Bombay High Court
M/S Shivshakti Bioplantic Ltd vs The State Of Maharashtra on 20 April, 2015
Author: T.V. Nalawade
Bench: T.V. Nalawade
1 Cr Application 833/2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Application No.833 of 2015
M/s. Shivshakti Bioplantic Ltd.
Hyderabad. .. Applicant.
Versus
The State of Maharashtra
And Another. .. Respondents.
ig --------
Shri. U.B. Bondar and Shri. V.C. Patil, Advocates, for
applicant.
Smt. R.K. Ladda, Additional Public Prosecutor, for
respondent No.1.
--------
CORAM: T.V. NALAWADE
Smt. I.K. JAIN, JJ.
DATE : 20th APRIL 2015
ORDER:
1) The proceeding is filed for quashing of the FIR No.5/2015 registered in Hadgaon Police Station for offences punishable under section 420, 34 of the Indian Penal Code and sections 3 and 7 of the Essential Commodities Act. The crime is registered on the basis of report given by the Agriculture Officer in respect of fertilizers found on the road when sale of the fertilizer was ::: Downloaded on - 07/05/2015 20:54:48 ::: 2 Cr Application 833/2015 going on. The incident took place on 31-1-2015. Both the sides are heard.
2) The incident took place on Hadgaon - Tamsa Road. One truck bearing No. MH 26 AD 669 was stationary on the road and the sale of bags containing fertilizer was going on. Farmers had gathered and coolies were there for carrying the bags. When the officers including the complainant reached there and started making enquiry, persons who had gathered including the coolies went away.
3) On the inquiry made by the Agriculture Officer persons who were with the truck showed bilti of Navbharat Fertilizer. No other record was found with regard to the many bags present in the truck. The bags of fertilizers having description as under were found in the truck :-
(i) Vijaya Gromin Manure bags 415 in number of 40 Kg each bearing Batch No. AU27A15-27 January 15. MRP Rs.797/- was shown on the container of organic mature (press mud);::: Downloaded on - 07/05/2015 20:54:48 ::: 3 Cr Application 833/2015
(ii) Vijetha fertilizer 18 bags having 5 Kg each bearing batch No. MCK/33COMM/FM/2013/ 4727 MRP Rs.545/- and description given as micro nutrients.
(iii) Vinzyme-G 18 bags each having 10 KG bearing batch No.T/PG20B14RF 26 February 2015. MRP Rs. 735/-.
(iv) Plastic bottles bearing name Khazaana 220 in
number of one litre each bearing
ig batch No.
M/OML-83/E/14. MRP Rs. 787/-. The MRP was scratched and it was written as "FREE" showing contents as organic liquid.
4) As there was no record with regard to the possession or the authorization, licence in respect of aforesaid fertilizer, it was seized under panchanama and it was handed over to police along with the truck in the presence of panch witnesses. Two bilties were also taken over and they were also handed over to police. This record is produced in the present proceeding.
5) On the bilti 600 bags of Vijaya Gromin was found to be written but the aforesaid number of bags were was found. 300 bottles of organic liquid were mentioned ::: Downloaded on - 07/05/2015 20:54:48 ::: 4 Cr Application 833/2015 on the bilti but the aforesaid number of bottles were found. 50 bags of Vijetha were mentioned on the bilti but less number of bags were found. The inquiry revealled that remaining fertilizer bags and bottles were already sold on the spot. As there was contravention of the Fertilizer (Control) Order, 1985 (hereinafter referred to as "the Control Order") report was given. The Control Order is issued under section 3 of the Essential Commodities Act and so the crime came to be registered accordingly.
It can be said that press mud was also being sold as organic manure and in respect of the items there was no licence for manufacture.
6) It is the case of the applicant - M/s Shivshakti Bioplantic Ltd. Hyderabad that for possession and sale of aforesaid item Nos. 1,3 and 4 in Maharashtra there is no necessity of licence under the Control Order. It is contended by the applicant that the applicant was holding a valid licence for manufacture of these products and there was permission for sale of these articles in Maharashtra particularly for the regions like Aurangabad and Wardha. It is specifically contended by the applicant ::: Downloaded on - 07/05/2015 20:54:48 ::: 5 Cr Application 833/2015 that the goods seized (item Nos.1,3 and 4) were of category of organic fertilizer and they were being transported from Hyderabad to Aurangabad at the relevant time.
7) In the reply affidavit the complainant has contended that it was necessary to produce original bill in Form "M" as per Clause 8 and Clause 5 of the Control Order and the person having possession ought to have produced Form "O". It is contended that delivery challan dated 30-1-2015 produced before the officer showed that the goods were collected from Hyderabad Unit but the inquiry revealled that the goods were collected from Navbharat Fertilizer Company Ltd. Aurangabad and it was being taken towards Hadgaon. It is contended that the firms at Hadgaon, Wardha had no licence for sale. It is contended that the quantity of goods was also not in conformity with the quantity shown in the bilti. It is contended that the inquiry revealled that the remaining quantity was already sold to the farmers on this spot and at the time of sale no bills were prepared. It is contended that there was violation of Clause 7 of the Control Order.
