CRM-M-14989 of 2013 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
(1) Crl.
Misc.
No.M-14989 of 2013 (O&M) Date of Decision: July 23, 2014.
M/s Chandan Pesticides and another ......PETITIONER(s).VERSUS State of Punjab ....RESPONDENT(s).(2) Crl.
Misc.
No.M-15911 of 2013 (O&M) M/s Vaishno Brothers and another ......PETITIONER(s).VERSUS State of Punjab ....RESPONDENT(s).CORAM:- HON'BLE Mr.JUSTICE SURINDER GUPTA Argued by : Mr.Arun Chandra, Advocate for the petitioner (s).Ms.Shivali, A.A.G., Punjab.
******* SURINDER GUPTA, J.
This judgment dispose of both the petitions captioned above filed under Section 482 Code of Criminal Procedure (for short 'Cr.P.C.') seeking quashing of complaint titled “State of Punjab versus M/s Chandan Pesticides and others”.
filed for the offence punishable under Section 29 read with Sections 3(K).17, 18 and 33 of Insecticides Act, 1969.
SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -2- As per the complaint filed by Insecticide Inspector Block Verka District Amritsar, he inspected the premises of M/s Chandan Pesticides on 30.05.2009 along with Satender Singh Agriculture Development Officer.
Petitioner Rajesh Mehta, sole proprietor of that firm, was present there.
The sample of Methyl Parathion having label bearing No.SCL-787 manufacturing date November 2008 and expiry date April 2010, was taken.
The mode of taking of sample has been described in para Nos.4 and 5 of the complaint as follows:- “4.
That I introduced myself and other member of the team to Sh.Rajesh Mehta Proprietor of M/s Chandan Pesticide GT Road Hide Market Amritsar.
I served a notice to him in from XX intimating my intention to draw a loose sample of Methyl Parathion 2% DP for test/analysis.
For this purpose I prepared the sampling details in the prescribed from XX and XXI.
Then I put my signature and official brass seal bearing letter “INS INS VRK ASR”.
on every copy of forms signed on each copy of form XX and XXI also and Sh.
Rajesh Mehta have appended his signature one form XX.
The team, member also appended his signature on from xx as witness.
I also requested to the persons orally standing at the shop to join as independent witnesses, but they refused to sign on form XX as witness (Attested copy of form XX enclosed as Annexure-C and Copy of Form XXI is enclosed as Annexure-D).5.
Thereafter I took one bag of Methyl Parathion 2% DP of Brand Sudal-20 of 10kg Packing.
The label of each bag bears Batch No.SCL-787 manufacturing date Nov 2008 and expiry date April 2010 SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -3- manufactured by M/s Sudarshan Consolidated LTD.Out of 12 X10kg packing I took 10 kg bag were Insecticide in Polythene bag, I further divided it into three equal portion and put into three separate Polythene bags each measuring approx.
333 gm of Insecticide.
These three Polythene bags were tied with thread tightly.
These three test samples were put in three separate cloth bags along with memorandum in form XXI.
These three sample bags were sealed with seal bearing letters INS INS VRK ASr.I wrote the detail of sample on each cloth bag Sh.Rajesh Mehta refused to affix metal seal on each sample.
One sealed sample parcel containing copy of form XXI and a copy of form XX was handed over to Sh.
Rajesh Mehta Proprietor of the firm on the spot The cost of one kg of Methyl Parathion 2% DP which was Rs.30 was paid to Sh.
Rajesh Mehta against bill No.1675 dated 30-5-09 (Attested copy of receipt is enclosed as Annexure-E).”
.
Two parts of the sealed samples were handed over to Gurvinderpal Singh, Agriculture Development Officer, Amritsar on 30.05.2009.
Out of these two samples, one was sent to Senior Analyst Insecticides Test Laboratory, Amritsar with memorandum in form XXI for analysis vide letter bearing No.Spl No.1 dated 31.05.2009.
As per the report of Senior Analyst, Pesticides Test Laboratory, Amritsar, the sample contained only 0.89% of active ingredient contents of Methyl Parathion against 2% mentioned on the label of the pack, as such, it was misbranded.
The sample did not confirm to the relevant I.S.Specifications with respect of its percent active ingredient contents.
On e SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -4- copy of the Analyst Report was communicated to petitioner Rajesh Mehta along with show cause notice vide letter dated 17.06.2009.
