Punjab-Haryana High Court
Bhavesh Shah vs State Of Punjab on 6 January, 2023
CRM-M-28297-2019 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-28297-2019
Date of Decision:- 06.01.2023
BHAVESH SHAH
......Petitioner
Versus
STATE OF PUNJAB
......Respondent
CRM-M-49293-2019
M/S G.S.P. CROP SCIENCE PVT. LTD. & ORS.
......Petitioners
Versus
STATE OF PUNJAB
......Respondent
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Gaurav Chopra, Sr. Advocate with
Ms. Seerat Saldi, Advocate for the petitioner(s).
Mr. Kirat Singh Sidhu, DAG, Punjab.
JASJIT SINGH BEDI, J.
This order shall dispose of two petitions bearing No.CRM-M-
28297-2019 titled as Bhavesh Shah Versus State of Punjab and CRM-M-
49293-2019 titled as M/s G.S.P. Crop. Science Pvt. Ltd. & others Versus
State of Punjab & others. For the sake of convenience, the facts are being
taken from CRM-M-28297-2019 as both these petitions are arising out of
the same complaint and summoning order.
2. The present petitions have been filed under Section 482 Cr.P.C.
for quashing of the complaint No.12 of 2018 dated 23.03.2018 (Annexure
P-1) registered under Sections 3(k)(i), 17, 18 and 33 punishable under
Section 29(2) of Insecticides Act, 1968 read with Rules 27(5) of
Insecticides Rules, 1971 titled "State Vs. M/s Malout Beej Bhandar &
Others", the summoning order dated 23.03.2018 (Annexure P-2) and all
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subsequent proceedings arising therefrom.
3. The brief facts of the case as emanating from the respective
pleadings are that on 29.12.2012 one Hassan Singh, Insecticide Inspector
Malout visited the shop premises of a dealer i.e. M/s Malout Beej Bhandar
Shop No.113, New Grain Market, Malout and drew a sample of insecticide
namely, Clodinafop-Propargyl 15% WP, Batch No.GSR-010,
manufacturing date 09.12.2021, expiry date 08.12.2013 out of a 160 gms
packing. The insecticide was allegedly manufactured and supplied by the
accused/Company i.e. M/s G.S.P. Crop Science Pvt. Ltd. 404, Lalita
Complex, 325/3, Rasal Road, Navrangpura, Ahmedabad, Gujarat. The
Insecticide Inspector cut opened the sealed pack of 160 gms and withdrew
60 gms insecticide material and further divided it into three parts of
samples weighing 20 gms each.
4. Thereafter, on 02.01.2013 i.e. after about 03 days from the date
of the sampling, out of three parts of the sample taken, one part was sent to
the Senior Analyst, State Insecticide Testing Laboratory, Bathinda for
analysis and the same was found to be misbranded after analysis vide
analysis report dated 29.01.2013. The referral part of the sample was found
to be misbranded after analysis by the Central Insecticide Laboratory,
Faridabad as the active ingredient contents were found to be 13.79 %
instead of 15 % vide analysis report dated 14.03.2013. The copies of the
analysis report dated 29.01.2013 of the State Insecticide Testing Laboratory,
Bathinda and re-analysis report dated 14.03.2013 of Central Insecticide
Laboratory, Faridabad are annexed as Annexures P-3 and P-4 to the petition
(CRM-M-28297-2019).
5. Thereafter, one show cause notice is purported to have been
issued by the office of the Chief Agriculture Officer, Sri Muktsar Sahib
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(hereinafter referred to as "CAO, Sri Muktsar Sahib") to the manufacturing
company. A reply is stated to have been submitted by the Company which
was not considered by the CAO, Sri Muktsar Sahib.
