Syed Mohammad vs State Of Punjab
- Court
- Punjab and Haryana High Court
CRM-M-34503-2016 (O&M) and one connected petition 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
137
1. CRM-M-34503-2016 (O&M)
Syed Mohammad Altaf ...Petitioner
Versus
State of Punjab ...Respondent
2. CRM-M-10201-2020 (O&M)
Lakhvir Singh and others ...Petitioners
Versus
State of Punjab ...Respondent
Date of decision : 03.11.2026
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Pritpal Singh Miglani, Advocate
for the petitioners in CRM-M-10201-2020 .
Mr. Akashdeep Singh, Advocate
for the petitioner in CRM-M-34503-2016 .
Ms. Ruchika Sabherwal, Senior DAG, Punjab.
MANISHA BATRA, J. (Oral)
1. This order shall dispose of abovementioned two petitions, which
have been filed under Section 482 of the Code of Criminal Procedure, 1973
(for short 'Cr.P.C.') for quashing of Complaint No.COMA/9022/2014 dated
19.12.2014 titled as ‘State through Nirmal Singh, Insecticides Inspector,
Ludhiana v. M/s Jandiali Trading Co. and others’ instituted under Sections
3(k)(i), 17, 18, 29 and 33 of the Insecticides Act, 1968 (for short 'the Act')
read with Rule 27(5) of the Insecticides Rules, 1971, pending in the Court of
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CRM-M-34503-2016 (O&M) and one connected petition 2
learned Chief Judicial Magistrate, Ludhiana (Annexure P-1 in both the
petitions), the summoning orders dated 19.12.2014 and 06.05.2015
(Annexures P-2) and all the consequential proceedings arising therefrom qua
the petitioners.
2. Both the petitions arise out of the same complaint and are,
therefore, being disposed of by this common order.
3. As per the complaint, Nirmal Singh, Agricultural Development
Officer-cum-Notified Insecticides Inspector, Ludhiana, visited the shop of
M/s Jandiali Trading Co., Grain Market, Sahnewal on 20.07.2012. Petitioner
Lakhvir Singh is the proprietor of this dealer firm and both are petitioners
No.1 and 2 in CRM-M-10201-2020, respectively. The Inspector found 140
sealed packets of 5 kgs each of Cartap Hydrochloride 4% G (Cartex 4G),
batch No.F/C.TX-054. The insecticide had been manufactured on 12.04.2012
by M/s FIL Industries Limited, Jammu and its date of expiry was 11.04.2014.
The Inspector selected one sealed packet , opened it and prepared three
sample portions of 250 grams each. One portion was sent to the Senior
Analyst, Insecticides Testing Laboratory, Bathinda on 23.07.2012. As per
report dated 21.08.2012, the sample contained 3.57% active ingredient
against the declared 4% and was found to be misbranded. On the request of
the dealer and the manufacturer, the second portion was sent to the Central
Insecticides Laboratory, Faridabad. Vide report dated 26.09.2012, this
laboratory found the active ingredient to be 2.85% and also declared the
sample to be misbranded.
4. Show cause notices were issued to the dealer firm and to the
manufacturing company. The dealer firm claimed the protection of Section
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30(3) of the Act in its replies. The licence of the dealer firm was cancelled by
the Chief Agricultural Officer, Ludhiana on 30.11.2012, but the said order
was stayed in appeal on 21.01.2013. Written consent under Section 31(1) of
the Act was granted by the Joint Director of Agriculture (Plant Protection),
Punjab on 07.08.2014. The complaint was then filed against the dealer firm
(accused No.1), Lakhvir Singh (accused No.2) and M/s FIL Industries
Limited (accused No.3). The officials of the company were also arrayed as
accused No.4(a) to 4(d) in their individual capacity. They are Syed
Mohammad, Managing Director (accused No.4(a)), Mohammad Ashraf
Rather, responsible officer for quality control (accused No.4(b)), Prince
Gumber, Regional Sales Manager (accused No.4(c)) and Manveer Singh,
godown incharge (accused No.4(d)). Learned Chief Judicial Magistrate,
Ludhiana summoned the accused vide order dated 19.12.2014 and accused
No.3 and 4 were directed to be summoned vide order dated 06.05.2015. Syed
Mohammad Altaf has filed petition bearing CRM-M-34503-2016 , while the
dealer firm, its proprietor and Prince Gumber have filed petition bearing
CRM-M-10201-2020 .
