Karnataka High Court
Sameer Goel vs The State Of Karnataka on 13 September, 2023
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NC: 2023:KHC-K:7452
CRL.P No. 201364 of 2023
C/W CRL.P No. 201369 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL PETITION NO.201364 OF 2023
CONNECTED WITH
CRIMINAL PETITION NO.201369 OF 2023
IN CRL.P. NO.201364/2023:
BETWEEN:
SAMEER GOEL
S/O. SH HAR SWARUP GOEL
AGED ABOUT 58 YEARS
OCCUPATION: MANAGING DIRECTOR
COROMANDEL INTERNATIONAL LIMITED
COROMANDEL HOUSE, 1-2-10
SARDAR PATEL ROAD
SECUNDERABAD-500 003
TELAGANA
RESIDENT OF 1-2-10, SARDAR PATEL ROAD
SECUNDERABAD-500 003.
...PETITIONER
Digitally signed
by SHILPA R (BY SRI AVINASH A. UPLOANKAR, ADVOCATE)
TENIHALLI
Location: HIGH AND:
COURT OF
KARNATAKA THE STATE OF KARNATAKA
DEPARTMENT OF AGRICULTURE
ASSISTANT AGRICULTURE OFFICER CUM
FERTILIZER INSPECTOR
RIATHA SAMPARKA KENDRA, KAKKERA
REPRESENTED BY ADDITIONAL
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-560 001.
...RESPONDENT
(BY SMT. ANITA M. REDDY, H.C.G.P.)
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NC: 2023:KHC-K:7452
CRL.P No. 201364 of 2023
C/W CRL.P No. 201369 of 2023
IN CRL.P. NO.201369/2023:
BETWEEN:
SHYAMSUNDAR SHETTI
S/O. RAMAYYA SHETTY
AGED ABOUT 47 YEARS
OCCUPATION: PROPRIETOR OF
SRI KANIKA PARAMESHWARI AGENCIES
MAIN ROAD KAKKERA
RESIDENT OF H.NO.E/6-9
SHETTRA AREA, KAKKERA, SHORAPUR
YADGIRI-585 2015.
...PETITIONER
(BY SRI AVINASH A. UPLOANKAR AND
SRI RAVI K. ANOOR, ADVOCATES)
AND:
THE STATE OF KARNATAKA
DEPARTMENT OF AGRICULTURE
ASSISTANT AGRICULTURE OFFICER CUM
FERTILIZER INSPECTOR
RIATHA SAMPARKA KENDRA, KAKKERA
REPRESENTED BY ADDITIONAL
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-560 001.
...RESPONDENT
(BY SMT. ANITA M. REDDY, H.C.G.P.)
***
THESE CRIMINAL PETITIONS ARE FILED UNDER SECTION 482
OF THE CR.P.C. PRAYING TO QUASH THE ORDER OF TAKING
COGNIZANCE DATED 01.02.2023 IN C.C. NO.1276/2023 FOR THE
OFFENCES PUNISHABLE UNDER SECTION 7 OF THE ESSENTIAL
COMMODITIES ACT, 1955, AND VIOLATION OF ORDER 19(A)/(B) OF
THE FERTILIZER CONTROL ORDER, 1985, PENDING BEFORE THE
ADDITIONAL CIVIL JUDGE AND J.M.F.C. COURT, SHORAPUR,
AGAINST THE PETITIONERS.
THESE CRIMINAL PETITIONS ARE COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-K:7452
CRL.P No. 201364 of 2023
C/W CRL.P No. 201369 of 2023
ORDER
Criminal Petition No.201364 of 2023 is filed by accused No.2 and Criminal Petition No.201369 of 2023 is filed by accused No.3 praying to quash the order of taking cognizance dated 1-2-2023 in Criminal Case No.1276 of 2023 for the offences punishable under Section 7 of the Essential Commodities Act, 1955 (for short, 'E.C. Act'), and violation of order 19(A)/(B) of the Fertilizer Control Order, 1985, pending on the file of the Additional Civil Judge and Judicial Magistrate First Class, Shorapur, Yadgir.
2. For the sake of convenience, the parties are referred to as per ranking before the trial Court. The petitioners are accused No.2 and 3 and respondent is complainant - State.
