HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.857 OF 2021
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973, to quash the proceedings in Crime No.22 of 2021 of Town - I, Nzamabad Police Station, Nizamabad District. The petitioners herein are accused Nos.1, 2 and 4 in the said case. The offence alleged against them is under Section - 420 of the Indian Penal Code, 1860 (for short 'IPC').
2. Heard Mr. T. Pradyumna Kumar Reddy, learned counsel representing Mr. T. Anirudh Reddy, learned counsel for the petitioners and the learned Assistant Public Prosecutor appearing on behalf of respondent No.2 - State. Despite service of notice, none appears on behalf of respondent No.1.
3. According to respondent No.1 - Mandal Agriculture Officer, she has inspected the premises of M/s. Ganesh Enterprises, situated at Nizamabad on 22.01.2021 and found that the said dealer was storing and selling pesticides without insecticide license. It was also found that the said dealer is storing and selling glyphosate 71% SG Aluminum Phosphate without source certificate and also it was procured through illegal means, and thereby selling to innocent farmers.
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4. Respondent No.1 has seized the said stock under cover of panchanama as it was selling insecticide in contravention of Rule - 10 of Insecticides Rules, 1971 and also found cheating the farmers.
5. With the said contentions, respondent No.1 has lodged a complaint with Town - I Nizamabad Police Station, who in turn, a registered a case in Crime NO.22 of 2021 for the offence under Section - 420 of IPC against the petitioners and accused No.3.
6. Mr. T. Pradyumna Kumar Reddy, learned counsel for the petitioner, would submit that the petitioners herein are partners of M/s. Ganesh Enterprises, and respondent No.1 without making the said firm as accused, lodged the present complaint against the partners and, therefore, the proceedings in Crime No.22 of 2021 are liable to be quashed on that ground alone. In support of his contention, he has placed reliance on the principle laid down by the Hon'ble Supreme Court in Sharad Kumar Sanghi v. Sangita Rane1. He would further submit that contents of the complaint lacks ingredients of Section - 420 of IPC. There is no inducement by the petitioners to cheat anybody including farmers as alleged in the complaint. He would further submit that the alleged offence prima facie constitutes an offence under the Insecticides Act, 1968 (for short 'Act, 1968'), but not under IPC. He would further submit that respondent No.2 instead of registering a case for the offence under the provisions of Act, 1968 and the Insecticides Rules, 1971 (for short 'Rules, 1971') registered it 1 . (2015) 12 SCC 781 KL,J Crl.P. No.857 of 2021 3 for the offence under Section - 420 of IPC and, therefore, the present proceedings in Crime No.22 of 2021 are liable to be quashed on that ground also. He has also placed reliance on the judgment rendered a learned Single Judge of Punjab and Haryana High Court in Rakesh Kumar v. State of Haryana2, wherein it was held that the charge framed under Section - 420 of IPC on the ground that the sale of insecticide without license is not maintainable and thus quashed the said crime registered against the accused therein for the offence under Section - 420 of IPC.
7. The learned counsel for the petitioner would further submit that due to seizure of the said M/s. Ganesh Enterprises, the petitioners are unable to conduct their business. With the said contentions, the learned counsel for the petitioners sought to quash the proceedings in the above crime.
8. On the other hand, the learned Assistant Public Prosecutor, on instructions of respondent No.2, would submit that the matter is at crime stage and investigation has to be conducted. There are serious allegations against the petitioners herein that they are selling insecticides which are expired / banned. Therefore, according to him, respondent No.1 has rightly seized the premises and rightly lodged a complaint with the police. With the said contentions, he sought to dismiss the present petition.
2 . (2010) 0 Supreme (P&H) 2667 KL,J Crl.P. No.857 of 2021 4
9. As discussed above, the allegations against M/s. Ganesh Enterprises are that it is a dealer and was storing and selling pesticides without insecticides licenses. It has also stored and sold glyphosate 71% SG aluminum phosphate without source certificate. The said Enterprises has procured the same through illegal means and thereby selling to innocent farmers. Since the said Enterprises was conducting illegal business of selling insecticide in contravention of Rule - 10 of the Rules, 1971 and dishonestly inducing delivery of properties to farmers without issuing any bills, committed cheating and, therefore, the said Enterprises has committed cheating. It is also mentioned that the petitioners herein are responsible persons for the same.
10. Respondent No.1 has also conducted searches on 22.01.2021 at Godown of M/s. Ganesh Enterprises viz., D.No.7-8-55, Godown Road, Nizamabad and seized property under a cover of panchanama. She has also conducted searches on 23.01.2021 at Kaluru Cross Road, Sarangapur on the Lorry bearing registration No.AP 25UZ 883 and seized the said vehicle as well as the stock under a cover of panchanama. On 24.01.2021 at another Godown of M/s. Ganesh Enterprises was also searched viz., Godown No.6-26- 286, Godown Roa, Nizamabad and seized the stocks under a cover of panchanama, and so also at 6-25-277, Gurbabadi Road, on 25.01.2021.
