ORDER
S.S. Grewal, J.
1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') relates to quashment of complaint (Annexure P2) filed against the present petitioner, and his other co-accused, under Sections 17, 18(1)(c) 3(k) and 33 of the Insecticides Act, 1968 (hereinafter referred to as 'the Act').
2. In brief, according to the allegations made in the impugned complaint, moved by the Insecticide Inspector, Amritsar, M/s. Modern Kheti Store, 52, Hide Market, Amritsar, deal with pesticide/ insecticides and are holding the licence for the purpose issued by the Licencing Authority (Chief Agricultural Officer, Amritsar) for the sale of NUVAN 76% manufactured by M/s. Hindustan Ciba Geigy Ltd., Bombay, who, are the licenced manufacturers of the said pesticide. On 27th August, 1987 Mukhwinder Singh, Pesticide/Insecticide Inspector, took sample of the said pesticide from M/s Modern Kheti Store, Amritsar, who, are the authorised dealer of M/s Hindustan Ciba Geigy Ltd. (Manufacturer), in the presence of Nirmal Singh, Sub-Inspector (plant protection) in the office of the Chief Agricultural Officer, Amritsar. Samples in three sealed intact original containers (poly packed) were taken and put in three plythene bags, along with seizer memo separately, and each sample was duly sealed, according to the provisions of the Act, and, the 1971 Rules framed thereunder. One sealed sample was handed over to Dharam Paul petitioner (partner of the said firm), who, signed the relevant form, concerning the price of the sample tendered to him. One such sealed sample was sent to the Central Insecticide Laboratory, Faridabad, vide registered parcel No. 8945 dated 1st September, 1987, and, the same was duly received on the following day in the said Laboratory. According to the report of the Insecticide Pesticide Analyst, the sample was not satisfactory in the Emulsion stability test requirement, and the same was misbranded.
3. The petitioner, and, his other co-accused are said to have committed an offence under Section 18 of the Act by selling mis-branded pesticide, as defind in Section 3(k) of the Act, whereas, the accused connected with the manufacture of the said pesticide are alleged to have committed offence under Section 17 of the Act, for manufacturing misbranded pesticide, and, are liable for penal action under Section 33 of the Act. It was also pleaded that in this case the activities of the manufacturer/distributor/dealer are sufficiently connected in case of sale of misbranded NUVAN by a unity of purpose and the design, and, thus render them guilty for punishment under Section 29(1) of the Act.
4. According to the allegations in the petition, the petitioner's firm and also the manufacturers had submitted reply to the show-cause notice, wherein, it had been clearly maintained that the insecticides/pesticides had been kept and sold in the same form and condition in which it had been received from the manufacturers. It was further pleaded that even the manufacturers had not attempted to shift their responsibility to the petitioner, or to any other person. The manufacturers in their communication dated 19th November, 1987 sent the report dated 17th November, 1987 of the Manufacturers Quality Assurance Laboratory, Goa (Annexure P5), which, shows that the insecticide bearing the commercial name 'NUVAN' conformed according to the ISI specifications in all respects, and, that there was no variation in the impugned sample from the prescribed standard, and, that some variations in the emulsion stability test show that the sample was not below the standard prescribed. It is alleged that the petitioner's licence granted under Section 13 of the Act has been illegally cancelled.
5. The State in its reply admitted the taking of the sample according to law and procedure, and, reiterated the averments made in the complaint. Further it was pleaded that the petition was liable to be dismissed with costs.
6. Counsel for the parties were heard.
7. In view of the authorities of the Apex Court in State of Bihar v. Murad Ali Khan 1989 Cri LJ 1005 : (AIR 1989 SC 1) and Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67 : (1983 Cri LJ 159) it was frankly conceded by either side that for the purpose of quashment only the allegations set out in the complaint have to be considered for deciding as to whether such allegations constitute, or, spell out any offence, and, that resort to criminal proceedings would, in the circumstances of the present case amount to an abuse of the process of the Court or not.
8. On behalf of the petitioner it was mainly contended that the petitioner had a valid licence to carry on the trade in sale of insecticides/pesticides, and, had purchased the same from a duly licenced manufacturers/ distributors/dealers, and, neither knew, nor, could with reasonable diligence ascertain, that, the said insecticides/pesticides in any way contravened any of the provisions of the Act, and, that the insecticide/pesticide in question, while in possession of the petitioner, and, his co-accused, was properly stored and remained in the same state as and when they had acquired the same.
