ORDER
1. These three petitioners are filed under S. 482, Crl.P.C. for quashing the proceedings in C.C. No. 83 of 1983 on the file of the court of the Additional Judicial First Class Magistrate, Adoni in C.C. No. 125 of 1983 on the file of the VI Additional Munsif Magistrate, Guntur and C.C. No. 120/82 on the file of the Court of the Judicial First Class Magistrate, Dharmavaram respectively.
2. In C.C. No. 83 of 1983 on the file of the court of the Additional Judicial First Class Magistrate Adoni a complaint was filed by the Deputy Director of Agriculture (Training) Kurnool, under S. 29(1)(a)(i) read with S. 3(k)(i) of the Insecticides Act, 1968 (hereinafter referred as the Act) against eight accused. It is stated in the complaint that on 2-1-1982 at 11.00 a.m. Sri B. Hussain Reddy, Quality Control Inspector inspected the shop of the 1st accused at Adoni and found three bags of agricultural sulphur each weighing 50 Kgs. manufactured by M/s. I.A. and I.C. Private Ltd., Bombay (A-6) and supplied to the dealer (A-1). The Inspector found other insecticides in the premises at the time of inspection and they were stocked there for sale. A sample was taken from the three bags of agricultural sulphur 85% DP W/W. The said product was manufactured by A-6 company during June, 1981 (Batch No. 55) and its date of expiry was May, 1983. The quality Control Inspector served a notice in Form 12 to A-5 in the presence of mediators intimating the purpose for which the sample was being drawn. He took 600 grams of agricultural sulphur at the rate of 200 grams from each bag. He mixed it and divided into three equal parts. Each part was kept in a polyethene bag and sealed. The Inspector paid Rs. 2/- to A-5 towards the cost of 600 grams of sulphur alleged to have been purchased by him. He gave one sample packet to A-5 under his acknowledgment. One of the sample packets was sent for analysis to the Assistant Director of Agriculture (Senior Analyst) Insecticides Laboratory, Ananthapur. On analysis, the Analyst opined that the sample sent to him was misbranded since it contained only 72-70% D.P. W/W of sulphur as against the guaranteed percentage of 85% as labelled on the bags. On receipt of the report, the Inspector served a copy of the report on Accused No. 5 on 18-5-1982 and obtained his acknowledgment. The Inspector seized the three bags of misbranded Agricultural sulphur under a panchanama in the presence of two mediators and produced the seized stock before the court for custody on the every same day i.e. on 18-1-1982. On behalf of accused No. 1 it was notified writing on 31-9-1982 to the Inspector that evidence will be adduced in contravention of the report of the analyst. Accused No. 1 filed Crl.M.P. No. 652 of 1982 to send the sample for analysis. That petition was allowed. The Inspector deposited the sample in the court on 16-6-1982. It was despatched to the Central Insecticides Laboratory, Bombay on 28-7-1982 by the court. The report of the Central Insecticides laboratory Bombay, also reveals that the sample sent to it has shown a low ingredient of 51.4% W/W as against the guaranteed percentage of 85% B.P. W/W. A charge sheet was filed on 28-2-1983 against Accused Nos. 1 to 8 of whom Accused No. 6 is the manufacturing firm at Bombay Accused No. 7 is the Managing Director of Accused No. 6 firm and accused No. 8 is the Chief Chemist of the said firm. Crl.M.P. No. 1805/83 is filed by Accused Nos. 6, 7 and 8 to quash the proceedings in the said C.C. No. 83/83.
3. In C.C. No. 125 of 1983 on the file of the court of the VI Additional Munsif Magistrate, Guntur, a complaint was filed by the Deputy Director of Agriculture (Training) Guntur, against Accused Nos. 1 to 7 under Section 29(1)(a) read with S. 3(k)(i) of the Insecticides Act, 1968. It is mentioned in the complaint that on 22-9-1980 the Quality Control Inspector-1 Guntur inspected the business premises of accused No. 1 firm and took samples of insecticides found in the premises of the said firm and sent one of the samples to the Assistant Director of Agriculture, PTL Rajendranagar for analysis. The insecticides is “Monocrataphs 40” Samples were drawn from the five containers as mentioned in the complaint. The analyst found only one of the five samples to be to misbranded. Regarding the other four samples the analyst opined that the percentage of active ingredient of monocrate Tech. 36% contained in the sample is permissible. As sample No. 70/80 has been found to be misbranded by the analyst, a copy of the said report was served on the Accused No. 1 firm and its records were seized 24-11-1980. It is mentioned that the assistant Depot Manager (A-2) gave a statement at the time of the seizure of the records that the misbranded insecticide was received from the head office Bombay and produced the invoice No. BPM T8 Guntur 125/BQ dt. 27-8-1980. The records were produced before the Second Additional Munsif Magistrate, Guntur. As per the report of the Analyst, the sample contained 32.53% of Monocrate Tech. 36% as against the branded Monocrate Tech 36% as such it was misbranded. Criminal M.P. No. 2324/83 is filed by Accused Nos. 1 to 7 to quash the proceedings in C.C. No. 125 of 1983 on the file of the VI Additional Munsif Magistrate’s court, Guntur.
