Madhya Pradesh High Court
Harishankar Shivhare vs The State Of Madhya Pradesh on 16 May, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION NO. 274 of 2024
HARISHANKAR SHIVHARE
Versus
THE STATE OF M.P. & ORS.
Appearance:
Shri Sanjay Kumar Bahirani- learned counsel for the
petitioner.
Shri Deepak Khot - Government Advocate for the
respondent/State.
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Reserved on : 22.04.2025
Delivered on : 16.05.2025
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ORDER
This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking quashment of FIR dated 11.11.2023 registered vide crime No.328/2023 and also seizure memo dated 10.11.2023 prepared at the instance of Collector District Bhind being in derogation of the provisions of Fertilizer Control Order, 1985.
2. The aforesaid search and seizure memo has been assailed on the ground that under Section 3 of The Essential Commodities Act, 1955, the Central Government has formulated an order known as Fertilizer (Control) Order, 1985 and as per clause 28 of this order, power has been accorded to the Fertilizer Inspector regarding search and seizure and after the report is prepared, it is required to be Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 5/16/2025 6:13:24 PM 2 reported to the Collector who being an Authority under Section 6 of The Essential Commodities Act, 1955 and can confiscate the fertilizer but the Fertilizer (Control) Order, 1985 does not empower any Authority other than the Inspector appointed under the Fertilizer Control Order, 1985 to make search and seizure but the Collector, Bhind, who had no authority under the Fertilizer (Control) Order, 1985 to search the petitioner's shop and seize the articles, has since made the search and seizure, the entire exercise is bad in law.
3. The short facts of the case are that on 10.11.2023, 105 bags of DAP Fertilizer were seized and were kept at Police Station Mehgaon District Bhind and on the very same day, the Fertilizer Inspector (Senior Agriculture Development Officer) prepared a seizure memo at Police Station meaning thereby that without visiting the petitioner's shop in person, he had prepared the memo at the dictate of Collector as in the seizure memo, it has been mentioned that because of illegal selling of 105 bags of fertilizers, the said bags have been seized. After making the seizure on 10.11.2023, on the next date i.e. 11.11.2023, FIR was registered wherein it was alleged that the petitioner was selling fertilizers from wholesale transaction directly whereas the petitioner possesses both licenses retail and wholesale and thus was having authority to sale fertilizer in retail as well as wholesale market. Further in the FIR, it is alleged that POS cash has not been produced before the Collector and also the entry has not been made in the stock register and in wake of aforesaid illegalities noticed by the Collector, the bags were kept at Police Station Mehgaon and FIR has been lodged by Senior Agriculture Development Officer. The aforesaid fact mentioned in the FIR, in the light of the affidavits filed by the persons who had Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 5/16/2025 6:13:24 PM 3 purchased the aforesaid bags, gets negatived coupled with the fact that in the affidavits, it has been stated by them that they also possessed the bills. Apart from the aforesaid illegality since the Collector has no authority to inspect the shop of the petitioner and seize the bags and keep them in the Police Station and then direct to Senior Agriculture Development Officer to make seizure and lodge FIR, lodging of FIR was bad in law. Thus, being aggrieved by the aforesaid illegal seizure of 105 bags of fertilizers and registration of the FIR, the present petition has been filed for its release of goods and quashment of FIR.
4. Learned counsel for the petitioner has argued that under the Fertilizer (Control) Order, 1985, there is no requirement to sale the fertilizers only through POS device, therefore, no offence was made out, at all, even if it was found that sale of fertilizers was not through POS device. While referring to one letter dated 31.07.2017 issued by Government of India, Ministry of Chemicals and Fertilizers, Department of Fertilizers wherein it is mentioned that POS device is mandatory and if anyone refuses to make transaction through POS device then license would be cancelled, but as no complaint was ever made against the petitioner that the petitioner has refused to make transaction to any customer through POS device, therefore, the sale of fertilizers carried out by the petitioner cannot be said to violation of said letter.
5. Learned counsel for the petitioner has further argued that under the Fertilizer (Control) Order, 1985, it is only the Fertilizer Inspector who can make search and seizure and no other authority is having such right and therefore, the search carried out at the instance of Collector who was having no authority was arbitrary and Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 5/16/2025 6:13:24 PM 4 in defiance of Rule of law.
6. Learned counsel for the petitioner has further argued that Rule of Law is an essential facet of Article 14 of Constitution of India and it is necessary for the authority who is exercising the power that it must have said powers, thus, when the Collector had no authority to inspect the shop and seize the fertilizers and keep the same at Police Station and further direct Senior Agriculture Development Officer to lodge FIR, the whole action being without authority, therefore, is liable to be quashed.