::: Downloaded on - 07/05/2015 20:54:48 ::: 6 Cr Application 833/2015It is contended that even for manufacture of item Nos.1,3 and 4 permission for the manufacture is required as per Government Resolution dated 16-8-2010 No.CPS-2010/CR 222/17-A. It is contended that in view of the provisions of the Control Order samples were collected from item No.2 and a sample was sent to laboratory for testing.
8) Copy of the Government Resolution dated 16-8- 2010 of the State Government, Agriculture Department, is produced and it shows that if some nutrients are not mentioned in the Control Order and the Rules made by the State Government in 1968 and 1971, those nutrients will also be regulated and the procedure for obtaining permission for manufacture, sale etc. is given. The procedure given in the Government Resolution is similar to the procedure given in the Control Order.
9) A copy of Analysis report of item No.2 dated 16- 2-2015 is produced. It is in respect of Grade I category nutrient and it can be said that the sample was in conformity with the standards prescribed.
::: Downloaded on - 07/05/2015 20:54:48 ::: 7 Cr Application 833/201510) The papers of investigation show that some record of the orders of customers received is recovered and the investigation revealled that this record is false.
There is record of the orders prepared by the Navbharat concern of Laxminagar Latur. There is record of 5 such orders in the names of customers. There is no licence in favour of Navbharat Fertilizers Laxminagar Latur. The investigation papers show that on the seized bags and packets there were addresses of Gujarat State and Uttarakhand State. Thus the original bilti having description of the bags and packets actually seized was not available and the aforesaid record of bilti which can be called as bogus was there.
11) On the other hand, the applicant has produced some record in this case like copy of Form "F". It is dated 19-1-2010 and it is in respect of manufacture of bio fertilizer. Amendments to these permission are produced and they show that the grades of nutrients recommended for different States can be manufactured by the applicant.
It can be said that it has the permission to manufacture Grade I nutrients. Thus, there is record of permission only ::: Downloaded on - 07/05/2015 20:54:48 ::: 8 Cr Application 833/2015 in respect of one item viz. item No.2 from the panchanama. No record in respect of remaining items with regard to the manufacture or sale is produced.
12) Copy of certificate issued to the applicant is produced and it shows that the applicant is allowed to do wholesale dealership business in Andhra Pradesh. Further, it is only in respect of bio fertilizer mentioned in "M"
Certificate. There is record of permission to sell such bio fertilizer in Maharashtra and it is dated 4-10-2013. Thus, there is record of permission of manufacture in favour of the applicant in respect of bio fertilizer, micro nutrients of Grade I and Grade II.
13) Some record in favour of M/s Navbharat Limited Zalta, Taluka Aurangabad is produced. Some record in respect of Satana, Taluka Aurangabad is also produced. The record shows that Zalta Navbharat Ltd has two licneces like Licence LAFD15010182 and LAFD15010181. For Satana, Tahsil Aurangabad there is licence like LAFD-26040156 and LAFD2604157. These licences are for business of retail sale and the source of fertilizers is given as Shivshakti Bioplantic Ltd.
::: Downloaded on - 07/05/2015 20:54:48 ::: 9 Cr Application 833/201514) The material seized in the case is described as under :
(i) organic manure (press mud)
(ii) organic liquid
(iii) PGPR
(iv) micro nutrients
Even if it is ignored that these goods were meant for Gujarat State and Uttarakhand State, it was necessary for the applicant and also Navbharat Ltd. to show that there was the licence to manufacture items No.1,3 and 4 shown in the panchanama. It can be said that there was licence to manufacture bio fertilizer, micro nutrients but there was no licence of manufacture and sale of organic liquid or manure etc. Learned counsel for the applicant submitted that there is no necessity of taking such permission. This submission is not at all acceptable in view of the aforesaid Government Resolution of the State Government and the provisions of the Control Order.
Relevant provisions are as under.
14) In the Control Order, definition of :"bio-
fertilizer" is given in clause 2(aa) which is as under :
::: Downloaded on - 07/05/2015 20:54:48 ::: 10 Cr Application 833/2015"bio-fertilizer" means the product containing carrier based (solid or liquid) living micro-organisms which are agriculturally useful in terms of nitrogen fixation, phosphorus solublisation or nutrient moblisation, to increase the productivity of the soil and/or crop.
Definition of "organic fertilizer" is given in clause 2 (oo) and it runs as under :-
"organic fertilizer" means substances made up of one or more unprocessed material(s) of a biological nature (plant/animal) and may include unprocessed mineral materials that have been altered through microbiological decomposition process."
Definition of "dealer" given in Clause 2(f) shows that the dealer includes manufacturer, wholesale dealer and even pool handling agent. It is the case of the applicant that the applicant was taking the aforesaid goods to Navbharat Ltd but the relevant material collected is otherwise and the sale was taking place on the spot where the material was seized.