5. Learned counsel for the petitioner in CRM-M-34503-2016 has
argued that the petitioner was the Managing Director of M/s FIL Industries
Limited but he was never the person responsible for quality control or for the
conduct of its business at Ludhiana. The company had nominated
Mohammad Ashraf Rather for quality control, Prince Gumber for the conduct
of business and Manveer Singh as godown incharge. Their affidavits had
been submitted to the licensing authority and have been annexed by the
complainant himself with the complaint as Annexures R-28 to R-30. All
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these persons have also been arrayed as accused. The complaint contains only
a bald statement against the petitioner on account of his designation, which
does not satisfy the requirement of Section 33 of the Act. The petitioner had
also resigned from the company, vide letter dated 24.12.2014, which was
accepted with effect from 30.01.2015 (Annexure P-3). His prosecution is,
thus, an abuse of the process of law. To buttress his arguments, learned
counsel has relied upon the authorities cited as M/s Cheminova India
Limited and another v. State of Punjab and others, (2021) 8 SCC 818 ,
Rajnish Sarna v. State of Punjab, CRM-M-15356-2021 decided on
06.10.2023, Sunil Sethy v. State of Punjab, CRM-M-62101-2018 decided on
21.12.2023, Rajesh Aggarwal and another v. State of Punjab, CRM-M-
5137-2022 decided on 30.07.2024, S.B.V.R. Prasad v. State of Punjab,
CRM-M-37187-2021 decided on 30.07.2024, Prayut Jamsaria v. State of
Punjab, CRM-M-21392-2023 decided on 11.11.2024 and Raj Deep Bhatia v.
State of Punjab, CRM-M-22204-2023 decided on 12.11.2024 by this Court.
6. Learned counsel for the petitioners in CRM-M-10201-2020 has
argued that petitioners No.1 and 2 are only retailers. The insecticide was
purchased by them from the godown of the manufacturer in sealed packets
and the sample was drawn from the original sealed packing. There is no
allegation of any tampering or of improper storage against them. They are,
thus, protected by Section 30(3) of the Act. Petitioner No.3 was the Regional
Sales Manager of the manufacturing company and had left the job in March,
2012. The licensing authority had allowed Rajinder Singh Bali to be the new
responsible person for conduct of business in his place with effect from
12.04.2012 (Annexure P-5). The show cause notice was also not issued to
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him (Annexure P-6). The further argument is that the Inspector should have
taken three sealed containers instead of opening one packet and the sample
was not sent to the laboratory forthwith. The summoning order is also stated
to be a non-speaking order. To buttress his arguments, learned counsel has
relied upon the authorities cited as Jindal Fertilizers and Chemicals and
others v. State of Punjab, 2010(4) R.C.R. (Criminal) 146 and Amarjit Singh
and others v. State of Punjab, CRM-M-2441-2017 decided on 01.03.2023 by
this Court.
7. Replies have been filed by the respondent-State. Learned State
counsel has opposed both the petitions. It is argued that the sample was found
misbranded in both the tests. Under Section 29(1)(a) of the Act, whoever
sells, stocks or exhibits for sale a misbranded insecticide is liable to be
punished, and the dealer firm and its proprietor had sold this insecticide to the
farmers. The protection under Section 30(3) of the Act has to be proved by
them during the trial. Prince Gumber had furnished an affidavit dated
24.01.2012 (Annexure R-4) undertaking the responsibility for conduct of
business, and he cannot shift his liability to Rajinder Singh Bali. A packet of
5 kgs cannot be termed a container of small volume. The sample was drawn
in the presence of petitioner Lakhvir Singh, who never objected to the
procedure and rather sought re-analysis of the sample. The sample was sent
to the laboratory on 23.07.2012 and there was no delay. As regards the
Managing Director, it is argued that he was in overall charge of the company
and his plea is a matter of evidence. The petitioners have the remedy of
revision against the summoning order. With these submissions, learned State
counsel has prayed for dismissal of the petitions.
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8. This Court has heard the rival submissions and has gone through
the record carefully.
9. Before proceeding further, it would be appropriate to reproduce
Sections 30(3) and 33(1) of the Act, which read as under:-
“30. Defences which may or may not be allowed in
prosecutions under this Act .—
xxx xxx xxx
(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; and
(c) that the insecticide, while in his possession, was
properly stored and remained in the same state as
when he acquired it.
*
33. Offences by companies.-(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.”
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10. The objections relating to the drawing and sending of the sample
may be dealt with first, since they relate to the sample itself and would affect
all the accused. Under the proviso to Section 22(5) of the Act, the Inspector
may take three containers instead of dividing the sample only where the
insecticide is made up in containers of small volume. He is bound to do so
only where the insecticide is likely to deteriorate or be damaged by exposure.
