Gujarat High Court
Nareshkumar Lilachand Patel vs State Of Gujarat on 27 October, 2023
NEUTRAL CITATION
R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7828 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NARESHKUMAR LILACHAND PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/10/2023
CAV JUDGMENT
1. The present petition is filed by the present petitioner - original accused seeking the following reliefs: Page 1 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023
NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined "(A) The Hon'ble Court may be pleased to quash the Criminal Case No. 1988 of 2012 pending before the Ld. Judicial Magistrate First Class, Court at: Dabhoi, Dist: Vadodara and the summons issued by the Ld. Judicial Magistrate, Court at: Dabhoi, Dist: Vadodara dated 05.09.2012 as well as the summons issued by the Ld. Judicial Magistrate, Court at: Dabhoi, Dist:
Vadodara dated 05.09.2012 issued for in connection with the criminal case No. 1988 of 2012 all the other and further consequential proceedings arising out of the Criminal Case No. 1988 of 2012 pending before the Ld. Judicial Magistrate First Class, Court at: Dabhoi, Dist: Vadodara.
(B) Pending admission, hearing and final disposal of the present application, this Hon'ble Court may be pleased to stay the further proceedings arising out of the said Criminal Case No. 1988 of 2012 pending before the Ld. Judicial Magistrate First Class, Court at: Dabhoi, Dist: Vadodara and the summons issued by the Ld. Judicial Magistrate, Court at: Dabhoi, Dist:
Vadodara dated 05.09.2012.
(C) xxxxx."
2. Brief facts as per the case of the petitioner in this petition are as such that on 19.06.2011, the original Page 2 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined complainant had visited the Agri Business Centre, Nandodi Bhagod At: Tal Dabhoi, Dist: Vadodara and had taken sample for testing and on 19.06.2011, the said sample was sent for analysis at Bardoli, Dist: Surat. The analysis report dated 16.07.2011 reflected that the sample was substandard and therefore, instituted the Criminal Case No.1988 of 2012 before the Ld. Judicial Magistrate First Class, Tal: Dabhoi, Dist: Vadodara. In the said Criminal Case, against the present petitioner, the allegation is that he is a responsible person of the producer company and that under his supervision such substandard material was being produced. It is the case of the petitioner in this petition that the offence under order 19-1 (a) of the Fertilizer Control Order, 1985 is committed. It is the case of the petitioner in this petition that there is breach of Sections 3 and 7 of the Essential Commodities Act, 1955. It is the case of the petitioner in this petition that the producer Company was issued with a show cause notice and the same was being answered. Pursuant to the aforesaid, by way of the office order dated 19.05.2012, a permission/sanction was received from the office of the director, Agriculture Department, State Of Gujarat at Gandhinagar. On Page 3 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined having received the said permission the Criminal complaint came to be instituted and the Criminal Case No. 1988 of 2012 came to be filed before the Ld. Judicial Magistrate Tal: Dabhoi, Dist: Vadodara was pleased to issue summons on 05.09.2012 against the accused persons named in the Criminal Case.
It is the case of the petitioner in this petition that the said summons was issued without taking verification. The said summons was served to the petitioner herein and he appeared before the Ld. Magistrate through the advocate. It is the case of the petitioner in this petition that despite the order of summon is dated 05.09.2012. It is the case of the petitioner in this petition that in the present case, despite the fact that the Criminal Case is being instituted on 05.09.2012 and the summons was being issued on 05.09.2012, a copy of the summons was dispatched on 18.01.2014 and the first returnable date was kept to be on 12.01.2014. The petitioner appeared before the Hon'ble Court through the lawyer and till date he continues to remain present during the Court proceedings. However, to the best to the knowledge of the petitioner, some of the accused have not been served Page 4 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined with the summons and after 7 years of the institution of the Criminal Case, the criminal case is not proceeding further and it is at the stage of service of summons to the other accused. Till date number of adjournments had been given in the present criminal case and because of the fact that the accused persons are not served with the summons, the criminal case is pending at this stage and there is no likelihood that the criminal case shall proceed in near future. Even otherwise when the offence alleged against the petitioner are not made out and when the petitioner is falsely being implicated in the present case and considering the fact that the Criminal Case is not likely to proceed in near future, the petitioner points out that the present criminal case is nothing but a clear cut misuse of process of Law and therefore the present petition is preferred under Article 226 and 227 of the constitution of India under Section Criminal Procedure Code, 1973 seeking quashment of Criminal Case No. 1988 of 2012 pending before the Ld. Judicial Magistrate, Tal: Dabhoi, Dist: Vadodara. Hence, the present petition is preferred.