6. Be that as it may, the Agricultural Development Officer (PP)
Malout (hereinafter referred to as "ADO, Malout") wrote a letter No.698
dated 08.09.2014 to the CAO, Sri Muktsar Sahib seeking grant of sanction
to be accorded by the Joint Director Agriculture (PP) Punjab (hereinafter
referred to as "JDA (PP) Punjab") to initiate appropriate proceedings. The
copy of the said letter signed by Hassan Singh, ADO (PP) Malout is
annexed as Annexure R-1 to the State reply dated 22.10.2019.
7. Thereafter, vide letter No.1862 dated 30.11.2015, the Assistant
Plant Officer Hassan Singh wrote yet another letter to the CAO, Sri
Muktsar Sahib seeking grant of sanction to be obtained from the JDA (PP)
Punjab so that the case could be instituted in time. The copy of the said
letter is annexed as Annexure R-2 to the State reply dated 22.10.2019.
8. Thereafter, Hassan Singh, Insecticide Inspector (then
Inspection Officer, Fazilka) through the CAO, Sri Muktsar Sahib wrote to
the JDA (PP) Punjab a letter dated 07.12.2017 seeking grant of sanction. It
was stated in the letter that the file pertaining to the present case had been
missing in office because of which sanction could not be sought earlier. The
copy of the said letter duly despatched to the JDA (PP) Punjab who is the
sanctioning authority is annexed as Annexure R-3 to the State reply dated
22.10.2019.
A perusal of this letter would reveal that it contained 25 pages
where all the necessary documents were enclosed by the concerned
Insecticide Inspector/complainant Hassan Singh.
9. Based on the aforementioned communication (Annexure R-3),
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sanction/written consent for prosecution was granted vide order dated
16.02.2018 by the concerned authority i.e. Joint Director Agriculture.
A perusal of this letter would reveal that the sanction has been
granted pursuant to the letter dated 08.12.2017. The copy of the letter
granting sanction/written consent is annexed as Annexure P-5 to the
petition.
10. Thereafter, on 23.03.2018, the impugned complaint was
instituted in the Court of Sub-Divisional Judicial Magistrate, Malout, Sri
Muktsar Sahib who took cognizance upon the same vide his order dated
23.03.2018 leading to the passing of the summoning order. The copies of
the complaint No.12 of 2018 dated 23.03.2018 and summoning order dated
23.03.2018 passed by the Sub-Divisional Judicial Magistrate, Malout, Sri
Muktsar Sahib are annexed as Annexures P-1 and P-2 to the petition.
11. The aforementioned complaint No.12 of 2018 dated
23.03.2018 (Annexure P-1), summoning order dated 23.03.2018 (Annexure
P-2) and further proceedings arising therefrom are under challenge before
this Court.
12. The primary ground raised in both these petitions for quashing
of the complaint and summoning order was that there was a fatal delay in
filing of the complaint of as much as 05 years, 01 month and 23 days. In
addition, it was contended on behalf of the Bhavesh Shah, Director
(petitioner in CRM-M- 28297-2019) that once there was an Authorised
Officer/responsible person/nominated person (Firoz Rafiq Ahmed Diwan-
petitioner No.3 in CRM-M-49293-2019) who was Incharge of Quality
Control, the petitioner could not have been summoned to face Trial.
13. When this petition (CRM-M-28297-2019) for quashing had
come up for hearing, proceedings were stayed vide order dated 05.07.2019
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and the Insecticide Inspector who had taken the sample was asked to be
personally present in Court on the next date of hearing. On 20.09.2019,
Hassan Singh Insecticide Inspector, Sri Muktsar Sahib was present in Court
and sought time to submit his explanation qua the fatal delay in lodging the
complaint. Thereafter, vide order dated 30.10.2019, the Chief Agricultural
Officer Beant Singh, Sri Muktsar Sahib was also directed to be present in
Court as he was also stated to be responsible for the delay in initiation of
proceedings. Thereafter, vide order dated 28.11.2019, a cost of Rs.1 lakh
was imposed on the Insecticide Inspector, Hassan Singh which was to be
deposited with the District Legal Services Authority, Sri Muktsar Sahib
within a period of 15 days from his personal pocket. This was on account of
the fact that the Chief Agricultural Officer Beant Singh, Sri Muktsar Sahib
had explained to the Court that the fault lay with the Insecticide Inspector
for the delay in seeking sanction. Thereafter, the matter was adjourned from
time to time.
