Kanwaljit Singh Joson vs Union Of India
2024 Latest Caselaw 8928 HP

Himachal Pradesh High Court

Kanwaljit Singh Joson vs Union Of India on 5 July, 2024

Neutral Citation No.(2024:HHC:5106)

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr. MMO No.757 of 2023

Reserved on: 25.06.2024 Date of Decision: 05.07.2024

Kanwaljit Singh Joson ....Petitioner Versus

Union of India ....Respondent

Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 Yes.

For the Petitioner : Mr. Rakesh Verma and Ms. Aanchal Sharma, Advocates.

For the Respondent : Mr. Shashi Shirshoo, Senior Government Standing Counsel.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

quashing of Complaint No.7 of 2021 titled "Union of India Vs.

M/s Pioneer Pesticides Pvt. Ltd. & Others" for the commission of

an offence punishable under Section 29 of the Insecticides Act,

1968 and Rules, 1971 framed thereunder.

2. It has been asserted that the petitioner is a Director

of M/s Pioneer Pesticides Pvt. Limited which is a registered

manufacturer of various insecticides/pesticides. The Company

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

has a fully equipped laboratory for testing the products

manufactured by it. The Department of Agriculture procures

.

the insecticides from the Company. As per the complainant, he

visited the factory premises of the Company on 18.07.2020.

Insecticides were being loaded for dispatch to the Department

of Agriculture. The Inspector asked Suresh Kochhar to make

two samples available for quality control. Suresh Kochhar told

the Inspector that he did not have any separate/additional

insecticide samples. The Inspector carried the supplier consent

letter, copies of CIB and manufacturing Licence with him

without issuing or preparing any Seizure Memo. The same

Inspector visited the manufacturing unit of the Company at

Dera Bassi on 20.07.2020 and obtained the samples of Farrata

(Lambda Cyhalothrin 5% EC) and Fipronil Technical without any

resistance from any person. The complainant issued a show

cause notice to the Company on 31.07.2020 for violation of

Section 21 of the Insecticides Act, 1968. The company sent a

detailed reply. However, the Inspector did not consider the

reply and filed a complaint against the Company and the

petitioner. The complaint was filed after obtaining the

prosecution sanction from the Director of Agriculture. The

sanction letter was issued without due application of mind. The

petitioner was not afforded any opportunity of being heard by

serving a show cause notice upon him. The Court cannot take

.

cognizance of the commission of an offence punishable under

the Insecticide Act without a proper sanction. No prosecution

sanction was granted against the petitioner. His name is not

mentioned in the prosecution sanction issued by the

Competent Authority. The petitioner is a Director of the

Company and is vicariously liable for the deeds of the

Company. However, no averment was made in the complaint

that the petitioner was in charge and responsible to the

Company for the conduct of its business. In the absence of

such an averment, the petitioner could not have been

summoned. The Company has a prerogative to choose its

representative during the proceeding and it cannot be

compelled to be represented by a particular Officer. The

inspection was conducted on 18.07.2020 when COVID-19 was

at its peak and the movement was restricted. The Company

only had the material which was being loaded against the

supply order to the Government. The Company never

obstructed the Inspector from taking the sample. The inspector

had concealed the factum of taking samples from the factory at

Dera Bassi. Hence, the present petition for quashing the

complaint filed by the petitioner.

.

3. The petition is opposed by filing a reply making

preliminary submissions that the averments made by the

petitioner require the appreciation of the evidence and trial and

it is impermissible to conduct a mini-trial while deciding the

petition under Section 482 of Cr. PC. Insecticides are inherently

toxic and are required to be regulated. Insecticides cannot be

imported or manufactured without obtaining a registration

certificate or import permit. They cannot be distributed,

exhibited or stacked for sale without a licence issued by a

Competent Authority. The Inspector has a right to take the

sample as per the law. The Inspector visited the premises of

the Company and found that it had eight pesticides. The

inspection team tried to draw the samples, but Suresh Kochhar,

the Manager of the Firm did not allow to team to draw the

samples. He also failed to produce the record regarding the

manufacture and sale of the insecticides. A show cause notice

was issued to the Company and the Company sent a reply,

which was not found to be satisfactory. The Director of the

Company is liable for the commission of crime committed by

the Company. The learned Magistrate has rightly issued the

summons and there is no infirmity in the order passed by the

learned Magistrate. Hence, it was prayed that the present

.

petition be dismissed.

