Karnataka High Court
Sangappa Pattanashetti And Anr vs The State Of Karnataka And Anr on 14 September, 2022
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.200868/2022
BETWEEN:
1. SANGAPPA PATTANASHETTI
S/O SIDDALINGAPPA PATTANASHETTI
AGE. 45 YEARS, OCC.PROPRIETOR OF
REVANASIDDESHWAR KRISHI KENDRA,
DEVARAHIPPARAGI,
DIST. VIJAYAPURA 586115
R/O BIJAPUR ROAD, NEAR BLDE HIGH SCHOOL,
DEVARAHIPPARAGI DIST VIJAYAPURA 586115
2. VASANT S/O BABU VANTAMURE
AGE. 51 YEARS, OCC. EX-EMPLOYEE OF
GHATAPRABHA FERTILIZERS PVT LTD 329/1
NADIKURALI TQ. RAIBAG, DIST BELGAUM 591317
R/O WARD NO.2 SUGAR FACTORY ROAD,
RAIBAG, DIST BELAGAVI 591317
...PETITIONERS
(BY SRI. AVINASH A. UPLOANKAR, ADVOCATE
AND SRI. RAVI K. ANOOR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY
ADDL SPP HIGH COURT OF KARNATAKA
KALABURAGI BENCH 585107
2. THE GOVERNEMNT OF KARNATAKA
DEPARTMENT OF AGRICULTURE,
REPRESENTED BY
THE FERTILIZER INSPECTOR
2
CUM ASSISTANT DIRECTOR OF
AGRICULTURE SINDAGI
TQ. SINDAGI, DIST VIJAYAPURA 586128
...RESPONDENTS
(BY SRI. GURURAJ V. HASILKAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO EXERCISE INHERENT POWERS U/SEC. 482 OF
CR.P.C., EXAMINE THE RECORDS AND QUASH THE TAKING
COGNIZANCE IN C.C NO. 210/2019, DATED 27.02.2019, FOR THE
OFFENCE U/SEC. 3 AND 7 OF ESSENTIAL COMMODITIES ACT
1955, PENDING BEFORE THE CIVIL JUDGE AND JMFC COURT AT
SINDAGI, AGAINST THE PETITIONERS.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT PASSED THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short) seeking to quash the proceedings in C.C.No.210/2019 dated 27.02.2019 for the offences punishable under Sections 3 and 7 of Essential Commodities Act (hereinafter referred to as 'the E.C.Act' for short), 1955, pending on the file of Civil Judge & JMFC, Sindagi.
2. It is contended that respondent No.2 is Agriculture Officer and Fertilizer Inspector, Assistant Director 3 of Agriculture, Sindagi has filed a private complaint against petitioner No.1-Firm/Revanasiddeshwar Krishi Kendra, Devarhipparagi. The said firm is doing business as a retailer in fertilizer. Petitioner No.2 is responsible person of the company (ex-employee of the company) and the said company is distributing the ferilizers.
3. It is further contended that respondent No.2 visited the premises of petitioner No.1. During the inspection, complainant drew the sample of the fertilizers called 17:17:17 granutetad mixture from the fertilizers stock. The sample is divided the same into three portions in empty, clean and dry containers were separately. Then he received the reanalysis from the Commissioner of Agriculture, Bengaluru, wherein the report shows that the sample of the fertilizer is non-standard one. The copy is delivered to the petitioners. Thereafter, the complaint was filed prosecuting these petitioners. On the basis of said complaint, the learned Magistrate took cognizance and issued summons to the petitioners, which is challenged herein.
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4. Heard Sri. Ravi K. Anoor, Learned counsel for the petitioners and Sri.Gururaj V. Hasilkar, learned High Court Government Pleader for the respondents.
5. Learned counsel for the petitioners argued that the petitioners are the distributor and responsible person of the company(ex-employee of the said company) and they are not the manufactures. He further argued that Section 10 of the Companies Act, is not complied with and therefore, cognizance could not have been taken by the Magistrate. He further argued that the private complaint is filed only against the authorized officer of the company without charging the company with any liability which is against Section 10 of the Companies Act. The petitioners are not responsible for quality control of the fertilizers and they are not manufacturers. Therefore, the petition is not tenable against them.
