A retailer or marketing firm is not liable for misbranding if the insecticide was sold in sealed packaging and there is no evidence of their knowledge regarding the misbranding.

Judgment :

Yashvir Singh Rathor, J.

1. By way of this petition filed under Section 482 of the Code of Criminal Procedure, 173, prayer has been made to quash complaint case No.33 dated 26.07.2019 titled as “State vs M/s Quality Mill Store and others” under Sections 3 (k)(i), 17, 18, 29, 33 of the Insecticides Act, 1968 (hereinafter referred to as 'Act') read with Rule 27 (5) of Insecticides Rules, 1971 pending in the Court of learned Sub Judicial Magistrate, Khanna. District Ludhiana (Annexure P-1), apart from the summoning order dated 27.06.2019 (Annexure P-2) and all the consequential proceedings arising therefrom qua the petitioners.

2. Brief facts of the prosecution case are that on 22.05.2017, Insecticide Inspector, Khanna, District Ludhiana, visited the shop/premises of one dealer-firm namely M/s Quality Mill Store, Samrala Road, Khanna, District Ludhiana and after making necessary statutory compliances, he drew sample of Insecticide namely, Fipronil 0.3% GR manufactured by M/s Vikas Organic Ind. Corporation, Faridkot; and marketed by M/s Suminova Agri Science, Kotkapura. Out of three samples collected by the Insecticide Inspector, one sample was sent to the State Insecticide Testing Laboratory, Bhatinda on 26.05.2017, i.e. after 4 days for analysis. The report of the Public Analyst, Bhatinda was received on 19.06.2017 in the office of Chief Agriculture Officer, Ludhiana according to which sample was declared `misbranded’. Against the show cause notice sent to the accused i.e. the dealer, supplier and the manufacturing company, replies were filed by them. Request was made by the dealer to send the second part of the sample to the Central Insecticide Laboratory, Faridabad for reanalysis so as to controvert the report of Public Analyst. The sample was sent to the Central Insecticide Laboratory, Faridabad on 12.02.2018, where the analysis was done on 05.03.2018 vide report Annexure R-21, declaring the sample as `misbranded’. After obtaining necessary sanction from the competent authority, the prosecution was launched in the Court of learned Sub Divisional Judicial Magistrate, Khanna, District Ludhiana on 26.07.2019.

3. On the same day i.e. 26.07.2019, learned Sub Divisional Judicial Magistrate, Khanna, District Ludhiana ordered issuance of summons to all the accused vide order Annexure P-2.

4. Learned counsel for petitioners contended that petitioners No.2 to 4 are the office bearers of the firm i.e. petitioner No.1, which is a distributor/marketing firm only. The petitioners have no role whatsoever in the manufacturing or packaging or labeling of the products which have been manufactured by the registered and authorised manufacturing company namely M/s Vikas Organic Ind. Corporation, Faridkot. The petitioner-firm supplied material in the “Original Sealed Packing” as was received from the manufacturing company and the marketing company/ petitioners thus cannot be held liable for the misbranding of the products in any manner whatsoever. The sample was drawn from the original sealed packing and no offence is made out against the petitioners. Learned counsel next contended that the sample was drawn on 22.05.2017 but the same has been sent to the Office of Public Analyst on 26.05.2017, after a delay of four days which is in gross violation of the mandatory provisions of Section 22 (6) of the Act. Learned counsel lastly contended that the order passed by the trial Court is non-speaking and is a result of non-application of mind and no reasons have been recorded by the trial Magistrate while summoning the petitioners to face the trial as an accused and the impugned summoning order is also thus liable to be set aside. In support of his contentions, learned counsel has cited Law Finder Doc Id