4. I have heard Mr Rakesh Verma and Ms Aanchal

Sharma, learned counsel for the petitioner and Mr Shashi

Shirshoo, learned Senior Government Standing Counsel for the

respondent.

5. Mr Rakesh Verma and Ms Aanchal Sharma, learned

counsel for the petitioner submitted that the complaint was filed

without a proper sanction. The sanction order does not mention

the name of the petitioner and uses the words

manufacturers/firms/dealers M/s Pioneer Pesticides Pvt. Ltd.

Similar sanction order was held to be bad by this Court in

Indofil Chemical Company Vs. State of H.P. 2009 Latest

HLJ (H.P.) 473. He also relied upon the judgment of the Punjab

& Haryana High Court in Rajinder Kumar Vs. State of

Punjab 1996(2) AICLR 30 and Sanjay Aggarwal Vs. State

of Punjab (Punjab & Haryana) 2012(4) R.C.R. (Criminal)

988. He further submitted that Section 33 of the Insecticides

Act, provides that the Company as well as the person, who was

In Charge and responsible for the conduct of the business of the

Company shall be deemed to be guilty and liable to be

proceeded with. Hence, the complainant needed to aver in its

complaint that the petitioner was the Director and In Charge of

.

the Company and responsible for its day-to-day affairs. The

petitioner cannot be held liable in the absence of such

averments. He relied upon the judgments of Hon'ble Supreme

in State of NCT of Delhi Vs. Rajiv Khurana 2010(11) SCC

469, Punjab & Haryana High Court in KCS Bhatti Vs. State of

Haryana 2015(1) R.C.R. (Criminal) 162 in support of his

submission. He prayed that the present petition be allowed and

the complaint be quashed.

6. Mr Shashi Shirshoo, learned Senior Government

Standing Counsel for the respondent submitted that the

sanction was proper. The name of M/s Pioneer Pesticides Pvt.

Ltd., was mentioned in it. The petitioner is a Director of the

Company and there was no requirement to mention his name.

The petitioner is In charge and responsible to the Company by

his position as a Director. Learned Trial Court had rightly

summoned the petitioner and there is no infirmity in the order

passed by the learned Trial Court. Hence, he prayed that the

present petition be dismissed.

7. I have given considerable thought to the submissions

at the bar and have gone through the records carefully.

8. Sanction letter Annexure P-5 reads as under:-

"In exercise of the power vested in me vide Notification

.

No. Agr. F(10)-7/2004-L, dated 04.09.2006 from the

Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla, under Section 31 of the Insecticide Act, 1968. I hereby accord sanction to prosecute the

Manufacturers/Firm/Dealers M/s Pioneer Pesticides Pvt. Ltd., 115, Industrial area, HPSIDC, Baddi, District Solan, H.P. for non-conformity and breach of Provisions of the Insecticides Act, 1968".

9. It is apparent from the perusal of the sanction order

that the name of the petitioner has not been mentioned, the

petitioner is not a Firm or Dealer, but the Director of the

manufacturer. Hence, his case could not be covered under the

term Firm/Dealers. A similar sanction order was considered by

this Court in Indofil Chemical Company (supra), wherein the

sanction order read as under: -

"In exercise of the power vested in me vide Notification No. Agr. F(10)-7/2001-L, dated 04.09.2006 from the

secretary (Agriculture) to the Government of Himachal Pradesh, Shimla, under Section 31 of the Insecticide Act, 1968, I hereby accord sanction to prosecute the

Manufacturers/Firm/Dealers for violating the Insecticides Act 1968, as suggested by you."

10. It was held that the sanction order was not proper. It

does not mention who had taken the sample and from whom,

the sample was taken. It was observed:

25. The sanction letter does not spell out the application of mind. In this sanction letter/order, it is not mentioned

as to who has taken the sample, from whom this sample was taken, what was the report of the Analyst and how the sample was found misbranded. Further, this sanction was given pursuant to the letter received from the

.