6. He further argued that Sections 3 and 7 of the Act require that action is to be taken in respect of violation of provisions of Act only at the instance of authorized officer. He further argued that this Court in similar set of facts quashed the proceedings in Crl.P.No.200186/2022 DD 5 26.05.2022 and Crl.P.No.200840/2022 and connected matters DD 12.08.2022. Therefore, continuation of criminal proceedings against the petitioners is abuse of process of Court and prayed to set aside the impugned order.
7. Against this, learned High Court Government Pleader argued that after verifying the complaint and receiving the report has filed the charge sheet. Hence, he prayed to dismiss the petition.
8. In view of the aforesaid contention, the Point that arises for consideration is:
"Whether the proceedings initiated against petitioners required to be quashed as it is bad in law?"
9. My answer to the above point is as under for the reasons given below:
10. Admittedly in this case it is stated that petitioner No.1 is dealer i.e. proprietor of Revenasiddeshwar Krishi Kendra and petitioner No.2 who is stated to be responsible person of the Company (ex-employee of Ghataprabha 6 Fertilizers Pvt. Ltd.,). So admittedly, the company is not made as party here.
11. As per Section 10 of the E.C. Act if a person contravening an order made under Section 3 of the E.C. Act is a company, the person in charge of the company and the company shall be deemed to be guilty of contravention shall be punished and the offence is cognizable one. Section 7 of the E.C. Act is a penalty clause. In order to appreciate the contention, it is necessary to refer to Section 10 of the E.C. Act, 1955 which reads as under:
"10. Offences by companies.-
(1) If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly."
12. Therefore, on perusing the said Section, it is evident that when a complaint is lodged for alleged contravention of Section 3 of the E.C. Act which is punishable 7 under Section 7 of the EC Act, not only the person who is responsible or incharge is to be made as a party, but the company shall also be made as a party. But admittedly, in this case, in complaint it is stated that petitioner No.1 is a dealer and petitioner No.2 is stated to be a responsible person of the said Company. The company i.e. Ghataprabha Fertilizers Pvt. Ltd., is not made as a party, but complaint is filed only against Sangappa Pattanashetti and Vasant S/o Babu Vantamure in their individual capacity.
13. Learned counsel for the petitioners referred to the order passed by this Court in Criminal Petition No.200840/2022 and connected matters DD 12.08.2022 in case of Sidgonda vs. The Sate of Karnataka and another; the Co-ordinate Bench of this Court in Criminal Petition No.200186/2022 DD 26.05.2022 in the case of Mahesh Naik vs. The State of Karnataka and another; and in Criminal Petition No.201683/2021 and connected matters DD 21.12.2021, in the case of Mahesh Naik S/o Vijaya S.Naik vs. The State of Karnataka and Another relying on the earlier order passed by this Court, in the similar complaint wherein only the compliance officer/quality 8 control officer of the company is prosecuted but not the company, taking into note of Sections 3 and 7 of the EC Act and also Order 19(a) of the Fertiliser (Control) Order, 1985, there is bar under Section 10 of the E.C. Act, unless the company is made a party, there cannot be criminal prosecution against the Dealer/ex-employee, who is stated to be responsible person of the said Company.
14. Therefore, Section 10 of the E.C. Act clearly mandates if the offence is committed, the company ought to have been made a party to the proceedings. On perusing the orders of the Co-ordinate Bench of this Court, it is evident that in this case also the company is not made as accused. It is only dealer and against ex-employee of the said company are made as accused. Therefore, the learned Magistrate has not taken all these aspects into consideration while taking cognizance and proceeded to pass the impugned order of taking cognizance mechanically.
15. Hence, in view of Section 10 of the E.C. Act and also the orders passed by the Co-ordinate Bench of this Court 9 referred to above regarding taking cognizance, the interference of this Court is required.
16. Accordingly, I proceed to pass the following:
ORDER The petition is allowed. The impugned order dated 27.02.2019 passed by the learned Civil Judge & JMFC, Sindagi, in C.C.No.210/2019 is hereby quashed.
However, liberty is reserved to the complainant to cure the defect and proceed against the accused in accordance with law, if he is advised to do so and if he is entitled under law.
Sd/-
JUDGE s du