Oral Order:
1] The petition is filed under Articles 226 and 227 of the Constitution of India and Section 482 of Cr.P.C. for quashing and setting aside the proceeding of S.T.C.No.162/08, which is pending in the Court of JMFC Badnapur. The case is filed by respondent no.2, public servant for offences punishable under various Sections of Insecticides Act, 1968 and Rules framed under the Act. Both sides are heard.
2] Copy of the complaint given by public servant shows that on 31/7/02, the Inspector appointed under the Special Act did the inspection of the premises of M/s Rama Sales Corporation, Badnapur. He found that the insecticide Monocrotophos 36% manufactured by Nagarjuna Agrichem Limited, Srikakulam, manufactured in June 2002 having expiry date of November 2003 were kept for sale. He had doubt about the quality of the insecticide and so he took samples of 250 ml. of the insecticide. Three such samples were collected and they were closed and sealed. One of the sample was haded over to the dealer, M/s Rama Sales Corporation, the second sample was sent to Chemist for testing purpose and the third sample was retained for Court purpose. The Chemist gave report on 5/8/2002 that the sample had failed and it was containing 33.74% of the substance as against 36% S.L. shown on the label. Thus, the insecticide was found to be misbranded as per the provision of Section 3(K) (1) of Insecticides Act, 1968. After collecting the information from Rama Sales Corporation, notices were issued to all the accused who include manufacturer and private complaint came to be filed.
3] The petitioner Godrej Agrovet Ltd. is a dealer of aforesaid substance and it had collected these goods from manufacturer M/s Nagarjuna Agrochem Ltd. In response to the notice issued by Insecticide Inspector, Mr.R.K.Bansal, Manager, Product Supply of Godrej Ltd. sent reply and informed that only aforesaid manufacturer was responsible for the quality of the product.
4] The present proceeding is filed for Godrej Agrovet Ltd. through Mr.R.K.Bansal and he is described as General Manager.It was submitted for the petitioner that the proceeding was filed only for Mr.Bansal though in title, the description of the petitioner is different. It was submitted that in view of the provision of Insecticides Act, 1968, person like Mr.Bansal cannot be held responsible. Some argument was advanced in relation to the provision of Section 141 of Negotiable Instruments Act and reliance was placed on some reported cases. The cases on which reliance was placed for petitioner are as follows : [1] 2007 All MR (Cri) 870 [S.M.S.Pharmaceauticals Ltd. V/s Neeta Bhalla and another]; [2] 1996-SCC-11-613 [State of Punjab V/s National organic Chemical Industries Limited]; [3] IV (2008) BC43 Prafulla Maheshwari and others V/s State of Maharashtra and another; [4] I(2008) BC 162 [Ruchika Enterprises and others V/s Shriram Enterprises and [5] 2000-MHLJ-4-861 Bhiku Yeshwant Dhangat V/s Baban Maruti Barate.
5] In these cases, Apex Court has discussed the necessity of making averment in a complaint with regard to the role played by a Director of the company in the conduct of business of the company in view of the provision of Section 141 of N.I.Act. It was submitted that as there is no specific allegations made against Shri Bansal, the prosecution cannot be allowed to continue against him.
6] This Court has gone through the relevant provisions of the aforesaid Act. Sections 29, 30(3) and 33 of the Act run as follows:
Section 29 : Offences and punishment:
(1) Whoever, -
(a) imports, manufactures, sells, stocks or exhibits for sale or distributes any insecticide deemed to be misbranded under sub-clause (i) or sub-clause (iii) or sub clause (viii) of Cl (k) of Sec.3; or
(b) imports or manufactures any insecticides without a certificate of registration; or
(c) manufactures, sells, stocks or exhibits for sale or distributes an insecticide without a licence; or
(d) sells or distributes an insecticide, in contravention of Sec.27; or
(e) cause an insecticide, the use of which has been prohibited under Sec. 27, to be used by any worker; or
(f) obstructs an Insecticide Inspector in the exercise of his power of discharge of his duties under this Act or the rules made thereunder, shall be punishable -
(i) for the first offence, with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both;
(ii) for the second and a subsequent offence, with imprisonment for a term which may extend to three years, or with fine, or with both.
(2) Whoever uses an insecticide in contravention of any provision of this Act or any rule made thereunder shall be punishable with fine which may extend to five hundred rupees.
(3) Whoever contravenes any of the other provisions of this Act or any rule made thereunder or any condition of certificate of registration or licence granted thereunder, shall be punishable -
(i) for the first offence, with imprisonment for a term which may extend to six months, or with fine or with both
(ii) for the second and a subsequent offence, with imprisonment for a term which may extend to one year, or with fine or with both.
(4) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the Court before which the second or subsequent conviction takes place to cause the offenders name and place of residence, the offence and the penalty imposed to be published in such newspapers or in such other manner as the Court may direct.
Section 30 : Defence which may or may not be allowed in prosecution under this Act -
(1) ......
(2).......
(3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for contravention of any provision of this Act, if he proves -
(a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof;
(b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and
(c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it.
Section 33 : Offence by companies â
(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 the 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 or 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 their officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.â
7] The aforesaid provision shows that the Insecticides Act, 1968 has additional provision and that makes distinction between the provisions of this Act and the provision of Section 141 of N.I.Act. Further, the documents like reply given by Shri R.K.Bansal shows that he had personal knowledge about the transaction and he was actively involved in the conduct of the business. He has described himself as Manager of Product supply. In the present petition, he has described himself as General Manager when Section 30(3) of the Act shows that it is necessary for such a person to prove that he cannot be held responsible for the contravention claimed by Inspector. Further, the fact that Godrej Agrovet Ltd. was distributor of the manufacturer, needs to be kept in mind while using Section 30(3) of the Act. In view of the description of the post of Shri R.K.Bansal, at this stage, it cannot be said that he was not incharge of the business of the company. In view of the wordings of both Sections, 30 and 33, he is required to prove in the Court that he cannot be held responsible for the aforesaid alleged circumstances. So, this Court holds that the proceeding is devoid of merits.
8] It was submitted for the petitioner that one accused Jagnath Bargaje owner of Rama Sales Corporation, from where the samples were collected, has been acquitted by the JMFC and so, it is not desirable to ask Shri R.K.Bansal to face the trial. Copy of judgment is produced on record. The protection of Section 30(3) was given to the accused by the Court in view of the defence taken by him. It is already observed that Shri R.K.Bansal also can take such defence, if he falls under Section 30(3) of the Act. Shri R.K.Bansal, Godrej Agrovet Ltd. has directly come to this Court without appearing before JMFC. As the defence is required to be proved, no relief can be granted in this proceeding and so Petition stands dismissed.