4. In C.C. No. 120 of 1983 on the file of the court of the Judicial First Magistrate, Dharmavaram, the Deputy Director of Agriculture. Anantapur filed a complaint against Accused Nos. 1 to 6 under u/s. 29(1)(a) read with S. 17(1)(a), 18(1)(c) and 3(k)(i) of the Insecticides Act, 1968. The case as stated in the complaint is that the 1st accused is a dealer and the 3rd accused is a distributor of insecticides. The 5th accused is a company manufacturing insecticides, situated a Ahmedabad, Gujarat State and the 6th accused is the Director of the Accused No. 5 company. On 4-12-1981 at about 8.30 a.m. the Insecticide Inspector visited the shop of Accused No. 1 and took three samples of the insecticide Mathyl Parabin 50% exhibited for sale. Following the procedure laid down under the Act and the rules made thereunder the sample was sent to the analyst, Guntur and he submitted a report that Mathyl Parabin 50% E.C. was misbranded. The misbranded Mathyl Parabin 50% E.C. in 100 M.L. packing was manufactured by accused Nos. 5 and 6 with batch No. 8. The date of manufacture was mentioned as 1-9-1981. The date of expiry alleged to be November, 1982. Accused No. 1 firm represented by accused No. 2 is said to have exhibited the misbranded insecticides for sale and the same was distributed by Accused Nos. 3 and 4 to Accused No. 1. Accused Nos. 5 and 6 are the alleged manufacturers of the misbranded insecticide. Crl. M.P. No. 2638 is filed by Accused Nos. 5 and 6 to quash the proceedings in C.C. No. 120 of 1982. They filed a petition in the court of the Judicial First Class Magistrate, Dharmavaram under S. 24(4) of the Act requesting the court to send sample No. 58 to the central Insecticides Laboratory for analysis. The said petition was dismissed on 6-7-1983 on the ground that the sample M.O. 5 cannot be sent to the Central Insecticides Laboratory for analysis eight months after the date of expiry of the product and no useful purpose will be served in getting the opinion of the Central Insecticides Laboratory.
5. All the three petitioners are filed by the three manufacturing units and the Managing Director or the Director of each unit as the case may be. On behalf of the petitioners it is contended by the learned counsel that S. 24 does not provide an opportunity to the manufacturer to controvert the report of the Analyst when the sample is drawn from the dealer and the report is served only on him. The safeguard provided under Sub-section (4) of S. 24 becomes illusory according to the learned counsel if the prosecution is launched after the expiry date of the product manufactured by the concerned company. It is submitted that even if the facts stated in each one of the complaints are taken to be correct for the sake of argument and the sample analysed about one or one and half an year after the date of manufacture is found to be having less percentage of the active ingredient, it cannot be said to be misbranded having regard to the definition in S. 3(k)(i) of the Act. At any rate, according to the learned counsel without mentioning in the complaint as to which Director is in charge of the business of the company, no prosecution can be launched against the Directors or the Managing Director or the Chief Chemist. With reference to the first contention, the learned counsel has drawn my attention to the various provisions of the Insecticides Act 1968 and the rules made thereunder. Under S. 3(k) an insecticide shall be deemed to be misbranded if its label contains any statement, design or graphic representation relating thereto which is false or misleading in any material particular, or if its package is otherwise deceptive in respect of its contents, or ……” Under S. 17 no person shall impart or manufacture any misbranded insecticides. Section 18 incorporates the provision that “No person shall sell, stock or exhibit for sale, distribute, transport use, or cause to be, used by any worker. –
(a) - - - - - - - - - - - (b) - - - - - - - - - - - (c) any insecticide in contravention of any other provision of this act or of any rule made thereunder."