9. Reference in this context was made to Section 33 of the Act, which, corresponds to Section 19(3) of the Drugs and Cosmetics Act, 1940. Reliance in this respect was also placed on a single Bench authority of this Court is Mohan Lal v. State, 1989 (1) Recent Criminal Reports 650 : 1989 Cri LJ 1976, wherein, relying upon an earlier single Bench authority of this Court in Madan Lal v. The State of Punjab, 1982 All India Prevention of Food Adulteration Journal 40, the proceedings against the licencees, who, had acquired the insecticides in question from the duly licenced manufacturers/dealers thereof, and, had properly stored the same in the same state as and when they had acquired them, and, neither knew, nor, could with reasonable diligence ascertain that the insecticides contravened any provisions of the Act, were ordered to be quashed. The said authority would only be applicable to the facts of the present case in case the present petitioner is held to be a mere licencee, and, not a dealer.
10. Perusal of the complaint (Annexure P2) would indicate that in para No. 2 of the complaint it is mentioned that M/s Modern Kheti Stores were dealing in pesticides/ insecticides, and, held licence for the purpose issued by the Licencing Authority. In para No. 4 of the complaint it is specifically mentioned that the said firm was the authorised dealer of M/s Hindustan Ciba Geigy Ltd. (manufacturers), when, the sample of the sub-standard insecticide was taken by Mukhwinder Singh, Insecticide Inspector. It is further mentioned in para No. 8 of the complaint that the aforesaid firm purchased the misbranded insecticide on 8th June, 1987 from the authorised distributor of the aforesaid manufacturers. In para No. 9 it is also mentioned that the petitioner and Raj Kumar partners of M/s Modern Kheti Store, Amritsar, Harbans Singh partner/proprietor of M/s Modern Agriculture & Supply Co. Ltd, Chandigarh and Sh. S. C. Sharma, Regional Sales Manager, and Sh. D. R. Tayler, General Sales Manager, Hindustan Ciba Geigy Ltd., Bombay (manufacturers) are liable for joint trial and punishment under Sections 17, 18 3(k) and 33 of the Act.
11. From the aforesaid allegations in the complaint it cannot be said that M/s Modern Kheti Store, Amritsar (of which the present petitioner was one of the partners), was a mere licencee for storing the insecticide/ pesticide in question for sale, or, that the said firm was not an authorised dealer. At any rate, it would be for the trial Court to decide this question of fact on merits, after affording adequate opportunity to the parties to lead evidence. It would not be proper for this Court to go beyond the contents of the complaint, and, enter into discussion on the merits of the case, in view of the authorities of the Apex Court in Criminal Appeal No. 2 of 1987 (The State of Punjab v. Dharam Singh decided on 6th February, 1987, State of Bihar v. Murad Ali Khan 1989 Cri LJ 1005 (supra), and, Municipal Corporation of Delhi v. Ram Kishan Rohtagi 1983 Cri LJ 159 (supra).
12. The facts and circumstances of the authority Mohan Lal's case 1989 Cri LJ 1976 (supra) are entirely different, wherein, from the allegations in the complaint it was clear that the petitioners were partners of their respective firms, and, were mere licencees for the sale of insecticides, and, not dealers, or, the manufacturers of the insecticides as per the allegations specified in the complaint (Annexure P2) relating to the present case. The authority in Mohan Lal's case 1989 Cri LJ 1976 (supra) is not applicable to the facts of the case in hand, and, is clearly distinguishable.
13. The next limb of the argument advanced on behalf of the petitioner that a dealer is not liable for contravention of any provision of the Act in case he complies with the conditions and Clauses (a) to (c) of Sub-section (3)of Section 30 of the Act, is without any merit. The opening words of Sub-section (3) of Section 30 of the Act do indicate that 'a person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for the contravention of any provision of this Act'. In order to seek protection according to Clause (a) of Sub-section (3) of Section 30 of the Act, it is obligatory to fulfill either of the three pre-conditions. One such precondition is that the person concerned should have acquired insecticide from an importer, or, a duly licensed manufacturer, distributor or dealer thereof. This cannotes that the dealer himself cannot seek protection for contravention of the provisions of the Act, as contemplated under Sub-section (3) of Section 30 of the Act.
14. I am further supported on this point from the definition of the 'dealer' given in Insecticides (Price, Stock Display and Submission of Reports) Order, 1986, which, means a person carrying on the business of selling insecticides, whether wholesale or retail, and includes an agent of a dealer' as well as, its definition given in Fertilizer Control Order, 1985, which, means a person carrying on the business of selling fertilizers, whether wholesale or retail, and includes a manufacturer and a pool handling agency carrying on such business and the agents of such person, manufacturer, or, pool handling agency.'
15. For the foregoing reasons, the complaint (Annexure P2) or, the subsequent proceedings against the petitioner, on the basis of the said complaint, are not liable to be quashed. This petition is, accordingly, dismissed.
16. However, it is clarified that nothing herein observed for the disposal of this petition, shall in any manner, be construed to affect the merits of the case, by the trial Court.