7. While referring to clause 28 of the Fertilizer (Control) Order, 1985, learned counsel has argued that under sub-clause 1 (c)
(d) and (e) of Clause 28 the Fertilizer Inspector reserves power of search and seizure and as per sub-clause (3), when any fertilizer is seized by an inspector under this clause, he shall forthwith report the fact of such seizure to the collector whereupon the provisions of sections 6A, 6B, 6C, 6D and 6E of the Act, shall apply to the custody, disposal and confiscation of such fertilizers, thus when powers of search and seizure only vest with the Fertilizer Inspector, the powers exercised by the Collector was bad in law. On the basis of the aforesaid arguments, it was prayed that the search and seizure carried out at the instance of Collector and thereafter registration of FIR be quashed. To bolster his submissions, learned counsel has relied upon the judgment of Single Bench of Patna High Court rendered in the case of Raj Kumar Prasad Vs. State of Bihar (Criminal Misc. No.1330 of 1993 (R)) on 20.08.1996.
8. On the other hand, learned counsel for the respondent/State had argued that the Fertilizer Inspector/Senior Agriculture Development Officer has done seizure proceedings under Fertilizer Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 5/16/2025 6:13:24 PM 5 (Control) Order, 1985 and accordingly, seizure memo was prepared. After that, the matter was intimated to the Collector Bhind vide letter dated 10.11.2023, thus, it is wrong to say that proper procedure as provided under the Fertilizer (Control) Order, 1985 was not followed.
9. It was further argued that there was sufficient evidence against the petitioner regarding illegal sale of fertilizers to the non- beneficiaries. To clarify, learned counsel submitted that the petitioner was issued two separate licenses for retail and wholesale distribution of fertilizers and as per the rule, the stock is first required to be transferred from the fertilizer supplying company to the MFS ID of the wholesale license. After that, the stock is transferred from wholesale ID to retail ID. After this procedure, the fertilizer is to be distributed to the farmers through a POS machine upon verification of their Adhar card. However, on perusal of letter of KRIBHCO company dated 15.01.2024, it was found that on 10.11.2023, the fertilizer was supplied to the petitioner from rake point and the stock was supplied in wholesale ID at 6:25 pm whereas at 3:30 pm itself on the said date, 105 bags of fertilizers were found to be transferred from wholesale ID to retail ID through POS machine which was without entry in retail ID. Apart from the aforesaid, transfer of fertilizers was found to be without cash memo, thus, the said transfer was in violation of Fertilizer (Control) Order, 1985.
10. It was further argued that on 10.11.2023, on a surprise inspection, the petitioner was found to be illegally transporting 105 bags of DAP fertilizer without any valid document, therefore, the Trolley was sent to the Police Station and thereafter the Fertilizer Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 5/16/2025 6:13:24 PM 6 Inspector conducted search and prepared seizure Panchnama under the provisions of Fertilizer (Control) Order, 1985. Thus, the very act of the Authorities cannot be doubted and faulted with.
11. It was further argued that as per clauses 9.1 to 10.4 of the Fertilizer (Control) Order, 1985, there is a requirement of storage of fertilizer stock in a scientific manner, maintaining the name of fertilizer, quantity number etc. and the stockiest/vendor has to maintain the stock book in which each fertilizer has a separate page, also the vendor has to make an entry for the fertilizer's arrival in the book so maintained, further he has to maintain information regarding the daily sale of fertilizer and every trader will be provided a bill with the name of fertilizer buyer, the name of input, the quantity sold, the sale rate, the total price etc. alongwith the signature of the seller and buyer, but in the present case, the petitioner is found to have violated the aforesaid procedure also and was found to be engaged in sale of subsidized fertilizer to non- beneficiaries, thus, there was clear violation of clauses 4, 5, 35 and 195 of the Fertilizer (Control) Order, 1985.
12. Lastly, learned Government Advocate had argued that since the petitioner has directly sold subsidized fertilizers without entering it into POS machine, fertilizer was rightly seized and FIR was rightly lodged, thus, had prayed for dismissal of petition being sans merits.
13. Heard counsel for the parties and perused the record.
14. The major ground which has been raised by the petitioner is that the search and seizure of the shop of petitioner has been carried out by a person who is not authorized under the Fertilizer (Control) Order, 1985 and therefore, lodging of FIR on its basis is Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 5/16/2025 6:13:24 PM 7 per se illegal.