14. Meanwhile, on 22.10.2019, a reply was submitted by way of
an affidavit of Hassan Singh, Insecticide Inspector then posted as Assistant
Plant Protection Officer, Malout, Sri Muktsar Sahib on behalf of the
respondent. After narrating the admitted facts, the affidavit sought to
explain the delay in filing of the complaint by stating that the answering
respondent had written letters dated 08.09.2014 (Annexure R-1) and
30.11.2015 (Annexure R-2) to the office of the CAO, Sri Muktsar Sahib for
obtaining sanction. In fact, the file was misplaced in the office of the Chief
Agricultural Officer, Sri Muktsar Sahib and the same was located in the
month of December, 2017. Thereafter, the answering respondent had sent
the case to the competent authority i.e. Office of the JDA (PP) Punjab,
Agriculture Bhawan, S.A.S. Nagar to accord sanction vide letter dated
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07/08.12.2017 (Annexure R-3) pursuant to which sanction was granted vide
letter dated 16.02.2018 (Annexure P-5). If the period 08.09.2014 to
16.02.2018 was excluded, then there was no delay in filing of the
complaint. It is also contended that in terms of Section 33 of the
Insecticides Act, 1968, the petitioners could not escape liability and every
person who was Incharge of and liable for the conduct of the business of
the Company was to be prosecuted including the Director.
15. The learned Senior counsel for the petitioners contends that
there has been a delay of 05 years, 01 month and 23 days in filing the
complaint. The offence under the Act is punishable by a maximum of 02
years imprisonment and therefore, the complaint could have been filed only
within 03 years from the date of knowledge of commission of offence. The
report of the public analyst was available on 29.01.2013 and the complaint
was instituted on 23.03.2018. Even if the period between 08.12.2017 (date
on which the sanction was sought from the appropriate authority) to the
time sanction was granted on 16.02.2018 (by sanctioning authority) was
excluded, even then, the complaint was hopelessly time barred. He
contends that letters dated 08.09.2014 (Annexure R-1) and 30.11.2015
(Annexure R-2) written by the complainant-Hassan Singh to the CAO (who
was not the sanctioning authority) would not in any manner help the case of
the complainant by extending the period of limitation. It is his contention
that since the said communications were sent to the inappropriate authority
the period 08.09.2014 (letter Annexure R-1) to 16.02.2018 (Sanction
granted Annexure P-5) cannot be excluded while calculating limitation. He
contends that in terms of Section 470 (3) Cr.P.C. the period that was to be
excluded was only from the time when the application was made for
obtaining sanction uptil the time the sanction was obtained. In the present
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case, a perusal of the order granting sanction (Annexure P-5) would show
that the application was made to the appropriate authority i.e. the CAO, Sri
Muktsar Sahib only on 08.12.2017 (Annexure R-3) and sanction was
accorded on 16.02.2018. Only this period could be excluded. He thus,
contends that the complaint is hopelessly time barred and is liable to be
quashed in view of the judgments in M/s Cheminova India Ltd. & another
Vs. State of Punjab & another, 2021(3) R.C.R. (Criminal) 750,M/s Doaba
Seed Store & another Vs. State of Punjab, 2018(4) Law Herald 3396, M/s
Insecticides India Ltd. & another Vs. State of Punjab, CRM-M-4744-
2018, decided on 16.11.2018 and Zimidara Kheti & another Vs. State of
Punjab, 2019(1) R.C.R. (Criminal) 288.
