2022 PLP 200 (YLRN)

MUHAMMAD SALEEM JESSAR, J

Through this application, Applicant Abu Bakar seek his admission on pre-arrest bail in Crime No.44 of 2020, registered at Police Station Perumal under section 21(2)(b) of Agricultural Pesticides Ordinance, 1971. The case after investigation has been challaned by the police, which is pending for trial before the Court of Consumer Protection/ Civil Judge, Sanghar. The applicant preferred his bail plea before first forum wherefrom it was assigned to Additional Sessions Judge-1/(MCTC). Sanghar vide Criminal Bail Application No.973/2020 [Re-Abu Bakar v. The State], however, request so made on his behalf was declined by means of order dated 13.10.2020; hence, he has maintained instant bail application.

2. The crux of prosecution case as unfolded by complainant Muhammad Naeem, the Deputy Director, Agriculture Extension, are to the effect that on 16.06.2020, he along with his subordinates namely Ahsan Ali Channa, Clerk and Ghulam Qadir Bhatti, Beldar, left their office in a private vehicle for checking agricultural pesticides when at 1220 hours they reached at Kandiari town over the shop namely Shoukat Pesticide where its dealer Abu Bakar Mangrio (applicant) was present. During checking of pesticides, they took a sample from a pesticide namely Emamectin Benzoate 1.9 % EC, which was divided in three shares, one of the share was given to its dealer Abu Bakar/ applicant while two shares of sample were taken away by the complainant to their office where on 19.06.2020 said sample was got deposited through their clerk in Pesticide Fertilizer Testing Laboratory, Barrage Colony, Hyderabad. On 14.07.2020, the report was delivered to them, which showed that the pesticide is of below standard, therefore, Additional Director Agriculture, Sanghar directed them to take legal action against the dealer namely Abu Bakar Mangrio through his letter bearing No.1492 dated 05.10,2020 but since he was busy in emergency duty, therefore, he could not submit the letter before police; however, on 07.10.2020, the FIR in hand was got registered to the effect that the applicant while selling below standard pesticide has committed offence in terms of section 21(2)(b) of Agricultural Pesticides Ordinance, 1971 (the Ordinance); hence, instant case against him was got registered.

3. Learned counsel for applicant submits that FIR is delayed for about five months and no plausible explanation has been furnished by prosecution for such an inordinate delay. He next submits that sample taken by complainant from his shop was not sealed on spot and later, it was deposited in the Laboratory, therefore, veracity of such sample is doubtful. He next submits that applicant is a registered dealer/seller and whatever he was selling were not manufactured by him; therefore, he cannot be held responsible for such an offence. He further submits that by not arraying the manufacturer as an accused in this case, the violation of section 21(2)(b) of the Ordinance has been made; therefore, such illegality shows mala fide on their part and entitles the applicant with concession of bail. In support of his contention he has placed reliance upon the cases of 'Sohail Asghar v. State and another 2018 YLR 214, Ishrat Naeem v. State and others' [PLJ 2017 Cr.C. (Lahore) 524] and 'Muhammad Khalid and 2 others v. The State' [2019 PCr.LJ 348]. He, therefore, submits that interim bail granted to the applicant earlier may be confirmed.

4. The process issued against complainant returned duly served, taken on record. The complainant present in person submits that he being government official will be represented by learned Additional Prosecutor General, Sindh. Mr. Nazar Muhammad Memon, learned Additional P.G. Sindh submits that applicant is first offender besides there are legal flaws in the investigation and offence with which applicant stands charged carries maximum punishment upto two years as well fine of Rs.5,00,000.00 [five hundred thousand only], hence, he does not oppose the application.

5. Heard arguments and perused record.

6. Admittedly the incident as shown had occurred on 16.06.2020 whereas, the FIR was got registered on 07.10.2020 and no plausible explanation has been furnished by prosecution for such an inordinate delay. The delay in criminal case has always been deprecated by the superior Courts and has been held fatal for the prosecution. Undisputedly the applicant is a registered dealer and the pesticides being sold by him were not manufactured by him, therefore, if any below standard pesticide, according to prosecution, was found, he cannot be held responsible alone. On Court query, complainant present submits that bottle of particular pesticide from which samples were taken was sealed on spot, however, no such memo was handed down by him on spot or later in his office. He further admits that applicant is a distributor and is not manufacturer or formulator besides the manufacturing company was not arrayed as an accused in this case, therefore, offence under section 21(2)(b) of the Ordinance is yet to be established by the prosecution after recording evidence of the parties. The punishment provided by the law, in case of he being first offender, is not less than one year or more than three years with fine of five hundred thousand rupees, therefore, does not exceed the limits of prohibitory clause of section 497, Cr.P.C. In case of 'Sohail Asghar' [supra], learned bench of Lahore Court has held as under:- It has not been disputed by the prosecution itself that the accused/petitioner is holding a valid license to keep and sell the pesticides. It is also an admitted fact that petitioner has a lawful license of dealership to run the business of pesticides and petitioner is dealing with sale of pesticide, which is a registered pesticides' company, while there is no allegation against accused/petitioner that he has tampered with the seals of packs and under the law, petitioner is required to sell only such stock of pesticides, which was duly registered in the manner provided in the statute or the rules framed therein. Petitioner had offered to sell away pesticides, which were manufactured by a renowned manufacturing pesticides' company i.e. Agri Leaf International, Khan Pur and if it contains any deficient component, it was none of his fault as the Investigating Officer has not got it verified from the above said manufacturing unit whether or not the pesticides recovered from the shop of petitioner had been prepared by the said manufacturers and it is not the case of prosecution that the seals of pesticides collected for same purpose had been broken or tampered, therefore, prima facie petitioner, being registered dealer can take at the most or be treated as a witness and main liability would lie on the shoulders of manufacturer of the substandard pesticide. But so far, no manufacturer has been arrayed as accused in this case. Even otherwise, petitioner has joined investigation and nothing is to be recovered from his possession. Petitioner is not charged with the offence covered by prohibitory clause and no useful purpose would be served in sending them behind the bars.

4. In view of above, attempt on part of the prosecution to arrest the petitioner alone by letting off the manufacturer of substandard pesticides, is a clear case of mala fide on its part and being so, the accused/petitioner is entitled to the concession of pre-arrest bail."

7. Nothing has been brought on record to believe that the pesticide available at the shop of applicant was counterfeit or spurious or it was alleged that seals of pesticides duly taken for sample purpose were tampered with or broken by applicant. The applicant being bona fide purchaser of alleged sub-standard pesticide from the company, his role was limited to the extent of buying and subsequent selling of said products; therefore, he cannot be held responsible for alleged offence except he being its seller.

8. The upshot of above discussion is that the applicant has made out a good prima facie case for his admission on pre-arrest bail within the meaning of subsection (2) of section 497, Cr.P.C. and his case requires further inquiry. Consequently, the bail application in hand is allowed. Interim pre-arrest bail granted to the applicant on 15.10.2020 is hereby confirmed on same terms and conditions. However, the Applicant is directed to continue his appearance before trial Court till final decision of case and trial Court shall conclude it within a shortest possible time under intimation to this Court through Additional Registrar.

9. It need not to reiterate that the observation(s) made hereinabove is/are tentative in nature and shall not prejudice the case of either party during trial. SA/A-191/Sindh Bail confirmed.