Lastly, they claimed that they questioned the veracity of the report of the Laboratory. Therefore, a chance should be give to them to have the sample tested by an independent laboratory. Upon a request made by the petitioner No. 3, a sample was sent to the Central Insecticides Laboratory, Faridabad. Vide report dated 25.08.2006, the said Laboratory claimed that the active ingredient was only 9.02% and not 10%. Since the herbicide was manufactured by the petitioner No. 1, since it was distributed by respondent No. 2 and since it was sold by petitioner No. 3, the petitioner Nos. 1 to 4 and respondent Nos. 2 and 3 were sought to be made accused in a complaint to be filed against them. Therefore, the Insecticide Inspector sought a sanction against them from the Joint Director of Agriculture (Plant Protection). Vide order dated 30th July, 2007, the Joint Director of Agriculture issued the sanction order for the prosecution of the petitioners and respondent Nos. 2 and 3. Eventually, on 11.02.2008, a complaint was filed against the petitioners and respondent Nos. 2 and 3 for offence under Section 29(1)(a) of the Act. It is essential to note that the complaint was filed much after the shelf life of the herbicide had expired on 14.06.2007. But despite this fact, the trial court is continuing with the trial. Hence, this petition before this Court.

(2.) Mr. Reashm Bhargava, the learned counsel for the petitioners, has raised the following contentions before this Court: firstly, the sanction order has been passed mechanically by the Joint Director of Agriculture. For, it has been passed in a proforma style. It neither gives any details about the facts of the case, nor shows the application of mind. Although the sanction has been given against Mr. Chandrakant V. Deshpande, petitioner No. 2, and against Mr. Chandra Prakash Sharma, petitioner No. 4, but it does not utter a word as to how they are responsible for the day to day functioning of their respective Company or firm. Therefore, the sanction order is legally unsustainable. In order to buttress this contention, the learned counsel has relied upon the cases of Crop Health Products Ltd. vs. State,2005 3 RCC 1584 and M/s. Gupta Chemical vs. State,2004 2 RCC 1057.

(3.) Secondly, even the complaint filed is unsustainable as it does not mention material particulars. For, it does not mention how the petitioners were in-charge of, or responsible to the Company for conduct of its business. Moreover, it does not mention how the offence under Section 29(1)(a) of the Act was committed by them, or how it was committed with their consent, or with their connivance. A mere statement that "M/s BASF India Ltd. has violated the provisions of the Act as they are manufacturer of the herbicide and the others have also violated the provisions of the Act as they are responsible for maintaining the quality of the product", such a statement is too vague to make out a case of vicarious liability. In order to buttress this contention, he has relied upon the cases of Municipal Corporation of Delhi vs. Ram Kishan, 1983 AIR(SC) 67 M/s. Agarwal Agencies vs. State,2004 2 RCC 1034, Agarwal Khad Bhandar vs. State,1993 RCC 607, Krishna Kumar vs. B.L. Sharma, 1994 2 RajLW 686, M/s. S.N. Chemicals vs. State, 2000 1 RajLW 343, M/s. Bharat Insecticides Ltd. vs. State,1997 1 WLC(Raj) 657 and M/s. Gupta Chemicals vs. State,1996 2 RajLW 271.