A packet of 5 kgs is not a container of small volume. It is also not the case of
the petitioners that these granules were likely to deteriorate on exposure. As
per the complaint, the three portions were put in polythene envelopes, made
airtight and sealed in cloth bags. A similar objection under the food law was
rejected by the Hon'ble Supreme Court in State of Punjab v. Devinder
Kumar and others, [1983] 2 S.C.R. 714 . It was held that there is no legal
requirement compelling the Inspector to send a sealed container as such,
where it contains a quantity much larger than what is required for the sample.
This objection, therefore, has no merit.
11. Section 22(6)(i) of the Act requires the Inspector to send one
portion of the sample forthwith to the Insecticide Analyst. In Sohan Singh v.
State of Punjab, CRM-M-12926-2018 decided on 16.01.2023, this Court
held the word 'forthwith' to mean the date of sampling, the next day or, at the
most, the next working day if the next day is a holiday. In the present case,
the sample was drawn on 20.07.2012, which was a Friday. It was sent to the
laboratory on 23.07.2012, which was a Monday and the next working day.
The requirement of Section 22(6)(i) of the Act was, thus, complied with. The
cases in which complaints have been quashed on this ground involved
unexplained delay of several days, and they do not apply to the present case.
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The date of deposit mentioned in paragraph 6 of the complaint as 23.03.2012
is evidently a typographical error, since the forwarding letter itself is dated
23.07.2012.
12. The objection to the summoning order also does not survive.
The complaint has been filed by a public servant in the discharge of his
official duty and is supported by the reports of the two laboratories. In
Cheminova 's case (supra), the Hon'ble Supreme Court held it to be always
open for the Magistrate to issue process on such a complaint. The availability
of the remedy of revision is also no bar to the exercise of jurisdiction under
Section 482 Cr.P.C., where the continuation of the proceedings would
amount to an abuse of the process of law. It may also be noticed that the first
report was received in the office of the Chief Agricultural Officer on
27.08.2012 and the complaint was filed within three years thereof. No
question of limitation, therefore, arises.
Case of Syed Mohammad Altaf (CRM-M-34503-2016)
13. Section 33(1) of the Act makes the company and every person
who, at the time of the offence, was in charge of and responsible to the
company for the conduct of its business liable for an offence committed by
the company. The scope of this provision in the context of a Managing
Director was considered by the Hon'ble Supreme Court in Cheminova 's case
(supra). In that case, the company had nominated its manager as the person in
charge of and responsible for maintaining the quality of its pesticides and the
undertaking to this effect had been filed with the department. It was held that
the Managing Director could not be prosecuted merely on the vague
allegation of being in overall charge of the company, when the nominated
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persons were already arrayed as accused. The relevant observations are as
under:-
“9. ... In view of the specific provision in the Act dealing
with the offences by companies, which fixes the
responsibility and the responsible person of the Company
for conduct of its business, by making bald and vague
nd
allegations, 2 Appellant – Managing Director cannot be
prosecuted on vague allegation that he being the
Managing Director of the 1st Appellant – Company, is
overall responsible person for the conduct of the business
of the Company and of quality control, etc. ... A reading
of Section 33 of the Act also makes it clear that only
responsible person of the Company, as well as the
Company alone shall be deemed to be guilty of the
offence and shall be liable to be proceeded against.
Though, the Managing Director is overall incharge of
the affairs of the company, whether such officer is to
be prosecuted or not, depends on the facts and
circumstances of each case and the relevant provisions
of law. ...
xxx xxx xxx
11. As all other nominated / responsible persons of the
Company are already accused in the Complaint, we
are of the view that there is no basis to proceed against
the 2nd Appellant – Managing Director to prosecute
him for the alleged offences. ..."
14. The same view has been followed by Coordinate Benches of this
Court in Rajesh Aggarwal 's case (supra), S.B.V.R. Prasad 's case (supra),
Prayut Jamsaria 's case (supra) and Raj Deep Bhatia 's case (supra). In these
cases, the complaints were quashed qua the Managing Director or Directors,
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where the quality control manager of the company had already been arrayed
as an accused and no specific role had been attributed to them.