16. The learned State counsel on the other hand while referring to
the reply dated 22.10.2019 contends that the period to be excluded would
be from 08.09.2014 i.e. the date on which the ADO, Malout first wrote to
the CAO seeking sanction from the JDA (PP) Punjab vide letter dated
08.09.2014 (Annexure R-1) to the actual grant of sanction on 16.02.2018
(Annexure P-5). If this period was excluded, the complaint was filed within
limitation. He contends that the delay had taken place on account of the fact
that the file had been misplaced. He however admits that Annexures R-1
and R-2 do not refer to any loss of the records of the case. He also admits
that the said letters have been addressed to the CAO, Sri Muktsar Sahib
who is not the sanctioning authority, the sanctioning authority being the
JDA (PP) Punjab. He, however, while referring to the letters submits that
the ADO, Malout had written to the CAO, Sri Muktsar Sahib but asked him
to obtain sanction from the JDA (PP) Punjab. He thus contends that the
letter dated 08.09.2019 (Annexure R-1) is the first letter which had been
written for the grant of sanction and therefore, the period upto 16.02.2018
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(Annexure P-5) is to be excluded while computing limitation.
17. I have heard the learned counsel for the parties at length.
18. Before proceeding in the matter, it would be apposite to
examine the relevant provisions of law in this regard:-
Section 29 of the Insecticides Act, 1968, reads as under:-
29. Offences and punishment.-(1) Whoever,-
(a) imports, manufactures, sells, stocks or exhibits for sale
or distributes any insecticide deemed to be misbranded
under sub-clause (i) or sub-clause (iii) or sub-clause (viii)
of clause (k) of section 3; or
(b) imports or manufactures any insecticide without a
certificate of registration; or
(c) manufactures, sells, stocks or exhibits for sale or
distributes an insecticide without a licence; or
(d) sells or distributes an insecticide, in contravention of
section 27; or
(e) causes an insecticide, the use of which has been
prohibited under section 27, to be used by any worker; or
(f) obstructs an Insecticide Inspector in the exercise of his
powers or discharge of his duties under this Act or the
rules made thereunder, [shall be punishable--
(i) for the first offence, with imprisonment for a term
which may extend to two years, or with fine which shall
not be less than ten thousand rupees but which may
extend to fifty thousand rupees, or with both;
(ii) for the second and a subsequent offence, with
imprisonment for a term which may extend to three
years, or with fine which shall not be less than fifteen
thousand rupees but which may extend to seventy-five
thousand rupees, or with both.]
(2) Whoever uses an insecticide in contravention of any
provision of this act or any rule made thereunder shall be
punishable with fine [which shall not be less than five
hundred rupees but which may extend to five thousand
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rupees, or imprisonment for a term which may extend to six
months, or with both].
(3) Whoever contravenes any of the other provisions of this
Act or any rule made thereunder or any condition of a
certificate of registration or licence granted thereunder,
shall be punishable--
(i) for the first offence, with imprisonment for a term
which may extend to [one year, or with fine which
shall not be less than five thousand rupees but which
may extend to twenty-five thousand rupees, or with
both],
(ii) for the second and a subsequent offence, with
imprisonment for a term which may extend to [two
years, or with fine which shall not be less than ten
thousand rupees but which may extend to fifty
thousand rupees, or with both].
(4) If any person convicted of an offence under this Act
commits a like offence afterwards it shall be lawful for the
court before which the second or subsequent conviction
takes place to cause the offender's name and place of
residence, the offence and the penalty imposed to be
published in such newspapers or in such other manner as
the court may direct.
Section 31 of the Insecticides Act, 1968, reads as under:-
31. Cognizance and trial of offences.-(1) No prosecution
for an offence under this Act shall be instituted except by,
or with the written consent of, the State Government or a
person authorised in this behalf by the State Government.
(2) No court inferior to that of a 1[Metropolitan
Magistrate or a Judicial Magistrate of the first class] shall
try any offence under this Act.