Deputy Director of Agriculture-cum-Licensing Officer, as

indicated above, which is not on record nor it is known what was the material/record produced before the sanctioning authority for its perusal before according to

the sanction. From the plain reading of the letter aforesaid, it is not made out what record was produced and perused by the Director while granting the sanction against the accused persons including the petitioner. It

was observed by the Supreme Court in Mohd. Iqbal v. State of Andhra Pradesh, [AIR 1979 SC 677]:

"What the Court has to see is whether or not the Sanctioning Authority at the time of

giving sanction was aware of the facts

constituting the offence and applied its mind for the same; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. The grant of

sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to

Government servants against frivolous prosecution and must therefore be strictly

complied with before any prosecution be launched against the public servant concerned."

26. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution, the sanctioning authority has a discretion to grant or withhold the sanction. A sanction which simply names the person to be prosecuted and specifies the provision of the order which is alleged to have been contraband is not sufficient compliance of the mandatory provision.

27. By now it is well established that the sanctioning authority has to apply its independent mind to the facts and circumstances of the case rather it should show the application of mind independently without being

influenced by the external authority or force, but in the instant case, what to talk of mentioning of facts and perusal of the record, it did not spell out the names of the accused persons against whom the sanction was given

.

and the tragedy is that the sanctioning authority has

acted upon the suggestion of the Insecticide Inspector as indicated in the endorsement of the letter quoted above, then where is the application of mind."

11. Similarly, it was held in Sanjay Aggarwal (supra)

that where the sanction was granted for lodging prosecution

against M/s Jai Shree Rasayan Udyog Ltd., Delhi through Sh.

Sanjay Aggarwal, but not individually against Sanjay Aggarwal,

it can be treated to be a sanction against the company and not

against the individual. The individual cannot be prosecuted

based upon such a sanction. It was observed:

7. The submission of learned State counsel noticed above is contrary to the ratio of the cases cited as above. The sanction granted in this case is for launching prosecution

against M/s Jai Shree Rasayan Udyog Ltd., Delhi through Sanjay Aggarwal and another but not individually against

Sanjay Aggarwal. It will be deemed to be a sanction for initiating prosecution against the company which may like to be represented through its authorized

representative. However, this sanction is defective qua Sanjay Aggarwal. If Sanjay Aggarwal was to be prosecuted under the Act, the sanction should have been individually against him and not as a representative of the company.

8. No decision laying down a proposition to the contrary has been cited before me by learned State counsel. So, in view of the law settled by this court by way of the above said two decisions, the prosecution of Sanjay Aggarwal on the basis of the sanction accorded vide Annexure P4 is bad. Therefore, the prosecution against the petitioner is liable to be quashed. The petition is, consequently,

allowed and the complaint (Annexure P1) along with all subsequent proceedings including the summoning order dated 12.6.2000 (Annexure P2) are quashed by the petitioner.

.

12. A similar view was taken in Rajinder Kumar

(supra), and it was held that when written consent was given

to prosecute a firm and no sanction was given to prosecute a

partner the complaint is liable to be quashed against the

partner. Since, in the present case, the name of the petitioner

is not mentioned in the sanction order; therefore, there is a

force in the submission of the learned counsel for the

petitioner that he cannot be prosecuted for want of sanction

and the complaint is liable to be quashed against him.

13. Section 33 of the Insecticides Act, deals with the

offences committed by the companies, it reads as under:

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:

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 other officer shall also be

deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.--For the purpose of this section,--

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "Director", in relation to a firm, means a partner in the firm.

14. It is apparent from the bare perusal of the Section

that when the offence is committed by a Company, the

company as well as the person, who is In Charge and

responsible to it for its affairs is liable to be prosecuted.

Therefore, it is necessary to mention in the complaint that the

person is In charge of the Company and responsible for day-to-

day working. It was laid down by the Hon'ble Supreme Court in

Rajiv Khurana (supra) that it is the primary responsibility of

the complainant to aver in the complaint that the person was

Director and In charge of the business or responsible for its

affairs in the absence of which, he cannot be held liable. It was

observed:

"20. The legal position which emerges from a series of judgments is clear and consistent that it is imperative to specifically aver in the complaint that the accused was in charge of and was responsible for the conduct of the

business of the company. Unless clear averments are specifically incorporated in the complaint, the respondent cannot be compelled to face the rigmarole of a criminal trial."

.

