Kaparthi Venkateshwar Rao vs D.Soumya
2021 Latest Caselaw 702 Tel

           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.

KL,J Crl.P. No.857 of 2021

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

. (2015) 12 SCC 781 KL,J Crl.P. No.857 of 2021

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.

. (2010) 0 Supreme (P&H) 2667 KL,J Crl.P. No.857 of 2021

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

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

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

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.

KL,J Crl.P. No.857 of 2021

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

As a sequel, miscellaneous petitions, if any, pending in the

Criminal Petition shall stand closed.

_________________ K. LAKSHMAN, J 05th March, 2021 Mgr