Petitioner Rajesh Mehta submitted reply to the show cause notice which was received on 24.06.2009.
On 26.06.2009 petitioner No.2 produced xerox copy of invoice No.11 dated 30.04.2009 by virtue of which he had purchased 12X10 Kg of Methyl Parathion 2% DP from M/s Vaishno BrotheRs.29 Chaudhary Plaza Hide Market, Amritsar.
One copy of the report was sent to proprietor of M/s Vaishno Brothers who in response to the same, produced copy of the invoice No.1050 dated 2.3.2009 by virtue of which he had purchased 25 X10Kg Methyl Parathion 2% DP from Sudarshan Consolidated LTD.A copy of the Analyst Report along with show cause notice was sent to M/s Sudarshan Consolidated Ltd vide letter dated 21.07.2009 which requested for reanalysis of the reference sample.
The Company was asked to deposit Rs.500/- for sending the second sample for analysis.
But it failed to either deposit the money or to provide the packing material despite letteRs.After receiving the required consent of the competent authority, the complaint was filed against the petitioners and other co-accused on 11.03.2013.
Learned counsel for the petitioners has argued that the complaint in this case has been filed much after the expiry of period of limitation as provided under Section 468 Cr.P.C.The report of Analyst was received on 03.06.09.
The complaint was filed on 11.03.2013.
Under Section 29(3) of the Act, the maximum sentence which can be SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -5- awarded in this complaint is two years and fine of Rs.5,000/-.
The complaint could be filed within three years from the commission of alleged offence but has been presented much after the expiry of period of limitation, as such, is liable to be quashed.
Learned State counsel has argued that under Section 470(3) Cr.P.C.the time required for giving notice for the prosecution and obtaining sanction of the Government or any authority is to be excluded from the period of limitation.
The petitioners were basically the sellers of the misbranded pesticides.
The second sample was not got analyzed by the petitioner or the company despite the opportunity given in this regard, as such, there is no prejudice to the petitioners by delay in filing this complaint.
In a similar case M/s Hyderabad Chemicals LTD.And others versus State of Punjab Crl.
Misc.
No.M-10608 of 2012 decided on 03.03.2014, the complaint filed by Insecticide Inspector was quashed with the observations as follows:- “The Judicial Magistrate Ist Class, Talwandi Sabo has not examined, while taking cognizance of the complaint as to whether the same has been filed within limitation.
The complaint was presented beyond the period of limitation without any prayer for condonation of delay.
As such, the court could not take cognizance of the same.
In somewhat similar circumstances, the complaint filed by the Insecticide Inspector was set aside by the Co-ordinate Bench of this Court in Crl.
Misc.
No.SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -6- M-18077 of 2011 decided on 8.10.2012 (M/s Balaji Sales Corporation & Another versus State of Punjab).In case of State of Rajasthan versus Sanjay Kumar, AIR1998SC1919the sample had been drawn on 29.2.1988, the report of the laboratory had been received on 2.7.1988 and the complaint was filed on 28.6.1991.
The High Court quashed the proceedings holding the same as barred by limitation with the observations that the period of limitation start from the date of taking of sample.
In para No.9 and 13, the Hon'ble Supreme Court observed as under :- “9.
Now we shall see which clause of sub-section (1) of Section 469 is attracted to the facts of the case.
For this purpose it will be necessary to revert to the facts of this case.
The essence of the offences charged is manufacture of adulterated, sub-standard, misbranded, spurious drugs within the meaning of the relevant provisions of the Act and/or storage, distribution and sale of such drugs in contravention of the provisions of the Act.
On the date of collection of samples from respondent No.16, on February 29, 1988, it could not have been said that any offence was committed as selling of drugs per se is no offence and the quality of the drugs was not known to the Drugs Inspector, the complainant on that date.
It is only, when the report of the Government Analyst was receive, that it came to light that the provisions of the Act are violated and offence is committed.
So on the facts of this case it cannot be said that Clause (a) of Section 469(1) is attracted.
That the drugs which were offered for sale were substandard/adulterated, within the meaning of the Act, came to the knowledge of the Drugs SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -7- Inspector only on July 2, 1988 when the report of the Government Analyst was received by him; and therefore, clause (b) of Section 469(1) will be attracted.
(10) to (12) xx xx xx 13.