3. Heard the learned counsel, Mr. Jigar Gadhvi, for Page 5 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined the petitioner and Mr. Chintan Dave, the learned Additional Public Prosecutor (APP) for the respondent No.1 - State of Gujarat.
4.1. The learned counsel, Mr. Jigar Gadhvi, for the petitioner has drawn my attention to the complaint, which is filed before the Judicial Magistrate First Class, Court at: Dabhoi, Dist: Vadodara vide criminal case No. 1988 of 2012, whereby the authorities have filed the criminal case against the applicant for the offences punishable under Order 19-1 (a) of the Fertilizer Control Order, 1985 and under Sections 7(1)(a)(2) of the Essential Commodities Act, 1955, whereby the Magistrate has issued the summons, which is challenged by way of the present petition. Furthermore, he has submitted that prima facie, the impugned criminal case and summons issues thereupon do not make out any offence on bare reading of the impugned complaint. Furthermore, he has submitted that in the present case, from the analysis report dated 16.7.2011 of the Fertilizer Sample, it clearly reflects that the sample was taken on 19.6.2011 and the said sample was received on 24.06.2011 i.e. after 5 days. Furthermore, he has submitted that the sample was Page 6 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined taken for analysis and was put to analysis between 13.07.2011 to 16.07.2011. The remarks in the said certification indicated that the sample is not according to the specification in water soluble P2O5. Furthermore, he has submitted that the sample after collection on 19.06.2011 was put to analysis after lapse of 24 days, and since, it was rainy season at the relevant point of time the same would have a clear cut impact on the humidity of the material collected and thereafter, the said aspects prejudicially affects the case of the petitioner. Furthermore, he has submitted that as provided under the law under Fertilizer Control Order, 1985, the report of the analyses is required to be supplied to the dealer of the manufacturing limit within 15 days so that the person may exercise right to send it for re-analysis. The analysis report was not being sent to the petitioner within 15 days and therefore, the valuable statutory right of the petitioner to have re-analysis got affected, and the petitioner was deprived of his right to seek reanalysis of the sample. Furthermore, he has submitted that the show cause notice was issued by the respondent No. 2 complainant dated 26.07.2011 and the said notice was being answered by the petitioner pointing Page 7 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined out the relevant facts of the case and the defense was put before the office and without looking into the facts of the case and the defense put by the petitioner, the very act of instituting the Criminal Case reflects a prejudicial and biased approached of the authorities. 4.2. Furthermore, he has submitted that in the present case when the sample was being collected, no search seizure Panchanama was drawn and therefore, when the very statutory provision of the Fertilizer Control order is being violated and the very act of seizure of material and/ or taking sample becomes illegal from the very beginning. Furthermore, he has submitted that from the sanction papers, it does not reflect any details as regards Panchanama and it also does not reveals that in what container and/or vessel the sample was taken. Furthermore, he has submitted that it is mandatory that the said exercise of taking sample has to be done objectively and as provided under the law. Therefore, he has submitted that the procedure as provided under the provisions of the Fertilizer Control Order, 1985 is required to be followed strictly, especially the provisions of "Schedule II of Part-A of the Fertilizer (Control) Page 8 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined Order, 1985". Furthermore, he has submitted that in the present case, the same is not strictly followed, especially the provision relating to "general requirement of sampling" i.e. Rule 1(e) of Schedule II - Part-A relating to the requirements of sampling. Therefore, Furthermore, he has submitted that the proceedings initiated by the authorities is required to be quashed and set aside.
4.3. Furthermore, he has submitted that the respondent has to follow the manner and method regarding "drawal of samples of bags" as provided under Rule 4 Schedule II - Part-A relating to drawal of samples of bags. Furthermore, he has submitted that in the present case, the respondent has failed to point out details with regard to the container in which, the sample is taken as well as detail as to whether fertilizer is emptied in a container / or on polyethene sheet / or on a clean hard surface and whether it was made into one composite sample. Furthermore, he has submitted that Rule 5 of Schedule II - Part-A, which is relating to preparation of composite sample is also not satisfied, since, no material is produced by the respondent to show that the sample Page 9 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined was spreaded on a level, clean, hard surface and that whether it was flattened out and divided into four equal parts and the process of mixing of two remaining parts together to form a cone and as to whether the cone was flattened and whether the operation of quartering was repeated till a composite sample of required weight. is obtained or not. Thus, the process of preparation of composite sample as provided under the law is not followed at all. Therefore also, the entire process gets vitiated.