3. The factual matrix of the case are that, on 23-12-2017, the complainant visited the shop of accused No.3, inspected the same and took three copies sample (400 grams each) of DAP (18:46:0) fertilizer stock. Among three copies, one copy of the sample was handed -4- NC: 2023:KHC-K:7452 CRL.P No. 201364 of 2023 C/W CRL.P No. 201369 of 2023 over to the owner of the fertilizer shop, second copy of the sample was sent to his higher authority for keeping in safe custody and third copy of the sample was sent to laboratory for testing. On 25-1-2018, he received laboratory report from Fertilizer Control Laboratory, Belgaum, and as per the report, the fertilizer seized in the shop of accused No.3 was not according to the specification. Based on the report, on 21-2-2018, he again visited the shop of accused No.3 and issued show- cause notice to accused Nos.1 to 3 to produce documents like stock book register, dealer license, sales register. On 25-3-2023, accused No.3 gave reply to the show-cause notice along with copy of invoice and accused No.1 replied on 6-3-2018 and both requested to send the sample to referee sample analysis. Accordingly, on 9-4-2018, on the request letters, the guard sample was sent to the Commissioner of Agriculture and Appellate Authority for referee sample analysis. On 14-8-2018, he received referee sample re-analysis report, which confirms that sample seized in the shop of accused No.3 is not according -5- NC: 2023:KHC-K:7452 CRL.P No. 201364 of 2023 C/W CRL.P No. 201369 of 2023 to the specification and failed in total Neutral Ammonium citrate soluble Phosphates (as P2O5) percent by weight 2.11. Accordingly, on 30-8-2018, the complainant proceeded to prosecute the petitioners under the aforesaid offences.
4. As per the complainant, accused No.3 committed the offence by selling sub-standard fertilizer and accused Nos.1 and 2 committed the offence by manufacturing substandard fertilizers which is in violation of the aforesaid Rules.
5. The trial Court received the complaint and took cognizance of the offence against accused Nos.1 to 3. Taking exceptions to the same, accused No.2, Managing Director of the Company, and accused No.3 Dealer of the Company, have filed these petitions.
6. Learned counsel for the petitioners/accused Nos.2 and 3 has contended that the petitioners are innocent of the alleged offences and they have not committed any offences. Accused No.2 is the Managing Director of the -6- NC: 2023:KHC-K:7452 CRL.P No. 201364 of 2023 C/W CRL.P No. 201369 of 2023 Company and accused No.3 is the Distributor of the Company and they are no way connected to the production of fertilizers, nor do they have any domain or control over the quality of the fertilizers. The samples were collected from sealed bags and hence, absolutely there are no specific allegations against the petitioners regarding their culpability of any adulteration or substandard fertilizers contained in stitched bags. The alleged offences comes under the violation of Section 3(2)(i) of the E.C. Act and the prescribed punishment, which may extend to one year and liable for fine. The alleged offence is pertaining to the date 23-12-2017 and the learned Magistrate took cognizance on 1-2-2023. Hence, same is barred under Section 468 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). It is further contended that, accused No.2 is a permanent resident of Chennai and the alleged offence took place in Shorapur, Yadgir District, Karnataka State. It is also contended that the learned Magistrate has taken cognizance of the alleged offences against accused No.2 without compliance of requirements of Section 202 of the -7- NC: 2023:KHC-K:7452 CRL.P No. 201364 of 2023 C/W CRL.P No. 201369 of 2023 Cr.P.C. From the cause-title of the petition papers, it is very clear that accused No.2 is a resident of Chennai, Tamil Nadu, and he is carrying his business beyond the jurisdiction of the learned Magistrate. Therefore, non- compliance of requirements of Section 202 of the Cr.P.C. would vitiate the entire proceedings. Hence, he prayed to allow the petitions.
7. Per contra, the learned High Court Government Pleader while opposing the petitions has contended that there are prima-facie material to show that the petitioners have committed the alleged offences. She submits that when there is a Government notification, production of certain fertilizers is not open for the petitioners to manufacture the fertilizers. The issue now raised before this Court is a matter of trial and if there is delay in lodging the complaint, the same may be condoned under Section 473 of Cr.P.C. by assigning proper reasons before the trial Court. Hence, she prayed to reject the petitions. -8-
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8. I have carefully considered the rival submissions of both sides and perused the material available on record.
9. On perusal of the record, it reveals that on 23-12-2017, the complainant visited the shop of accused No.3, took sample of fertilizers and sent the same to the Laboratory and referee sample re-analysis and came to know that the seized sample was not upto the specifications and it was substandard. In the instant case, the complainant made the Company as accused No.1, the Managing Director of the Company as accused No.2 and the Distributor or Agency i.e., Proprietor of Kanika Parameshwari Agency as accused No.3.