15. A similar view was taken by the Delhi High Court in

S.N. Subrahmanyam v. State, 2018 SCC OnLine Delhi

12447 and it was held:

"41. The questions relating to corporate liability and vicarious criminal liability of those connected to a

corporate body have come up in the past before the courts in the context of similar provisions contained in various statutes including Section 141 of the Negotiable Instruments Act, 1881 (for short, "Negotiable

Instruments Act"); Section 34 of Drugs and Cosmetics

Act, 1940 (for short, "Drugs Act"); Section 17(1) of the Prevention of Food Adulteration Act, 1954 (for short, 'PFA Act"); and Section 33 of the Insecticides Act, 1968 (for short, "Insecticides Act").

42. On corporate criminal liability, the following observations of a constitution bench of the Supreme Court in Standard Chartered Bank v. Directorate of

Enforcement, (2005) 4 SCC 530 provide useful guidance:--

"There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect

that corporations cannot commit a crime, the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents.

"xxx As in the case of torts, the general rule prevails that the corporation may be criminally liable for the

acts of an officer or agent, assumed to be done by him when exercising authorised powers, and without proof that his act was expressly authorised or approved by the corporation. In the statutes

.

defining crimes, the prohibition is frequently

directed against any "person" who commits the prohibited act, and in many statutes the term "person" is defined. Even if the person is not

specifically defined, it necessarily includes a corporation. It is usually construed to include a corporation so as to bring it within the prohibition of the statute and subject it to punishment. In most

of the statutes, the word "person" is defined to include a corporation.

xxxr Inasmuch as all criminal and quasi-criminal offences are creatures of statute, the amenability

of the corporation to prosecution necessarily depends upon the terminology employed in the statute. In the case of strict liability, the terminology employed by the legislature is such as

to reveal an intent that guilt shall not be predicated upon the automatic breach of the statute but on the establishment of the actus reus, subject to the

defence of due diligence. The law is primarily based on the terms of the statutes. In the case of absolute

liability where the legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutory

prohibition, no particular state of mind is a prerequisite to guilt. Corporations and individual persons stand on the same footing in the face of such a statutory offence. It is a case of automatic primary responsibility. Therefore, as regards corporate criminal liability, there is no doubt that a corporation or company could be prosecuted for any offence punishable under law, whether it is coming under the strict liability or under absolute liability.

xxx

All penal statutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on

.

any notion that there has been a slip that the thing

is so clearly within the mischief that it must have been intended to be included and would have been included if the thought of. All penal provisions like

all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment."

xxxxxxx

46. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1, while dealing with the applicability of Section 17(1) of PFA Act, the Supreme

Court observed as under:--

"15. So far as the Manager is concerned, we are satisfied that from the very nature of his duties, it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious

liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption

drawn by the complainant, that there is any act committed by the Directors from which a

reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement

with the argument of the High Court that no case against the Directors (Accused 4 to 7) has been made out ex-facie on the allegations made in the complaint and the proceedings against them were rightly quashed.

(emphasis supplied)

47. Following the aforesaid ruling, in construing the effect of Section 34 of the Drugs Act in a decision reported as State of Haryana v. Brij Lal Mittal, (1998) 5 SCC 343, it was held thus:--

"8 ...the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if, at the material time, he was in charge of and was also responsible to the

.

company for the conduct of its business. Simply

because a person is a director of the company it does not necessarily mean that he fulfils both the above requirements so as to make him liable.

Conversely, without being a director a person can be in charge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except for a bald

statement that the respondents were directors of the manufacturers, there is no other allegation to indicate, even prima facie, that they were in charge of the company and also responsible to the

company for the conduct of its business."

(emphasis supplied)

48. The counsel for the petitioners has placed reliance on National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330 and Pooja Ravinder

Devidasani v. State of Maharashtra, (2014) 16 SCC 1 both dealing with issues of vicarious liability under the Negotiable Instruments Act. In National Small

Industries Corpn. Ltd. (supra), it was observed thus:--

"13. Section 141 is a penal provision creating

vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a

complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability.

14. A company may have a number of Directors and make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in charge of and responsible for the

.

conduct of the business of the company without

anything more is not a sufficient or adequate fulfilment of the requirements under Section 141.

