Distributors and vendors cannot be held liable under the Insecticides Act, 1968 if the sample was drawn from a sealed and intact container.

AJAI LAMBA, J

1. This petition seeks quashing of complaint (Annexure P-2) titled ‘Punjab State vs. M/s Bajwa Seed Store & Others’ filed under Section 29(i) of the Insecticides Act, 1968 (for short, `the Act’), order of summoning dated 4.9.2006 (Annexure P-3) and all other consequent proceedings arising out of the said complaint pending before the Chief Judicial Magistrate, Hoshiarpur.

2. Contention of the learned counsel for the petitioners is that petitioner Nos.1 and 2 are the dealers whereas petitioner Nos.3 and 4 are the distributors. The petitioners had a licence to sell the insecticides manufactured by M/s Hindustan Pulverising Mills which is a licensed manufacturer. Contention of the learned counsel in brief is that perusal of the documents of the respondent themselves indicates that the sample was drawn from a sealed packing. In this regard, reference has been made to the complaint itself wherein at Para 6, it has been mentioned that:-

“I purchased three plastic container (Packing) of Glyphosate 41% (Groundup) cost Rs.240/-on bill basis vide bill No.472 dated 13.7.2004 obtained on bill book of the firms Ms Bajwa Seed Store village Ghogra, Tehsil Dasuya (copy attached as Annexure P4).”

3. Learned counsel has further referred to Annexure P-5 i.e. Form filed under Rule 33 of the Insecticide Rules, 1971 (for short, the Rules’) wherein at column No.5, it has clearly been mentioned that sample was drawn from an original packing. Reference has also been made to Annexure P-6 which is a Form filed under Rule 24 of the Rules wherein it has been mentioned that the seal was intact and unbroken. In Para 6(ii), it has clearly been asserted that the sample was drawn from the original packing and the seal on the sample taken was intact.

4. Learned counsel for the petitioner has also pointed out that on having found the sample sub standard, licence of the petitioner was cancelled by the Chief Agricultural Officer, Hoshiarpur. An appeal was preferred before the Joint Director Agriculture, Punjab. The order of cancellation of licence was set aside vide Order 23.5.2005.

5. Having regard to the fact that learned counsel for the respondent has not been able to show that the material had been improperly stored or that the seal was found tampered or broken wherefrom the sample was drawn, it becomes evident that the distributors and vendors of the product cannot be held liable.

6. Learned counsel in this regard has relied on M/s Kisan Beej Bhandar, Abohar vs. Chief Agricultural Officers, Ferozepur and Another, 1990 (Supp) Supreme Court Cases 111 Wherein the following has been held in relevant portion of Para 4:-

“In that view of the matter, on the facts found that it was a full tin in a sealed condition, the liability arising out of misbranding was not of the appellant. Unless he had any other source of information about misbranding – and it has not been established – the appellant is entitled to the protection of sub-section (3). In the facts once the appellant’s contention that it was a sealed tin intact has been found, the burden that lay on him under the provisions of sub-section (3) had been satisfactorily discharged, even in the matter of considering the question of cancellation of licence and, therefore, his licence should not have been cancelled.”

7. To the same effect is the judgment of this Court viz. Ms Sidhu Brothers Store vs. State of Punjab, 2004(2) R.C.R. (Criminal) 366 wherein it has been held that dealer is entitled to get benefit of the protection of Section 30(3) of the Act (Insecticides Act, 1968) if the substance/ sample drawn was in its original condition.

8. Reference has also been made to M/s Sandeep Pesticides & Fertilizers vs. State of Punjab, 2005 Crl.L.J. 2843 wherein it has been held that the dealer has a right to seek protection under Section 30 (3) of the Act when the container from where the sample was taken was duly sealed and intact.

To similar effect, reference has been made to M/s Monga Pesticides and Ferti