Section 33 of the Insecticides Act, 1968 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
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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.
Section 468 of the Cr.P.C. reads as under:-
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.
(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
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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 of the Cr.P.C. reads as under:-
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 first 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 first day on which the identity of the
offender is known to the person aggrieved by the offence
or to the police officer making investigation into the
offence, whichever is earlier.
(2) In computing the said period, the day from which such
period is to be computed shall be excluded.
Section 470 of the Cr.P.C. reads as under:-
470. Exclusion of time in certain cases.-(1) In computing
the period of limitation, the time during which any person
has been prosecuting with due diligence another
prosecution, whether in a Court of first instance or in a
Court of appeal or revision, against the offender, shall be
excluded:
Provided that no such exclusion shall be made unless the
prosecution relates to the same facts' and is prosecuted in
good faith in a Court which from defect of jurisdiction or
other cause of a like nature, is unable to entertain it.
(2) Where the institution of the prosecution in respect of
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an offence has been stayed by an injunction or order, then,
in computing the period of limitation, the period of the
continuance of the injunction or order, the day on which it
was issued or made, and the day on which it was
withdrawn, shall be excluded.
(3) Where notice of prosecution for an offence has been
given, or where, under any law for the time being in force,
the previous consent or sanction of the Government or any
other authority is required for the institution of any
prosecution for an offence, then, in computing the period
of limitation, the period of such notice or, as the case may
be, the time required for obtaining such consent or
sanction shall be excluded.
Explanation.- In computing the time required for obtaining
the consent or sanction of the Government or any other
authority, the date on which the application was made for
obtaining the consent or sanction and the date of receipt
of the order of the Government or other authority shall
both be excluded.
(4) In computing the period of limitation, the time during
which the offender-
(a) has been absent from India or from any territory
outside India which is under the administration of the
Central Government, or
(b) has avoided arrest by absconding or concealing
himself, shall be excluded.
Section 473 of the Cr.P.C. reads as under:-
473. Extension of period of limitation in certain cases.-
Notwithstanding anything contained in the foregoing
provisions of this Chapter, any Court may take cognizance
of an offence after the expiry of the period of limitation, if
it is satisfied on the facts and in the circumstances of the
case that the delay has been properly explained or that it
is necessary so to do in the interests of justice.
19. It would also be relevant to examine the various judgments on
the issue of limitation.
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The Hon'ble Supreme Court in the case of M/s Cheminova
India Ltd. (supra), held as under:-
"10. In the present case, it is not in dispute, the
complainant-2nd respondent has received the report of
analysis on 14.03.2011 from the Insecticide Testing
Laboratory, Ludhiana and the complaint was lodged on
25.03.2014 which is beyond a period of three years from
14.03.2011. The only submission of the learned counsel
for the State is that further report from the Central
Insecticide Testing Laboratory was received on 09.12.2011
which is the conclusive evidence of the facts, as such, the
complaint is within the period of limitation. We are not
convinced with such submission made by learned counsel
for the State. When it is clear from the language of
Section 469, Cr.PC that the period of limitation shall
commence on the date of offence, there is no reason to
seek computation of limitation only from the date of
receipt of report of the Central Insecticide Testing
Laboratory, Faridabad. As per the procedure prescribed
under the Statute, i.e., Insecticide Act, 1968 and the rules
made thereunder, the Insecticide Testing Laboratory,
Ludhiana was the competent authority to which the
sample was sent on 17.02.2011, after drawing on
10.02.2011, and the report of analysis was received on
14.03.2011, as such the said date is said to be the crucial
date for commencement of period of limitation. By virtue
of the said report received on 14.03.2011 which states that
the active ingredient of the sample was only to the extent
34.70% as against the labelled declaration of 40%, it is
clear that it is the date of offence allegedly committed by
the accused. Merely because a further request is made for
sending the sample to the Central Insecticide Testing
Laboratory, as contemplated under Section 24(4) of the
Act, which report was received on 09.12.2011, receipt of
such analysis report on 09.12.2011 cannot be the basis for
commencement of limitation. The report of analysis
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received from the Insecticide Testing Laboratory,
Ludhiana on 14.03.2011 itself indicates misbranding, as
stated in the complaint, thus, the period of limitation
within the meaning of Section 469, Cr.PC commences from
14.03.2011 only. In that view of the matter, we are clearly
of the view that the complaint filed is barred by limitation
and allowing the proceedings to go on, on such complaint,
which is ex facie barred by limitation is nothing but
amounts to abuse of process of law. Though the learned
counsel has also raised other grounds in support of
quashing, as we are persuaded to accept his submission
that complaint filed is barred by limitation, it is not
necessary to deal with such other grounds raised."