(emphasis supplied)

49. In Pooja Ravinder Devidasani (supra) while observing that "a director of a company is liable to be convicted for an offence committed by the company if

he/she was in charge of and was responsible to the company for the conduct of its business or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any negligence on

the part of the Director concerned" and noting that "in the entire complaint neither the role of the appellant in the

affairs of the company was explained nor in what manner the appellant is responsible for the conduct of business of the company was explained", the prosecution against the appellant for the offence under Section 138 of the

Negotiable Instruments Act was quashed.

50. While examining similar questions vis-à-vis Section 33 of the Insecticides Act, in the judgment reported as State

of NCT of Delhi v. Rajiv Khurana, (2010) 11 SCC 469, taking note of the law which has developed primarily in

the context of Section 141 of Negotiable Instruments Act, it was held thus:--

"17. The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of the company's business. Every Director need not be and is not in charge of the business of the company. If that is the position with regard to a Director, it is needless to emphasise that in the case of non-director officers, it is all the more necessary to state what were his duties and responsibilities in the conduct of the business of

the company and how and in what manner he is responsible or liable."

(emphasis supplied)

.

51. Reliance has also been placed on the decision of the

Supreme Court reported as S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89; Gunmala Sales v. Anu Mehta, (2015) 1 SCC 103 and Standard

Chartered Bank v. State of Maharashtra, (2016) 6 SCC 62, all cases dealing with issues relating to the effect and import of Section 141 of Negotiable Instruments Act. Taking note of such decisions in Jwala Devi Enterprises

P. Ltd. v. Fadi El Jaouni, 2018 SCC OnLine Del 10030 this Court culled out the settled law as under:--

"14. The guiding principles with reference to Section 141 of the Negotiable Instruments Act, 1881,

which are now well settled by judicial pronouncements,

some of which have been noted above, may be summarised thus:--

(i) It is only those persons who are in charge of or responsible for the conduct of the business of the

company at the time of the commission of the offence under Section 138 of the Negotiable Instruments Act, 1881 who can be subjected to

criminal action with reference to Section 141;

(ii) If the person committing an offence under

Section 138 of the Negotiable Instruments Act, 1881 is a company, the person who was signatory to the cheque which is dishonoured is clearly

responsible for the incriminating act and would be liable to be proceeded against under Section 141(2);

(iii) By virtue of the office they hold, the persons working in the capacity of the Managing Director or Joint Managing Director are deemed to be in charge of, and responsible for the conduct of the business of, the company and, therefore, can be proceeded against in terms of Section 141;

(iv) Merely because a person is a director of the company is not sufficient to make him liable under

Section 141, there being no deeming that by holding such position he is in charge of, or responsible for the conduct of the business of, the company within the meaning of Section 141;

.

(v) It is necessary for the complainant to specifically aver in the complaint that at the time the offence was committed, the person sought to

be prosecuted was in charge of, or responsible for the conduct of the business of, the company in terms of Section 141, there being no need for further particulars to be given in the complaint about his role, this being subject to proof at the

trial;

(vi) The person who has been summoned as an accused for offence under Section 138 of

the Negotiable Instruments Act, 1881 on the basis of averment that he was director of the company

accused, he being in charge of or responsible for the conduct of its business cannot get the complaint quashed by the High Court by filing a petition under Section 482 of the Code of Criminal

Procedure, 1973 merely on the ground that no particulars as to his role have been set out in the complaint; and

(vii) The person who has been summoned as an accused for an offence under Section 138 of

the Negotiable Instruments Act, 1881 by invoking the provision contained in Section 141 may persuade the High Court to quash the process in

the exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 by furnishing "some sterling incontrovertible material or acceptable circumstances"

substantiating his contention that he was not in charge of nor responsible for the conduct of the business of the company "at the time the offence was committed" and thereby showing a case that making him stand the trial would be an abuse of the process of court, but not otherwise."

