The central legal point established in the judgment is that the prosecution of a distributor for selling misbranded insecticides under the Insecticide Act is vitiated if the company responsible for the production is not prosecuted as mandated by Sec. 33(1) of the Act.

JUDGMENT :

Rajendra Badamikar, J.

1. The revision petitioner has filed this petition under Sec. 397 read with Sec. 401 of Cr.P.C. for setting aside the judgment and sentence passed in Crl.A.No. 5/2012 dtd. 13/7/2012 on the file of the I Fast Track Court, Koppal confirming the judgment of conviction and order of sentence passed in CC No. 4/2011 on the file of JMFC, Koppal.

2. The brief facts leading to the case are that the revision petitioner was accused and he was prosecuted for the offence punishable under Sec. 29(1) of the Insecticide Act. As per case of the prosecution the accused is the occupier and responsible person dealing with the sale of insecticide. On 2/2/2010 the complainant visited the sale unit of the accused situated in Halavarthi and gave notice under Sec. 22(5) of the Act regarding drawing of sample of insecticides for chemical examination. According to the complainant at that time the accused has offered to sell Endo Sulfan 35% and there were 250 ml 400 containers in the shop premises. The complainant obtained three bottles as samples and he handed over one sample to the accused and obtained necessary endorsement. Then in this regard he has also drawn mahazar and one sample was sent to examination to Insecticides Laboratory situated in Bellary. On 4/3/2010 he received report that sample bought from the shop of the accused was misbranded and thereafter he issued show cause notice to the accused to submit explanation. The accused has forwarded an application and sought for re- examination of the other sample with a request to send the same to the Central Laboratory. Accordingly, the other sample was sent to Central Insecticides Laboratry, Faridabad and the report was received on 20/9/2010 disclose that sample sent was also misbranded. Thereafter after obtaining sanction the prosecution was initiated. The accused has appeared and after recording the evidence the magistrate has convicted the accused under Sec. 255(2) of Cr.P.C. for the offence under Sec. 29(1)(a) of Insecticides Act and imposed imprisonment for a period of one year with fine of Rs.50,000.00 with default clause of three months imprisonment. This order came to be challenged in Crl.A.No. 5/2012 and the learned sessions judge presiding over the Fast Track Court by judgment dtd. 13/7/2012 dismissed the appeal by confirming the conviction and imposition of sentence. The accused has deposited the fine. However, he has filed this revision.

3. Learned counsel for the revision petitioner would contend that the entire prosecution itself is vitiated as a wrong person has been prosecuted as accused is not responsible for business as he is only a distributor but he is not a manufacturer. He would also contend that there is violation of the provisions under Sec. 24(1) of the Act. He would also contend that the benefit of Sec. 30(3) of the Act is also not extended. He would contend that though the sanction was obtained to prosecute the company represented by manufacturer but only he being a distributor was prosecuted but the company was spared which is impermissible under Sec. 33(1) of the Insecticides Act. Hence, he would seek for setting aside the impugned order by allowing the revision.

4. Learned HCGP would support the judgments of the Courts below.

5. It is necessary to note here that the complainant has bought the sample on 2/2/2010 and one sample was handed over to accused and one sample was retained by him and third sample was sent by him to Insecticides Laboratory Bellary wherein it is reported that sample is found to be misbranded. It is not under serious dispute. Subsequently as per the request of the accused the second sample was sent to Central laboratory situated in Faridabad, Haryana and report dtd. 20/9/2010 also disclose that it is misbranded. Hence, admittedly it is evident that the report of the State Laboratory as well as the Central Laboratory are uniform in reporting with the samples are misbranded. Hence, prima-facie there is evidence that the