15. In the present case, the list of responsible persons of M/s FIL
Industries Limited maintained by the licensing authority (Statement No.1,
annexed with the complaint as Annexure R-26/1) names Dr. Mohammad
Ashraf Rather as responsible for quality control. Against the name of the
petitioner, only his designation as Managing Director has been mentioned
and no responsibility has been assigned. The affidavits of Mohammad Ashraf
Rather, Prince Gumber and Manveer Singh accepting responsibility for
quality control, conduct of business and the godown respectively have also
been annexed with the complaint. The person responsible for quality control
and the godown incharge have been arrayed as accused and are facing trial.
The orders of the trial Court dated 18.09.2019 and 04.02.2020 (Annexures P-
3 and P-4 in CRM-M-10201-2020) show that the company is also being
represented there through its representative.
16. The only allegation against the petitioner is in paragraph 15 of
the complaint, wherein it is stated that he and Mohammad Ashraf Rather
failed to check this misbranded insecticide at the manufacturing unit. It is
further stated that the officials responsible at the time of failure of the sample
‘might had shown negligence’ in performing their duty. This is a bald
statement based on the designation of the petitioner. It does not show how he
was in charge of the manufacture or quality control of this batch. The
allegation of possible negligence is a mere surmise and does not satisfy the
requirement of Section 33(2) of the Act either, which requires consent,
connivance or neglect on the part of the officer to be attributed to him. The
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case of the petitioner is, thus, squarely covered by Cheminova 's case (supra).
The fact that Rajinder Singh Bali, who was the responsible person for
conduct of business at the relevant time, has not been arrayed as an accused
cannot be a ground to proceed against the Managing Director on the basis of
his designation alone.
17. Learned State counsel has also relied upon the affidavit of the
petitioner (Annexure R-27). In this affidavit, the petitioner had undertaken to
nominate an alternate person in case any of the three nominated persons left
the firm. It is further stated that he would take responsibility in case the
authorised nominated person did not appear. This undertaking only deals with
a future contingency of a nominated person leaving the company without a
substitute being named. The complaint does not plead that any such
contingency had arisen at the time of the offence. Rather, the person
responsible for quality control was in place and has been arrayed as an
accused. An undertaking given to the licensing authority also cannot enlarge
the scope of Section 33 of the Act, which looks to the person who was in
charge at the time the offence was committed. In Cheminova 's case (supra)
also, the undertaking had been furnished by the Managing Director himself.
This affidavit, therefore, does not furnish a ground to prosecute the petitioner.
18. As regards the resignation of the petitioner, his liability under
Section 33 of the Act would have to be judged with reference to the date of
the offence. His subsequent resignation on 24.12.2014 would, therefore, not
by itself absolve him. The petitioner, however, succeeds for the reasons
recorded above. His continued prosecution would amount to an abuse of the
process of law.
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Case of the dealer firm and its proprietor (CRM-M-10201-2020)
19. Section 30(3) of the Act protects a person who is neither the
importer nor the manufacturer of an insecticide nor his agent for its
distribution, if the three conditions laid down therein are fulfilled. The burden
to prove these conditions is no doubt on the dealer. However, in the present
case, each of these conditions is established from the complaint and the
documents annexed with it by the complainant himself.
20. As regards the first condition, the complaint itself states that the
insecticide was supplied by the manufacturing company to the dealer firm
from its own godown at Ludhiana. The challan No.55 dated 26.05.2012 of
the company (Annexure R-25 with the complaint) and the principal certificate
issued by it (Annexure R-24 with the complaint) have been placed on record
by the complainant. As regards the second condition, the complaint states that
the sample was drawn after opening one sealed packet of 5 kgs out of 140
such packets. The State has admitted in its reply also that the sample was
drawn by opening a sealed packet. A retailer selling the insecticide in the
sealed packing of the manufacturer had no means of ascertaining its active
ingredient. As regards the third condition, there is no allegation in the
complaint or in the reply that the seal was tampered with or that the
insecticide was not properly stored by the dealer. The sample was drawn
about three months after its manufacture and well within its shelf life. The
only observation on storage is in the order cancelling the licence of the dealer
firm, where the Chief Agricultural Officer stated that it 'may be possible' that
the insecticide was not properly stored. This is a mere conjecture. Besides,
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that order was stayed in appeal on 21.01.2013 and the complainant has not
relied upon it to allege improper storage.