(emphasis supplied)
This Court in the case of M/s Doaba Seed Store (supra), held
as under:-
13. In Sanjay Kumar's case (supra), Hon'ble Supreme
Court held that the limitation to file complaint starts from
the date of receipt of report of Public Analyst and not from
the date of collection of sample by the Drug Inspector.
Similarly, this Court in Om Parkash Aggarwal's case
(supra), held that the limitation for filing a complaint
under the Act is three years from the date of receipt of
State Public Analyst Report and the complaint instituted
after a period of three years is barred under Section 468
Cr.P.C., 1973.
14. In the case in hand, the sample was drawn on
18.07.2012 and the analysis report was received on
22.08.2012, whereas the complaint was filed in the Court
on 01.07.2016, as is apparent from Annexure P-1.
Therefore, this Court finds that there appears to be
substance in the argument of learned counsel for the
petitioners. Merely because the sample was sent for a
second laboratory test on the request of accused is of no
help for the complainant to delay the filing of the
complaint. The petitioners cannot be held responsible for
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the delay, if any, as the same is solely at the behest of the
complainant.
15. It would be pertinent to mention here that though the
petitioners could have availed the remedy of revision, but
when from the face of it, this Court finds that the
complaint was filed by the complainant beyond the period
of limitation, in case the said complaint is allowed to be
continued, it would be a futile exercise. Therefore, this
Court while invoking the provisions of Section 482 Cr.P.C.
1973 can entertain the present petition. In this regard, this
Court finds support from Prabhu Chawla Versus State of
Rajasthan and another 2016(4) RCR (Criminal) 270,
wherein Hon'ble Supreme Court has held that a petition
for quashing the order of Magistrate is maintainable and
the availability of remedy under Section 397 Cr.PC would
not make a petition under Section 482 Cr.PC not
maintainable.
16. Thus, for the reasons stated hereinabove, the present
petitions are allowed and there being a statutory bar of
limitation, this Court has no hesitation to quash the
complaint dated 01.07.2016 (Annexure P-1) as well as the
summoning order dated 04.08.2016 (Annexure P-3)
passed by learned Chief Judicial Magistrate, SBS Nagar."
(emphasis supplied)
In the case of M/s Insecticides India Ltd. (supra), held as
under:-
6. Having given thoughtful consideration to the rival
submissions made by learned counsel for the parties, this
Court finds merit in the instant petition for the reasons to
follow:-
1. Undisputedly, the premises of M/s Sitara Lal Raghvir
Parkash was raided by the complainant on 16.07.2011.
Report qua misbranding of first sample was received on
25.07.2011 and second report from Faridabad authority
was received on 01.02.2012. The impugned complaint was
filed on 22.07.2015 i.e. after a period of 3 years, 5 months
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and 10 days. The period of limitation for filing the
complaint under sub clause 2(c) of Section 468 Cr.P.C,
1973 is three years. Therefore, after expiry of three years,
the impugned complaint could not have been filed.
Sanction letter (P-3) shows that the complainant applied
for sanction on 19.08.2014 and the same was granted on
10.11.2014 i.e. within three months. In case, the period of
three months is excluded, the impugned complaint filed on
22.07.2015 can still easily be declared being hopelessly
time barred.
