The right of the accused to retest seeds and the vicarious liability of persons in charge of a company under the Seeds Act.

ORDER :

This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) by the petitioner – accused No.3 to quash the proceedings against him in C.C.No.381 of 2015 on the file of I Additional Judicial First Class Magistrate, Khammam. The offences alleged against the petitioner are under Sections 6(a) and 7(b) read with Section 19(a)(i) of the Seeds Act, 1966 (for short ‘the Act’).

2. Heard learned senior counsel for the petitioner and learned Additional Public Prosecutor for the respondent No.1 – State.

3. The case of the 2nd respondent is that on 29.07.2005, an inspection was conducted in the premises of M/s. Sri Laxmi Fertilisers and General Merchants at Yellandu and found Maize seeds ‘Kaveri’ 218. The samples were drawn by the officer and copy of Form-VIII was served to accused No.1 and acknowledgment was taken. The procedure was followed while drawing the samples and same were sent to the analyst for analysis and report. On 23.08.2005 the analyst report was received from the Assistant Director of Agriculture (STL), Rajendranagar, Hyderabad. On 22.10.2005 a show cause notice was issued by the complainant intimating that the seeds containing 71% germination which is substandard, however the percentage should be 90% and above. To the said show cause notice, an explanation was given on 03.11.2005 by the Marketing Coordinator to the Joint Director of Agriculture, Khammam by enclosing a quality control report along with the explanation by stating that they have undertaken testing of the seeds before selling and the tests of their Quality Control Lab revealed that the germination percentage is more than 90%.

4. Learned counsel appearing for the petitioner urged on the ground that the petitioner was not given an opportunity of sending the samples for retesting to the Central Laboratory, since the complaint was filed after the expiry date. The expiry date was in the month of February, 2006. Though the complaint was filed on 15.02.2006, the cognizance was taken on 05.04.2006, thereafter summons were issued. The other ground urged by the learned counsel is that the petitioner cannot be vicariously liable, unless the company is arrayed as an accused. Learned counsel relied on the judgment of the Hon’ble Supreme Court in Aneeta Hada v. Godfather Travels and Tours Private Limited : (2012) 5 Supreme Court Cases 661. To substantiate his argument that the petitioner was denied an opportunity of retesting, he also relied on the judgment of this Court in M/s.Matha Venkateswara Rao and others v. State : 2002 SCC OnLine AP 1172.

5. In accordance with Section 16(2) of the Act, after institution of a prosecution under the Act, the accused on payment of prescribed fee before the concerned Court for sending the samples to the Central Seed Laboratory.

6. In the present case, admittedly the summons were issued after cognizance was taken on 05.04.2006, whereas the expiry date of the seeds was in the month of February, 2006. It is apparent that the right to send the samples to the Central Laboratory was denied on account of delay in filing the complaint. Admittedly, Kaveri Seed Company Pvt.Ltd is not made as an accused in the present case.

7. Under Section 21 of the Act, when an offence is committed by a company, every person who at the time of offence was committed was in charge of, would be vicariously liable. In Aneeta Hada (cited supra) case, the Hon’ble Supreme Court held that unless the company is made as an accused, the persons who are responsible for day to day affairs cannot be made accused. The liability on the persons running the company is vicarious and unless the company is made as an accused, the liability cannot be fastened on to the persons who are responsible for running the company. On both grounds, the accused being denied an opportunity of doing retesting of seeds and also for not arraying the company as an accused, the petition succeeds.

8. In view of the above discussion, the continuation