21. The Hon'ble Supreme Court in M/s Kisan Beej Bhandar,
Abohar v. Chief Agricultural Officer, Ferozepur and another, 1990 (Supp)
SCC 11 held that once it is found that the insecticide was sold in a full and
sealed tin, the burden lying on the dealer under Section 30(3) of the Act
stands discharged. The relevant observations are as under:-
“4. ... In that view of the matter, on the facts found that it
was a full tin in a sealed condition, the liability arising out
of misbranding was not of the appellant. Unless he had
any other source of information about misbranding - and it
has not been established - the appellant is entitled to the
protection of sub-section (3). In the facts once the
appellant's contention that it was a sealed tin intact
has been found, the burden that lay on him under the
provisions of sub-section (3) had been satisfactorily
discharged, even in the matter of considering the question
of cancellation of licence ...”
22. Following this judgment, Coordinate Benches of this Court have
quashed complaints against dealers in Jindal Fertilizers and Chemicals 's
case (supra), Amarjit Singh 's case (supra), S.B.V.R. Prasad 's case (supra)
and Bhagwan Dass and others v. State of Punjab, CRM-M-22175-2019
decided on 27.05.2024, where the sample had been drawn from the original
sealed packing and there was no allegation of tampering or improper storage.
The case of petitioners No.1 and 2 stands on the same footing.
23. The argument of learned State counsel that the defence under
Section 30(3) of the Act can be considered only at the trial cannot be
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accepted in the facts of this case. The conditions of this provision are not in
dispute and they emerge from the documents of the prosecution itself. No
evidence that the complainant may lead at the trial can alter these facts. The
judgment in Devinder Kumar 's case (supra) cautions against quashing a
prosecution where the guilt or innocence of the accused depends upon
evidence yet to be led. The present is not such a case, since the relief to
petitioners No.1 and 2 rests on undisputed facts and not on any appreciation
of evidence. Their trial would, therefore, be a futile exercise.
Case of Prince Gumber (CRM-M-10201-2020)
24. Petitioner No.3 has been arrayed as an accused on the basis of
his affidavit dated 24.01.2012 as the Regional Sales Manager responsible for
conduct of business of the company. However, the same Statement No.1 of
the licensing authority, annexed with the complaint as Annexure R-26/1 and
with the petition as Annexure P-5, records an endorsement dated 21.04.2012.
By this endorsement, Rajinder Singh Bali, Regional Sales Manager, was
allowed to be the new responsible person for conduct of business in place of
Prince Gumber with effect from 12.04.2012. The insecticide in question was
manufactured on 12.04.2012, supplied to the dealer on 26.05.2012 and
sampled on 20.07.2012. Under Section 33(1) of the Act, the relevant time is
the time when the offence was committed and on that date petitioner No.3
was no longer the responsible person. The show cause notice dated
01.11.2012 was also addressed to Rajinder Singh Bali and it was he who
replied to it (Annexure R-18 with the complaint in CRM-M-34503-2016).
The State in its reply does not dispute this substitution. It only states that
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petitioner No.3 cannot shift his liability to Rajinder Singh Bali, which is no
answer to the record of the licensing authority itself.
25. It is, therefore, not necessary to go into the disputed plea of
petitioner No.3 that he had left the company in March, 2012. Even otherwise,
he was a sales official and is not alleged to have any role in the manufacture
or quality control of the insecticide, which reached the dealer in a sealed
packing. A similar view was taken in Sunil Sethy 's case (supra), where
proceedings against the Managing Director of a marketing firm were quashed
in respect of a product drawn from sealed packing manufactured by another
company. Petitioner No.3 is, thus, also entitled to the relief prayed for.
26. To sum up, the objections regarding the manner of sampling, the
alleged delay in sending the sample, the summoning order and limitation are
rejected. The petitioners, however, succeed for the reasons recorded above
and the continuation of the proceedings against them would amount to an
abuse of the process of law.
27. In view of the discussion made above, both the petitions are
allowed. Complaint No.COMA/9022/2014 dated 19.12.2014 titled ‘State
through Nirmal Singh, Insecticides Inspector, Ludhiana v. M/s Jandiali
Trading Co. and others’ , pending in the Court of learned Chief Judicial
Magistrate, Ludhiana, the summoning orders dated 19.12.2014 and
06.05.2015 and all the consequential proceedings arising therefrom are
hereby quashed qua the petitioners, namely, Syed Mohammad Altaf, Lakhvir
Singh, M/s Jandiali Trading Company and Prince Gumber. The proceedings
against the remaining accused shall continue in accordance with law.
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28. Nothing observed herein shall be construed as an expression of
opinion on the merits of the case against them.
29. Pending miscellaneous application(s), if any, shall also stand
disposed of.
30. A photocopy of this order be placed on the file of the connected
case.
03.11.2026 (MANISHA BATRA)
Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari
JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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