7. In the rulings referred above, it is held that limitation to
prosecute under the Act starts from the date of receipt of report
of public analysts and not from the date of collection of sample
and if, the complaint is filed beyond the period of limitation of
three years, the same is not maintainable."
(emphasis supplied)
In the case of M/s Zimidara Kheti (supra), held as under:-
10. Having heard the learned counsel for the parties, this
Court finds adequate substance in the argument raised by
learned counsel for the petitioners. A bare perusal of the
facts of the case on record shows that the report of the
Government Analyst had been received by the complainant
on 26.06.2007. Even the sanction for prosecution, though
applied too belatedly on 12.01.2010, was received on
17.09.2010 itself. Hence as per the mandate of Section
468(3) of Cr.P.C; and judgment of Supreme Court in the
case of State of Rajasthan(Supra) complaint in the present
case could have been filed, at the best, within a period of
03 years from the date of receipt of report of the
Government Analyst. However, the complaint has been
filed after 08 years from the said date. Hence, the
complaint in the present case is hopelessly time barred.
***** **** ****
13.Since taking of cognizance by the Court itself is
prohibited; in case the complaint not filed within the
prescribed period, therefore, the subsequent proceeding in
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the form of summoning, order also stands vitiated. This
Court has already considered this aspect in the case of
Sohan Singh and others(supra). The case of the present
petitioner is further fortified by the fact that in the same
complaint, the manufacturer, who is primarily responsible
for manufacturing of spurious insecticide, already stands
discharged on the basis of complaint being time barred
only. Learned State counsel has not brought on record
anything to show that the State has even challenged that
order in favour of the manufacturer. In view of this, there
is no legal justification, whatsoever, for continuing the
proceedings against the petitioners; who happens to be
only a retailer of the product; found to be spurious."
(emphasis supplied)
20. A combined reading of the aforementioned provisions of law
and the judgments would make it apparent that the period of limitation
begins from the receipt of the report of the Analyst. The period of limitation
is 03 years from the said date. However, the time spent in obtaining
sanction is to be excluded.
21. Coming back to the facts of the present case, it would be
relevant to note certain dates and events which have been enumerated
below in a tabulated form:-
Raid/shop visit/sample collected 29.12.2012 --
Sent for sampling 02.01.2013 --
1st sample of Insecticide Quality Control 29.01.2013 Annexure P-3
Laboratory, Bathinda.
2nd Sample of Central Insecticides 14.03.2013 Annexure P-4
Laboratory, NH-IV, Faridabad.
Letter No.698 sent by Hassan Singh, ADO 08.09.2014 Annexure R-1
(PP), Malout to CAO, Sri Muktsar Sahib
seeking sanction to be accorded from JDA
(PP) Punjab.
Letter No.1862 sent by Hassan Singh, Asst. 30.11.2015 Annexure R-2
Plant Protection Officer, Malout, Distt.
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Muktsar Sahib to CAO, Sri Muktsar Sahib
seeking sanction to be accorded from JDA,
(PP) Punjab.
Letter from Hassan Singh, Insecticide 07/08.12.2017 Annexure R-3
Inspector (then Inspection Officer, Fazilka)
through the CAO, Sri Muktsar Sahib to
JDA (PP) Punjab seeking grant of
sanction.
Sanction for prosecution granted by JDA 16.02.2018 Annexure P-5
(PP) Punjab.
Complaint No.12 of 2018 dated 23.03.2018 Annexure P-1
23.03.2018 registered under Sections
3(k)(i), 17, 18 and 33 punishable under
Section 29(2) of Insecticides Act, 1968
read with Rules 27(5) of Insecticides
Rules, 1971.