Section 29 deals with offences and punishments. Under S. 33 when an offence is committed by a company every person who was in charge or was responsible to the company for the conduct of the business at the time the offence was committed shall be deemed to be guilty of the offence. As per the proviso any person who proves that the offence was committed without his knowledge shall not be liable to be punished. Under S. 24 the Insecticide Inspector is required to deliver a copy of the report received from the analyst to the person from whom the sample was taken. It is open to such person under sub-section (3) of S. 24 to notify in writing the Inspector within 28 days of the receipt of a copy of the report that he intends to adduce evidence in contravention of the report. Under sub-section (4) if the sample was not analysed by the Central Insecticide Laboratory where a person who has notified his intention to adduce evidence in controversion of the Analyst’s report, the court may send the sample produced before it for analysis to the Central Insecticide Laboratory of its own notion or at the request of the complainant or of the accused. R. 27 of the Insecticides Rules, 1971 specifies the duties of the Insecticide Inspector. Some of which are :
(1) He should inspect all establishment selling insecticides within the area of his jurisdiction not less than three times in a year.
(2) He should procure and send for test and analysis, samples of insecticide which he had reason to suspect are being sold, stocked or accepted for sale in contravention of the provisions of the Act and the rules made thereunder.
(3) He can institute prosecutions in respects of breaches of the Act and the rules made thereunder.
Under R. 28 certain duties are imposed on the specially authorised Inspectors to inspect the premises of the manufactures of insecticides. In this regard the Inspector shall inspect the premises of the manufacturer at least twice a year to satisfy himself if the conditions of the licence and the provisions of the Act and the rules are being observed. He is authorised to draw samples of insecticides manufactured and send them for test or analysis and report to the Government all occurrences of poisoning.
6. Having regard to the provisions referred to above, it is submitted by the learned counsel for the petitioners that the Act and the Rules contemplate two different and distinct procedures one for inspection of the premises of the dealer and the other for the inspection of the premises of the manufacturer and to send the sample drawn from each of them for analysis. When a sample is drawn from a dealer and on the basis of the analysis of that sample prosecution is launched against the dealer as well as the manufacturer, it is mandatory on the part of the Inspector to serve a copy of the report of the analyst only on the person from whom the sample was drawn i.e. the dealer and no such copy of the report is required to be served on the manufacturer under S. 24 of the Act. In such a case, it is urged by the learned counsel that the manufacturer does not have an opportunity to controvert the report of the analyst and by the time the complaint is filed and summons is served on him, if the life of the product expires, the manufacturer is deprived of the valuable right to request the court to send the sample for analysis to the Central Laboratory. Having regard to the facts and circumstances in these three cases, it is asserted by the learned counsel that there was inordinate delay in filing the complaints and as a matter of fact, when the manufacturer filed an application in one of the cases to send the sample for analysis to the Central Laboratory, the court rejected it on the ground that no useful purpose would be served by sending the sample after the expiry date of the product. It is contended that the prosecution in such circumstances is liable to be quashed. On the other hand, it is submitted by the learned public prosecutor that S. 24(4) is held to be valid by a division bench of this court in Y. R. S. Rao v. Dy. Collector of Agriculture, 1980 Cri LJ 1364. Under this provision the accused are entitled to request the court to send a sample for analysis to the Central Laboratory and as such it cannot be said that the accused are deprived of the right to request the court to send the samples for analysis to the Central Laboratory, even though a copy of the report has not been served on the manufacturer. It is further submitted that when section 24(3) specifically provides that the report of the analyst shall be the conclusive evidence of the facts stated therein, unless the person on whom it was served notifies his intention in writing to adduce his evidence in contravention of the same, it is open to the other accused to plead that the report of the analyst does not amount to conclusive evidence against them and that the inordinate delay in filing the complaint has caused prejudice to them and the prosecution launched against such of those accused who are not served with the analyst report, is not sustainable. If there is inordinate delay in filing a complaint by reason of which some of the accused are deprived of the right to request the court to send sample for analysis to the central Laboratory, that can be examined as it is one of the matters to be taken into consideration by the court below in appraising the evidence and recording a finding as to the guilt of the accused. In my view when the matter falls in the realm of appreciation of evidence, a complaint cannot be quashed at this stage under S. 482 Cr.P.C.