(emphasis supplied)

52. Having regard to the statutory scheme and also the stipulations of the contract dated 29.03.2012, there is no escape from the prima facie conclusion that the construction contractor company is not only the principal

.

employer of the workers engaged in the construction

project where the fatal accident took place but was also responsible for arranging all the prescribed safety measured under the Rules. Section 47 read with Section

53 of the Building and Construction Workers Act thus creates a corporate criminal liability against the said company and by virtue of the principles of vicarious criminal liability, every person who, at the time when the

said offence was committed, was in-charge of, and was responsible to, the said company for the conduct of its business, as well as the company, are deemed to be liable to be proceeded against. Just as in the case of Section 141

of the Negotiable Instruments Act, by virtue of the office

they hold, such persons as work in the capacity of a managing director or the joint managing director or, for that matter, persons employed as in-charge of the construction work at the site, be it in a managerial position

or any supervisory position, are deemed to be in charge of and responsible for the conduct of the business, to the company. They can, therefore, be proceeded against in terms of Section 53. At the same time, however, merely

because a person is a "director" of the company is not sufficient to attract Section 53, there being no deeming

that by holding such position he is rendered to be one who is "in-charge of" or "responsible to the company" for the conduct of its business. As is also well settled in the

context of prosecutions under the Negotiable Instruments Act, though it is necessary to specifically aver in the complaint that the person sought to be prosecuted was in- charge of or responsible to the company for the conduct of its business "at the time the offence was committed", there is no requirement in law for "further particulars to be given" in the complaint about his role, this being subject matter of proof to be adduced at the trial." (Emphasis supplied)

16. Punjab & Haryana High Court has also taken a

similar view in Raghuram K. Shetty v. State of Punjab,

.

2022 SCC OnLine P&H 4060 wherein it was observed:

"21. It may be accentuated at the outset, that from a perusal of the aforesaid section, it becomes apparent that

in the case of a company that has committed an offence under this Act, only the persons, who were, at the time when the offence was committed, in charge of, or responsible to the company, for the day to day conduct of

the business, as well as the company, would be liable to be proceeded against. Sub Section 2 thereof, further envisages, that for attracting the liability for offences committed by the company, towards the Director,

Manager, Secretary or other officer of the company, their

specific consent connivance, or neglect has to be established.

22. The Hon'ble Supreme Court in State of NCT of Delhi v. Rajiv Khurana, (2010) 3 RCR (Cri) 912 has

considered the scope of Section 33 of the Act and having referred to previous decisions in Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 RCR (Cri)

73, State of Haryana v. Brij Lal Mittal, (1998) 2 RCR (Cri) 608, K.P.G. Nair v. Jindal Menthol India

Ltd., (2001) 10 SCC 218, Katta Sujatha (Smt) v. Fertilizers & Chemicals Travancore Ltd., (2002) 4 RCR (Cri) 502, Sabltha

Ramamurthy v. R.B.S. Channabasavaradhya, (2006) 4 RCR (Cri) 296 and K.K. Ahuja v. V.K. Vora, (2009) 3 RCR (Cri) 571 held as follows:--

"The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of the company's business. Every Director need not be and is not in charge of the business of the company. If that is the position with regard to a Director, it is needless to emphasize that in the case of non-director

officers, it is all the more necessary to state what his duties and responsibilities in the conduct of the business of the company and how and in what manner he is responsible or liable."

.

23. In fact, even with regard to the liability of the Managing Director, in case where the company had nominated other persons, who were already accused, Hon'ble Supreme

Court of India in the case of Cheminova India Ltd. (supra) held as under:--

"14. In the case on hand, it is not in dispute that on behalf of the 1 Appellant Company, 2 Appellant -

Managing Director has furnished an undertaking dated 22.01.2013, indicating that Shri. Madhukar R. Gite, Manager of the Company, has been nominated in the resolution passed by the

Company on 28.12.2012 to be in charge of and responsible to the said Company, to maintain the

quality of the pesticides manufactured by the said Company and he was authorised to exercise all such powers and to take all such steps, as may be necessary or expedient to prevent the commission

of any offence under the Act. Filing of such undertaking with the respondent is not disputed. Even, at Para 5.10 in the counter-affidavit filed

before this Court, it is pleaded by the respondents that by appointing persons responsible for affairs of

the Company, quality control, etc., 2 Appellant- Managing Director cannot escape his liability from offences committed by 1 Appellant-Company. In

view of the specific provision in the Act dealing with the offences by companies, which fixes the responsibility on the responsible person of the Company for the conduct of its business, by making bald and vague allegations, 2 Appellant - Managing Director cannot be prosecuted on vague allegation that he being the Managing Director of the 1 Appellant - Company, is overall responsible person for the conduct of the business of the Company and quality control, etc."