Summoning order 23.03.2018 Annexure P-2
22. As per the learned Senior counsel for the petitioner(s), in terms
of Section 470 Cr.P.C., only the period between 07/08.12.2017 and
16.02.2018 could be excluded since that time was utilized to obtain
sanction. On the other hand, as per the respondent/complainant, the period
between 08.09.2014 to 16.02.2018 was to be excluded which would make
the filing of the complaint within the period of limitation.
A perusal of Annexures R-1 and R-2 would show that the said
communications have been despatched by the ADO, Malout to the CAO,
Sri Muktsar Sahib. The CAO, Sri Muktsar Sahib is not the sanctioning
authority as is apparent from the letters themselves. The sanctioning
authority was the JDA (PP) Punjab. Nothing prevented the ADO, Malout in
writing to the JDA (PP) Punjab seeking grant of sanction. In fact, the last
application dated 07.12.2017 was addressed by the complainant/Hassan
Singh to the JDA (PP) Punjab though routed through the CAO, Sri Muktsar
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Sahib. It was on this application only that the sanction was actually granted.
A perusal of the explanation to Section 470(3) Cr.P.C. explanation would
reveal that the time which was to be excluded was from the date on which
the application was made for obtaining the consent or sanction and the date
of receipt of the order granting consent/sanction by the Government. In the
present case, a perusal of Annexure P-5 i.e. the sanctioning order would
show that it is based on a communication dated 07/08.12.2017 (Annexure
R-3) and not on the earlier communications dated 08.09.2014 (Annexure
R-1) or 30.11.2015 (Annexure R-2). In fact, if the arguments of the State
was accepted that Annexures R-1 and Annexure R-2 were part of the
process of obtaining sanction, then the process of obtaining sanction would
be a never ending process. The complainant would repeatedly write to an
authority which is admittedly not the appropriate sanctioning authority,
thereby causing significant delay in prosecution and unending misery for a
prospective accused as well.
Though, there has been a reference in the letter dated
07/08.12.2017 (Annexure R-3) of the record being missing from the office
leading to the delay, this fact of the record being missing does not find
mention in either letters Annexures R-1 or R-2. Further, if the complainant
had tried to explain the delay in filing of the complaint on account of the
record being misplaced, nothing prevented him from moving an appropriate
application under Section 473 Cr.P.C. seeking extension of period of
limitation. In that eventuality, the summoning Court could have been
considered the prayer on the basis of the facts of the case. However, the
same for inexplicable reasons has not been done. Therefore, it is apparent
that the period to be excluded in calculating limitation of three years was
only between 07/08.12.2017 (Annexure R-3) and 16.02.2018 (Annexure
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P-5) and not 08.09.2019 (Annexure R-1) to 16.02.2018 (Annexure P-5) as
is being canvassed by the State.
Going by the aforementioned discussion, the period of
limitation would begin from 29.01.2013 when the report of the sample was
first obtained from the Insecticide Quality Control Laboratory, Bathinda,
Department of Agriculture, Punjab. However, the complaint has been filed
on 23.03.2018. Excluding the period 07/08.12.2017 to 16.02.2018, it can be
seen that the complaint has been filed after approximately five years though
it should have been filed within three years from 29.01.2013 excluding the
time spent in obtaining sanction. Therefore, the complaint No.12 of 2018
dated 23.03.2018 (Annexure P-1) is hopelessly barred by time.
23. In view of the aforementioned discussion, the present petitions
are allowed and the complaint No.12 of 2018 dated 23.03.2018 (Annexure
P-1) registered under Sections 3(k)(i), 17, 18 and 33 punishable under
Section 29(2) of Insecticides Act, 1968 read with Rules 27(5) of
Insecticides Rules, 1971, the summoning order dated 23.03.2018
(Annexure P-2) along with all subsequent proceedings arising therefrom are
hereby quashed.
06.01.2023 (JASJIT SINGH BEDI)
Jitesh JUDGE
Whether speaking/reasoned:- Yes/No
Whether Reportable:- Yes/No
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