15) In Chapter II of the Control Order provisions are made to impose restrictions on the dealers with regard to storage, sale of the fertilizers. They show that, ::: Downloaded on - 07/05/2015 20:54:48 ::: 11 Cr Application 833/2015 at the place of business the dealer is expected to display the list of stock and also the price list (Clause 4). The dealer is also expected to issue cash/credit memo to the purchasers in form "M" (Clause 5). Apparently there was contravention of these two provisions.
16) In Chapter IV of the Control Order there are provisions with regard to registration of dealers and also for authorisation. Clause 7 shows that no person shall sell etc. fertilizer at any place as wholesale dealer or retail dealer except approved under and in accordance with provision of Clause 8. Clause 8 provides that every person intending to sell fertilizer must apply for registration and he must give application in Form "A" and he should also produce certificate of source in Form "O". Chapter V gives some provisions which imposes restrictions on manufacture of mixtures of fertilizers, organic fertilizer and bio fertilizers. Clause 12 is applicable in the present case which mandates that no organic fertilizer or bio-
fertilizer can be manufactured or sold except under and in accordance with the terms and conditions of the certificate granted under Clause 15 or Clause 16 of the ::: Downloaded on - 07/05/2015 20:54:48 ::: 12 Cr Application 833/2015 Control Order. It is made clear that mixtures should be as per standards. Standards are set out in part A of Schedule IV. Clause 13(2) provides that unless such mixtures of organic fertilizer conform to the standards set out by the Government it cannot be sold. Clause 14 (3) shows that every person desiring to obtain certificate for manufacturing and preparation of organic fertilizer or bio fertilizer shall make application in Form "D" with fees prescribed in Clause 36. Only municipality, local body of like that nature are exempted from getting such certificate.
17) The provisions of Chapter VI of the Control Order give further restrictions on manufacture and sale and they are with regard to the standards. Clause 19 provides that there cannot be manufacture or sale of fertilizer unless it is having prescribed standard. The clause further shows that there cannot be sale or stock of fertilizer unless on the bag there is marking in the manner laid down in the Control Order. The Clause further shows that there is prohibition of mentioning on the packet that the fertilizer is a substitute for other fertilizer. The clause ::: Downloaded on - 07/05/2015 20:54:48 ::: 13 Cr Application 833/2015 further provides that there is prohibition of sale of the adulterated fertilizer which decreases the nutrient value and which changes the standards. There is prohibition of sale of fertilizer for purpose other than agricultural purpose and so they cannot be sold in fictitious names.
Clause 21 provides that there are restrictions of packing and marking of organic fertilizer and if the bag contains fertilizer of weight of more than 5 kilograms, description should be given on it and the packet should be packed and sealed unless the bags are stitched in such a manner that opening in the past can be easily ascertained. Clause 23 provides that when the fertilizer does not conform to the standards on the packet it needs to be specifically mentioned that it is of "non-standard". There should be also marking as "X" in red colour. Even after taking care of marking and giving description on the bag in such a way, authorization needs to be obtained for sale of such non-standard fertilizer as provided under clause 23(1) (b).
18) Chapter VII deals with enforcement authorities.
The powers mentioned in Clause 28 show that the officers have power to seize and attach any fertilizer in respect of ::: Downloaded on - 07/05/2015 20:54:48 ::: 14 Cr Application 833/2015 which the officer has reason to believe that there is contravention of the Control Order or there has been attempt of contravention of the Control Order. He has power to take into possession such fertilizer, give stop sale notice also. The provision of the Code of Criminal Procedure, 1973 are made applicable to the procedure used for seizure.
19) In Schedule IV standards of organic fertilizers are given. There are standards for organic fertilizer and city compost. In Schedule I part A standards for micro nutrients are given.
20) The aforesaid scheme given in the Control Order shows that it was necessary to obtain permission, certificate for manufacture of organic fertilizer and then obtain permission for its sale in Maharashtra. There is such record only in respect of micro-nutrients but the record with regard to other goods seized is not there and the papers produced are not in conformity with the goods seized.
::: Downloaded on - 07/05/2015 20:54:48 ::: 15 Cr Application 833/201521) The applicant has come with specific case that the applicant was selling press mud. In that case also, it needs to be presumed that the applicant knew that it was not in conformity with the organic fertilizer as mentioned above. It was necessary for the applicant to follow the procedure which is given for non standard fertilizers. If anybody is found selling a substance which is admittedly a non standard fertilizer and he is selling it as a fertilizer, such conduct amounts to cheating in addition to contravention of the aforesaid provisions of the Control Order. Thus, it cannot be said that there is no substance in the allegations made and there is no contravention. It is not possible to quash the First Information Report.
22) In the result, the application stands dismissed.
Sd/- Sd/-
(Smt. I.K. JAIN, J.) (T.V. NALAWADE, J. )
rsl
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