15. In the instant case, the Company has passed a resolution, fixing responsibility on one of the

Managers, namely, Mr. Madhukar R. Gite by way of a resolution and the same was furnished to the respondents by the 2nd Appellant in the shape of an undertaking on 22.01.2013. When furnishing of

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such undertaking fixing the responsibility of the

quality control of the products is not in dispute, there is no reason or justification for prosecuting the 2nd Appellant-Managing Director, on the vague

and specious plea that he was the Managing Director of the Company at the relevant time. A reading of Section 33 of the Act also makes it clear that only the 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.

20. 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 2 Appellant - Managing Director to prosecute him for the alleged offences"

24. This Court, while dealing with somewhat similar facts, in

the case of KCS Bhatti (supra) had made the following observations:--

"8. On perusal of Section 33 of the Act, it is clear

that in case of violation by the Company/firm under the Insecticide Act, the provisions of Section 33 of

the Act are required to be complied with. As per provisions of Section 33 of the Act, in case any offence has been committed by the company,

every person who was in charge or was responsible for the conduct of the business in the company shall be deemed to be guilty of the offence and he shall be liable to be proceeded against and punished accordingly. Subsection (2) makes it clear that when it is proved that the offence has been committed with the consent and connivance of the Director, Manager, Secretary or other officer of the company, he shall be liable to be proceeded against and punished accordingly. For the commission of said offence, there is to be specific averments in the complaint by the complainant

that such person against whom the complaint was filed was in charge and was responsible for the conduct of the company at a particular time and the alleged offence has been committed with his

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consent and connivance.

9. From a perusal of section 305 CrPC, it is clear that whenever any offence is committed by the

company and the company is prosecuted, then it is for the company to decide by whom the company is to be represented during the trial. The company cannot be compelled to be represented by a particular or a specific officer. Nowhere in the

complaint, it is mentioned that the petitioner was in charge and was responsible for the day-to-day conduct of business of the company at the relevant period or the alleged contravention took place in

the company with its consent or connivance. This

onus lies upon the prosecution to prove and only then a person can be prosecuted. These requirements have not been fulfilled while filing this complaint as neither requirement of section 33 of

the Act has been complied with nor specific averments have been made. The controversy in the present case is squarely covered by the judgment

of the case in P.D. Gara v. State of Punjab, (2014) 2 RCR (Cri) 945.

10. In view of the facts as mentioned above and the law position explained as discussed in the above-

mentioned paras, I am of the considered opinion

that mandatory provisions of section 33 of the Act have not been complied with as the complaint does not contain any specific averments with regard to the role of the present petitioner."

25. The fact that the petitioner-Raghuram Shetty is a Director of the company and not the "Managing Director", coupled with the fact that a specific person had been nominated as the person responsible for quality control also the absence of averment regarding his consent, connivance or neglect, and therefore, neither the submission of the learned State counsel nor the judgment in the case of Unikil Pesticides Pvt.

Ltd. (supra) applies to the facts of the present case as also keeping in view the judgment in the case of Cheminova India Ltd. (supra) wherein the proceedings even qua the Managing Director, were

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quashed.

17. In the present case, the complaint is silent regarding

the petitioner being In Charge and responsible to the Company

for its affairs. The complaint mentions various Sections of the

Insecticides Act and states in para 24 that the accused have

willfully and intentionally committed the offence punishable

under Sections 17, 18 and 21 and Rules 9, 15 and 28

punishable under Section 29 of the Insecticides Act. It

nowhere mentions that the petitioner is In Charge and

responsible for the affairs of the Company. Thus, in the

absence of necessary averments, it is not possible to prosecute

the petitioner.

18. Consequently, the present petition is allowed and the

complaint titled "Union of India Vs. M/s Pioneer Pesticides Pvt.

Limited & Others pending before the learned JMIC, Nalagarh,

Distt. Solan is ordered to be quashed qua the petitioner.

However, the same will not affect the prosecution of the

Company.

19. The observations made hereinbefore shall remain

confined to the disposal of the petition and will have no

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bearing, whatsoever, on the merits of the case.

    5th July 2024                        (Rakesh Kainthla)
          (Manish)                           Judge




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