7. The learned counsel for the petitioner has relied upon the judgment of the Supreme Court in State of Karnataka v. L. Muniswamy, to point out the circumstances under which a complaint or a charge-sheet can be quashed under Section 482 of the Criminal Procedure Code. Dealing with the scope and extent of the power under S. 482 Cr.P.C. that can be exercised by the Court their Lordship, of the Supreme Court observed as follows :
“In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in Civil and Criminal matters in designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceedings in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provisions which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.”
Referring to the facts of the case, the learned Judges held :
“A few bits here and a few bits there on which the prosecution proposes to rely are woefully inadequate for connecting the respondents with the crime, howsoever skillfully one may attempt to weave those bits into a presentable whole. There is no material on the record on which any tribunal could reasonably convict the respondents for any offence connected with the assault on the complainant.
The fact of the matter is that there is no material on record to come to the conclusion that the respondent is mainly connected with the question leading to the prosecution. The learned judges have referred to the judgment of justice Gajendragadkar in R. P. Kapur v. State of Punjab, and reiterated that :
“the three instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not be regarded as exhaustive. Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 ought not be encased within the strait-jacket or a rigid formula.”
Placing strong reliance upon this judgment, it is contended by the learned counsel for the petitioners that the allegations made in the complaints against the manufacturing companies, their Managing Directors or directors as the case may be even if taken to be true and correct do not constitute an offence against the manufacturers. It is emphatically argued that in particular when the prosecution was launched after a long lapse of time and that too after the life of the product has expired by reason of which the petitioners are deprived of the valuable right to send the samples for analysis to the Central Laboratory, it cannot be said that there is any relevant material on the basis of which the court can come to the conclusion that the petitioners have committed the offence alleged against them. In such a case according to the learned counsel, the complaints are liable to be quashed as otherwise grave injustice will be caused to the petitioners. This argument is countered by the learned Public Prosecutor placing reliance upon the judgment of the Supreme Court in R. P. Kapur v. State of Punjab, supra. In this judgment the Supreme Court has laid down the following circumstances under which the inherent power of the court under S. 482 of the Cr.P.C. can be exercised.
1. There is a legal bar against the institution or continuance of the criminal proceeding and absence of the requisite sanction.
2. The allegations made in the complaint or the first information report even if they are taken at their face value and accepted in their entirety, do not constitute the alleged offence.
3. Where there is no legal evidence adduced in support of the case bringing home the guilt of the accused.
The Supreme Court made it clear that in exercising the inherent jurisdiction, the court should not embark upon an enquiry as to whether the evidence in question is reliable and sufficient or not.
8. According to the learned Public Prosecutor whether the report of the Analyst already produced before the court is sufficient evidence or not and if the complaint is filed after a long lapse of time whether any reliance can be placed by the court upon such a report, whether the petitioners herein are deprived of the right to request the court to send the samples for analysis to the Central Laboratory are matters which come within the realm of appreciation of evidence and as such the complaints cannot be quashed in exercise of inherent powers under S. 482 Cr.P.C. on those grounds.
9. I have already referred to the allegations made in the complaints in these three cases. It is stated in each of the complaints that the Insecticides Inspector inspected the premises, took samples and sent them for analysis. In all the three cases, copy of the analyst’s report was served on the person from whom the sample was drawn. Under sub-section (3) of S. 24 the report of the analyst is conclusive evidence subject to certain conditions. It is held by a Division Bench of this court that under sub-section (4) of S. 24 each one of the accused has a right to request the court to send the sample for analysis to the Central Laboratory. If a complaint is filed after a long lapse of time and the petitioners are deprived for the right to request the court to send the sample for analysis to the Central Laboratory, it is for the court below to take that aspect into consideration and decide as to the prejudice caused to the petitioners and how far the report of the analyst under S. 24(3) can be relied upon. In considering this matter, the court has to necessarily go into the facts of the case and decide whether the accused can be held guilty or not. If I am to consider the various contentions raised by the learned counsel for the petitioners and the Public Prosecutor and give a decision thereon, I have necessarily to go into the merits of the case. I am of the opinion that it will not be just and proper for this court at this stage to go into the merits of the case when the proceedings are pending before the court below.