15. Clause 28 of the Fertilizer (Control) Order, 1985 deals with the powers of Inspectors and provides that :-
(1) An inspector may, with a view to securing compliance with this Order:-
(a) require any manufacturer, importer, pool handling agency, wholesale dealer or retail dealer to give any information in his possession with respect to the manufacture, storage and disposal of any fertilizer manufactured or, in any manner handled by him
(b) draw samples of any fertiliser in accordance with the procedure of drawal of samples laid down in Schedule II. Provided that the inspector shall prepare the sampling details in duplicate In Form J, and hand over one copy of the same to the dealer or his representative from whom the sample has been drawn; (ba) draw samples of any biofertilisers in accordance with the procedure of drawl of samples laid down in schedule III. (bb) draw samples of any organic fertilisers in accordance with the procedure of drawl of samples laid down in schedule IV.
(c) enter upon and search any premises where any fertiliser is manufactured/ Imported or stored or exhibited for sale, if he has reason to believe that any fertiliser has been or is being manufactured/imported, sold, offered for sale, stored, exhibited for sale or 21 distributed contrary to the provisions of this Order;
(d) seize or detain any fertiliser in respect of which he has reason to believe that a contravention of this Order has been or is being or is [attempted] to be committed;
(e) seize any books of accounts or documents relating to manufacture, storage or sale of fertilisers, etc. in respect of which he has reason to believe that any contravention of this Order has been or is being or is about to be committed;
Provided that the Inspector shall give a receipt for such fertilisers or books of accounts or documents so seized to the person from whom the same have been seized;
Provided further that the books of accounts or documents so seized shall be returned to the person from whom they were seized after copies thereof or extracts thereform as certified by such person, have been taken.
(2) Subject to the proviso to paragraphs (d) and (e) of subclause (1), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this clause. Provided also that the inspector shall give the stop sale notice in writing to the person Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 5/16/2025 6:13:24 PM 8 whose stocks have been detained and initiate appropriate action as per the provisions of this order within a period of twenty one days. If no action has been initiated by the inspector within the said period of twenty one days from the date of issue of the said notice, the notice of stop sale shall be deemed to have been revoked.
(3) Where any fertiliser is seized by an inspector under this clause, he shall forthwith report the fact of such seizure to the collector whereupon the provisions of sections 6A, 6B, 6C, 6D and 6E of the Act, shall apply to the custody, disposal and confiscation of such fertilisers.
(4)Every person, if so required by an inspector, shall be bound to afford all necessary facilities to him for the purpose of enabling him to exercise his powers under sub-clause (1).
16. Sub-clause (c) of Clause 28 provides that an Inspector may enter upon and search any premises where any fertiliser is manufactured/ Imported or stored or exhibited for sale, if he has reason to believe that any fertiliser has been manufactured/imported, sold, offered for sale, stored, exhibited for sale or 21 distributed contrary to the provisions of this Order and thereafter as per clause
(d) and (e) seize or detain any fertiliser in respect of which he has reason to believe that a contravention of this Order has been committed and can also seize the books of accounts or documents relating to manufacture, storage or sale of fertilisers, etc. in respect of which he has reason to believe that any contravention of this Order has been or is being or is attempted to be committed.
17. Thus, from the aforesaid sub-clauses, it is clear that only the Inspector has an authority to enter a premises with an intention to search of a fertilizer being manufactured, stored or sold in contravention of this order, but herein case 105 bags of DAP fertilizer were found being transported without any valid document in a surprise inspection, therefore, the said bags were directed to be kept at Police Station and Fertilizer Inspector/Senior Agriculture Development Officer was informed who thereafter went to the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 5/16/2025 6:13:24 PM 9 Police Station and prepared seizure Panchnama and at his instance, FIR was registered and thereafter, the matter was reported to the Collector as provided under sub-clause (3) of Clause 28 of the Fertilizer (Control) Order, 1985. Thus, to this extent, this Court finds that no procedural impropriety was committed by the respondents in carrying out the search and seizure and accordingly, FIR registered on its basis cannot be said to be bad in law.
18. With regard to arguments raised by the counsel for the petitioner on merits that he had two licenses one for retail and one for wholesale, therefore, he was authorized to sale the said fertilizer is concerned, so also the argument that all the requirement of Fertilizer (Control) Order, 1985 were complied with in keeping the books of accounts, maintaining the register etc., since are required to be proved by evidence and could be rebutted by the petitioner during trial, is not required to be gone into at this juncture as it would amount to conduct mini trial which is not permissible in the eyes of law.
19. The judgment relied upon by learned counsel for the petitioner being based on different facts is not applicable in the facts of present case, thus, is of no help to the petitioner.
20. Accordingly, the present petition deserves to be and is hereby dismissed.
(MILIND RAMESH PHADKE)
ojha JUDGE
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 5/16/2025
6:13:24 PM