11. The Insecticides Act, 1968 is a Central enactment. There is procedure for issuance of license, registration of insecticides etc. KL,J Crl.P. No.857 of 2021 5 Section - 29 of the Act, 1968 deals with 'offences and punishment'. As per Section - 29 (1 (c) and (d), whoever manufactures, sells, stocks or exhibits for sale or distributes an insecticide without a license, or sells or distributes an insecticide, in contravention of Section - 27, shall be punishable, an the period of punishment is also specifically prescribed therein. Section - 27 of the Act, 1968 deals with 'prohibition of sale, etc., of insecticides for reasons of public safety, which is reproduced as under:
"27.Prohibition of sale, etc., of insecticides for reasons of public safety.--(1) If, on receipt of a report under section 26 or otherwise, the Central Government or the State Government is of opinion for reasons to be recorded in writing, that the use of any insecticide specified in clause (e) of section 3 or any specific batch thereof is likely to involve such risk to human beings or animals as to render it expedient or necessary to take immediate action then that Government may, by notification in the Official Gazette, prohibit the sale, distribution or use of the insecticide or batch, in such area, to such extent and for such period (not exceeding sixty days) as may be specified in the notification pending investigation into the matter: Provided that where the investigation is not completed within the said period, the Central Government or the State Government, as the case may be, may extend it by such further period or periods not exceeding thirty days in the aggregate as it may specify in a like manner.
(2) If, as a result of its own investigation or on receipt of the report from the State Government, KL,J Crl.P. No.857 of 2021 6 and after consultation with the Registration Committee, the Central Government, is satisfied that the use of the said insecticide or batch is or is not likely to cause any such risk, it may pass such order (including an order refusing to register the insecticide or cancelling the certificate of registration, if any, granted in respect thereof) as it deems fit, depending on the circumstances of the case."
12. Rule - 10 of Rules, 1971 deals with procedure for application of license and issuance of the same for sale etc. Section - 9 of the Rules also deals with grant of licenses to manufacture insecticides.
13. As discussed above, in the complaint dated 22.01.2021 lodged by respondent No.1, the allegations are against dealer viz., M/s. Ganesh Enterprises. Respondent No.1 in the complaint simply stated that four persons whose names are mentioned therein are responsible for sale of insecticides without licenses. Admittedly, respondent No.1 has not lodged any complaint against M/s. Ganesh Enterprises and it is not an accused in the present crime. The Crime was registered against the petitioners herein and accused No.3. There is no mention as to whether they are partners of the said Enterprises and that they are responsible for day-to-day affairs of the said Enterprises. The details are not at all mentioned. There is no specific allegation that they are responsible for the commission of offence and their role in the commission of offence is also mentioned in the complaint dated 22.01.2021. The Apex Court in Sharad Kumar Sanghi1 KL,J Crl.P. No.857 of 2021 7 categorically held that criminal proceedings initiated against Managing Director of a Company without making the company as an accused are liable to be quashed.
14. As stated above, in the present case also, respondent No.1 did not mention that the petitioners are partners of said M/s. Ganesh Enterprises and they are responsible for day-to-day affairs of the said Enterprises. The said Enterprises is not an accused in the present case. Therefore, in the absence of the said Enterprises as an accused, the present proceedings against the petitioners are not maintainable.
15. As discussed above, Insecticides Act is a special enactment and procedure is also laid down in the said Act including issuance of license for manufacture of insecticides and sale of insecticides. Procedure is also specifically prescribed with regard to violation of the provisions of the Act. Punishment is also specifically prescribed. Section - 3 (e) of the Act, 1961 deals with definition of 'insecticide'. Section - 3 (g) deals with 'Insecticide Inspector'. Section - 3 (i) deals with Licensing Officer and Section - 3 (j) deals with 'manufacture', while Section 3 (k) deals with 'misbranded'.
16. As discussed above, the procedure is also contemplated for confiscation of seized stock. Section - 27 deals with 'prohibition of sale etc. of insecticides for reasons of public safety. Section - 29 deals with offences and punishment. Rule - 10 of the Rules, 1971 deals with licenses for sale etc., of insecticides.
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17. Respondent No.1 instead of following the said procedure, lodged the complaint with the police, who in turn registered a case in Crime No.22 of 2021 for the offence under Section - 420 of IPC instead of registering a case under the provisions of the Act, 1968 and the Rules thereof. The Punjab and Haryana High Court in Rakesh Kumar2, relying on the decisions rendered by the Apex court, quashed the proceedings of a crime registered under Section - 420 of IPC on the allegation of sale of duplicate insecticides.
18. Following the said principle and in view of the above discussion, the present petition is allowed, the proceedings in Crime No.22 of 2021 of Town - I Nizamabad Police Station are hereby quashed against the petitioners herein alone. In view of the same, the respondents are directed not to interfere with the business activities of the petitioners herein and they are also directed to release the seized property / stock to the petitioners on proper identification and under acknowledgment. In the event of the seized property / stock is deposited with the Magistrate concerned, liberty is given to the petitioners to file appropriate application before the Magistrate concerned for return of the seized property / stock, and the Magistrate shall consider the same and return the seized property / stock on proper verification of ownership and identification and under acknowledgment.
KL,J Crl.P. No.857 of 2021 9 As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 05th March, 2021 Mgr