10. It is an undisputed fact that the three companies which filed these petitions along with their Managing Director or Directors as the case may be are the manufacturers of different kinds of insecticides. Their products are marketed and sold in different places in the country through various dealers. Under the Act, manufacturing or marketing substandard insecticide is an offence. Similarly sale by dealer of a substandard insecticide is also an offence. Merely because they are two distinct offences it cannot be said that the dealer and the manufacturer cannot be prosecuted at one and the same time by launching prosecution against both of them. As is held by the Supreme Court in State of Punjab v. Mohan Chand, that :
“if manufacturing substandard fertiliser is by itself an offence and marketing the sub-standard fertiliser is itself a distinct offence but they are so inter-connected as cause and effect, both can be tried at one or the other place. If one manufactures the sub-standard fertiliser, wherever it is marketed the inter-relation or casual connection is of cause and effect.”
If a sample drawn by the Inspector from dealer is found to be misbranded, it is no doubt open to the manufacturer to contend that the percentage of active ingredient is found to be less because of inadequate storage facilities or for any other reasons. The question cannot be gone into in this proceeding under S. 482 Cr.P.C.
11. It is next submitted by the learned counsel for the petitioners that in C.C. No. 83 of 1983 the Managing Director and the Chief Chemist of Accused No. 6 firm are impleaded as accused and there is no allegation in the complaint that they are in charge of the business of the said company. In para 11 of the complaint it is stated that Accused No. 6 company is the manufacturer and accused No. 7 is the Managing Director of the said company and he is responsible for all the affairs of the firm. So far as the chemist accused No. 8 is concerned it is stated that he has formulated the misbranded sulphur under his supervision and supplied to Accused No. 1 shop direct. So far as the chemist is concerned it is stated that he has merely formulated the misbranded sulphur. He cannot be said to be in charge of the business of the company. It is no doubt true that the Managing Director is stated to be responsible for all the affairs of the firm. When a chemist is not concerned with the business of the company, he cannot be impleaded as an accused having regard to the provisions under S. 33 of the Act. If in the course of trial it is found by the court below that any other person is liable to be proceeded against, the court can at any stage try any person along with the accused and proceed against such person for the offence which he appears to have committed. It is not mentioned in the complaint that accused No. 8 is in charge of the business of the company. In such a case, I hold that so far as the accused No. 8 is concerned, the complaint is liable to be quashed.
12. In C.C. No. 125 of 1983, Accused Nos. 5, 6 and 7 who are directors of accused No. 3 company are impleaded as accused. But nowhere in the complaint is it stated that they are in charge of the business of the company. The Managing Director is impleaded as accused No. 4. Merely because accused Nos. 5, 6 and 7 happened to be directors, they cannot be impleaded as accused unless it is stated that they are in charge of the business of the company or that the misbranded insecticides were sold with their knowledge. No allegation is made so far as accused Nos. 5, 6 and 7 are concerned, in the complaint that they are either in charge of the business of the company or the misbranded insecticides were sold with their knowledge. So, the complaint is liable to be quashed so far as accused Nos. 5, 6 and 7 are concerned.
13. In C.C. No. 120 of 1982 accused No. 6 who is the Director of Accused No. 5 company is impleaded as one of the accused. But it is not mentioned in the complaint whether accused No. 6 is in charge of the business of the company. In Delhi Municipality v. Ram Kishan, the powers of the court under Ss. 482 and 319 Cr.P.C. are considered. In this case where prosecution was launched against some of the Directors of a firm along with the Manager it was held by the Supreme Court that :
“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 complaint, that there is any act committed by the Directors from which reasonable inference can be drawn that he 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 Nos. 4 and 7) has been made to ex facie on the allegation made in the complaint and the proceedings against them were rightly quashed.”
It was observed by their Lordships that :
“there are ample provisions in the Code of Criminal Procedure, 1973 in which the court can take cognizance against persons who have not been made accused and try them in the same manner along with the other accused under S. 319 Cr.P.C.”
As no case is made out against accused No. 6 in C.C. No. 120 of 1982 the complaint is liable to be quashed so far he is concerned. In these three cases, no allegations are made against some of the Directors and the chemist regarding the part played by them in the conduct of the business or the alleged sale of misbranded insecticides with their knowledge. I have no hesitation in holding that the complaints are liable to be quashed to the extent stated above. It is however made clear that it is open to the court below under S. 319 Cr.P.C. to proceed against such of those persons who are found to have committed the offence along with the other accused.
14. For the reasons stated above the petitions are partly allowed and the complaints are quashed to the extent stated above.
15. Petitions Partly Allowed.