10. On perusal of the entire complaint, there is no specific allegation laid against the petitioners as to how they are responsible for the adulteration of the fertilizers or how they are responsible for the substandard fertilizers contained in the stitched bags. In the case of Sanjay Gowda v. State of Karnataka, in Criminal Petition No.7408 of 2015 dated 4-8-2016, a Co-ordinate bench -9- NC: 2023:KHC-K:7452 CRL.P No. 201364 of 2023 C/W CRL.P No. 201369 of 2023 of this Court held that, 'as per the Government order issued by the Department of Agriculture, it requires the appointment of an officer for compliance of Fertilizer (Control) Order in every company manufacturing fertilizers and when such an officer is named, it is only against such officer that any violation against law under such provisions could be carried forward and not against any other officer of the company such as its Managing Director.' In the present case, accused No.3 is stated to be the Proprietor of Kanika Parameshwari Agency and there is no specific allegation made against him as to how he is responsible for the quality of the fertilizers and the substandard fertilizers contained in the bags which were packed and sealed by the manufacturer.
11. In view of the specific provisions in the E.C. Act dealing with the offences by Companies, which fixes the responsibility and the responsible person of the Company for conduct of its business, by making bald and vague allegations, accused No.2, Managing Director, cannot be
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NC: 2023:KHC-K:7452 CRL.P No. 201364 of 2023 C/W CRL.P No. 201369 of 2023 prosecuted on vague allegations that, he being the Managing Director of accused No.1-Company, is overall responsible for the conduct of business of the Company and of quality control, etc. Learned counsel for the petitioners submits that the Company has passed resolution, fixing responsibility on Sri Rajshekar Badiger, Compliance Officer of the Company.
12. Learned counsel has undertaken to furnish a copy of certain resolution and detail address of the said Compliance Officer to the learned High Court Government Pleader and before the trial Court. If responsibility is fixed on the Compliance Officer, the question of fixing responsibility on the Managing Director is vague and it would not arise in view of Section 33 of the E.C. Act, which makes it clear that only responsible person of the Company, as well as the Company alone shall be deemed to be guilty of the offence and shall be liable to be prosecuted and shall be liable to be proceeded against such person.
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13. For the aforesaid reasons, accused No.2, Managing Director of the Company, and accused No.3, Proprietor of the Agency, are not at all responsible.
14. Further, perusal of the cause-title of the complaint lodged by the complainant before the learned Magistrate, it is seen that, accused No.2, Managing Director, is a resident of Chennai, Tamil Nadu. Since accused No.2 was residing beyond the jurisdiction of the learned Magistrate, he ought to have held a preliminary enquiry so as to satisfy himself before issuing summons to the accused person. The Hon'ble Supreme Court in the case of UDAI SHANKAR AWASTHI v. STATE OF U.P. AND ANOTHER reported in (2013) 2 SCC 435 at paragraph No.40 has observed as under:
"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial
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NC: 2023:KHC-K:7452 CRL.P No. 201364 of 2023 C/W CRL.P No. 201369 of 2023 jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."
15. The requirement of holding an enquiry under Section 202 of Cr.P.C. is mandatory in nature. In the case on hand, such an enquiry ought to have been held because accused No.2 is resident beyond the jurisdiction of the learned Magistrate and the learned Magistrate ought to have satisfied himself taking into consideration the material on record as to whether, prima-facie case is made out by the complainant for taking cognizance of the alleged offences against accused No.2, but such exercise has not been made by the learned Magistrate and this irregularity virtually vitiates further proceedings before the learned Magistrate.
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16. In the light of the above decisions and in the absence of any material to show that Managing Director and Agency are responsible for the quality of fertilizers seized, the proceedings now initiated against the petitioners/ accused Nos.2 and 3 is nothing but abuse of process of law. For the foregoing reasons, the petitions deserve to be allowed. Accordingly, I pass the following ORDER i. Criminal petitions are allowed.
ii. The proceedings pending in Criminal Case No.1276 of 2023 on the file of the Additional Civil Judge and Judicial Magistrate First Class, Shorapur, Yadgir, qua the petitioners/accused Nos.2 and 3 are hereby quashed.
Further, it is made clear that, the observations and findings recorded in this order are made only for the purpose of disposal of these petitions and it is open for the trial Court to record its own findings, based on the
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Sd/-
JUDGE KVK List No.: 1 Sl No.: 19