For the above reasons, in the instant case, the limitation for the purpose of Section 468(2) (c) will commence from July 2, 1988, the date of knowledge of the commission of offence to the concerned officer under Section 469(1) (b) but not from February 29,1988 (the date of collection of samples by the Drugs Inspector) and as the complaint was filed on June 28, 1991 which is within three years so the complaint is not barred by limitation under Section 468(2) (c).The High Court has missed this germane aspect erroneously took the date of commencement of the limitation as February 29,1988 , the date on which the samples were collected by the Drugs Inspector from accused No.16.”
.
In the present case, period of limitation if computed from the date of report of Analyst i.e.24.06.2009 or even from the date when a registered letter No.4697 of 13.08.2009 was written to M/s Sudarshan Consolidated Limited, is calculated, the same is far beyond the period of three years and is hit by the provisions of Section 468 Cr.P.C.which reads as follows:- “468.
Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2).after the expiry of the period of limitation.
SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -8- (2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three yeaRs.if the offence is punishable with imprisonment for term exceeding one year but not exceeding three yeaRs.(3) For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”
.
Section 469 Cr.P.C.deals with the commencement of period of limitation and provides as follows :- "469.
Commencement of the period of limitation - (1) The period of limitation, in relation to an offender, shall commence - (a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the fiRs.day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or (c) where it is not known by whom the offence was committed, the fiRs.the day on which the identity of the offender is known to the person SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -9- aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier."
The petitioners in this case were the sellers of insecticides/weedicides.
On receipt of show cause notice, petitioner Rajesh Mehta supplied the invoice by virtue of which he had purchased this insecticide from M/s Vaishno BrotheRs.29, Chaudhary Plaza, Hide Market, Amritsar.
Thereafter show cause notice was issued to M/s Vaishno BrotheRs.who further supplied the invoice No.1050 dated 02.03.2009 regarding their purchase of insecticides in question from M/s Sudarshan Consolidated limited and a show cause notice was given to M/s Sudarshan Consolidated Limited who initially requested for reanalysis of the 2nd sample but later failed to deposit required fee and to supply the packing material.
In the above circumstances, the question which arises for consideration is whether the liability of petitioners is prima facie made out as per provisions of Section 30(3) of the Insecticides Act which provides as follows:- “(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 a 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; SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -10- and (c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it.”
.
The petitioners M/s Chandan Pesticides are not the importers or manufacturers of the insecticides or the agent of importer or manufacturer or distributORS.From the averments in the complaint itself, it is clearly made out that they had acquired the insecticide from a duly licensed manufacturer, distributor/dealer.
It is no where the case of the petitioners that M/s Sudarshan Consolidated Limited was not a licensed manufacturer or M/s Vaishno BrotheRs.Amritsar was not the distributor or dealer of the same.
The complainant has taken a sealed bag and it is nowhere allegation in the complaint that the petitioners with their reasonable diligence could ascertain that the insecticide in any way contravened any provision of the Act or it was not properly stored.
The complaint has been filed against the petitioner M/s Chandan Pesticides and another without examining above facts or making any specific observation with regard to their liability under Section 30(3) of the Insecticides Act, 1968.
The initiation of criminal proceedings against any person should not be taken lightly.
Before launching the prosecution, the Government officials/sanctioning authority must look into the legal provisions to satisfy itself as to whether a prima facie case is made out to initiate the criminal proceedings.
It is clear from the perusal of the complaint that both M/s Chandan Pesticides and M/s Vaishno Brothers SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh CRM-M-14989 of 2013 -11- have cooperated with the prosecuting department and supplied all the required information.
After the failure of M/s Sudarshan Consolidated Limited, no opportunity was provided to the petitioners to deposit the required expenses for reanalysis of the sample.
As a sequel to my above discussion, the continuation of the complaint against the petitioners will be a clear misuse of the process of Court.
The complaint has been filed much after the expiry of period of limitation.
As such, both the aforementioned petitions are allowed and complaint bearing No.10 dated 11.03.2013 titled “State of Punjab versus M/s Chandan Pesticides and others”.
pending in the Court of Judicial Magistrate 1st Class, Amritsar, along with all consequential proceedings arising therefrom is hereby quashed qua the petitioneRs.( SURINDER GUPTA ) July 23, 2014.
JUDGE Sachin M.
SACHIN MEHTA201408.02 15:53 I attest to the accuracy and integrity of this document Chandigarh