4.4. Furthermore, he has submitted that the procedure with regard to preparation of test sample and reference sample as provided under Rule 6 of Schedule II - Part-A is also not followed. Details with regard to container in which the sample was taken, is not provided in Form "J" and reference is made only with regard to the bag form which the samples were drawn. No detail as provided under Rule 6(ii) with regard to the "suitable container" as defined under Rule 1(e) is provided in Form "J" by the Respondent. In fact, is Form "J" does not reflect any details with regard to container in which the sample was drawn. This clearly vitiates the Page 10 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined proceedings. So far as the signature indicated in Form "J" is concerned, it is signature of the dealer only and not the signature of the present petitioner, who is the manufacturer. In the reply filed by the respondent, it is wrongly stated in paragraph no.7 of the reply that Form "J" was signed by the Petitioner. Thus, when the material placed on record by the Respondent does not reflect that detail about the container in which the sample was drawn, mandatory provisions cannot be said to have been followed and thus, the proceedings may be quashed and set aside.
4.5. Furthermore, he has submitted that the respondent has failed to furnish details by way of definite panchnama / inspection note and/or inspection memo and/ or seizure memo in the present case. When the respondent has failed to show any panchnama inspection note and/or inspection memo and/or seizure memo, no precise step taken by the inspector to draw the samples can be determined in the present case and it cannot be said that the procedure was duly followed. Therefore, considering the decision in the case of Ms. Chittari Agricare Pvt. Ltd. V/s. State of Rajasthan, reported in Page 11 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined 2015 (1) RCR (Criminal) 929 : AIR Online 2014 Raj 13 and considering AIR Online 2022 Raj 3606 (Ms. Chittari Agricare Pvt. Ltd., Bangalore, Karnataka V/s. State of Rajasthan), the present case may be allowed and the impugned proceedings may be quashed and set aside as neither Panchnama nor seizure memo is found. 4.6. Furthermore, he has submitted that considering the various decisions including the judgment in the case of Sham Lal Vs. State of Haryana, reported in 2004 (1) EFR 243 and other decisions of 1987 (2) C.LR. 291 and 1988 EFR 425 and 1990 (1) EFR 206, the proceedings initiated against the petitioner may be quashed and set aside, considering that no plausible explanation has been put forth on behalf the State as regards the procedure adopted for taking the sample. Therefore, he has prayed that the present petition may be allowed as continuation of proceedings would amount to an abuse of process of law.
5.1. On the contrary, Mr. Chintan Dave, the learned Additional Public Prosecutor (APP) for the respondent No.1 - State of Gujarat, has strongly opposed the Page 12 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined prayers made in the present petition. He has relied on Rule 1(e) of the Act and has also drawn attention to Form "J," submitting that the only requirement under Rule 1(e) of the Act is for compliance by furnishing Form "J." Furthermore, he has drawn my attention to the affidavit, specifically, paragraphs 7 to 9, which are relevant. He has submitted that the authority has acted in accordance with the procedure stated in the Fertilizer Control Order 1985. Samples were taken on 19.6.2011, with 1 kg of random samples from 3 bags placed in a polythene bag and sealed. The samples were sent for laboratory testing on 20.06.2011. He further stated that the 1st sample and 2nd sample were sealed and kept for the Lower Court, while the 3rd sample was given to the dealer, accompanied by a "Form J" signed by the petitioner himself. He has drawn this Court's attention to the copy of Form "J." Moreover, he has submitted that the analysis was received on 16.07.2011, and the samples were deemed non-standard, which led to the request for sanction to file a complaint.
5.2. Furthermore, he has argued that as for the petitioner's contention that the samples were not sent Page 13 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined within the prescribed time limit for analysis, the petitioner refers to the notification and the Act, which is a newly amended act not applicable to the present case. He has attached a copy of Clause-30 from the Fertilizer Control Order, 1985 to the affidavit-in-reply, drawing my attention to it and arguing that, taking all these aspects into consideration, the petitioner's claim that the Panchnama was not drawn is unfounded. He maintains that the procedure prescribed under the Act was followed as per the Act's own rules, which do not mandate the drawing of a Panchnama but require adherence to the procedure itself. Therefore, the present petition is required to be dismissed. Lastly, he has argued that, in any case, considering the nature of the dispute, which is essentially factual, and taking into account the fact that the concerned Court will decide the matter on its merits after providing the parties an opportunity to present evidence, the contentions raised in the present petition can also be addressed by the trial court. The concerns pertain to whether the prescribed procedure was followed or is necessary. He contends that the present petition does not warrant consideration, particularly in light of the judgment of the Hon'ble Apex Court in the case of Page 14 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, specifically para 80.
6.1. I have heard the rival submissions made at the bar by the respective parties. It is pertinent to note that the dispute primarily revolves around whether it is necessary to prepare a Panchnama at the time of sample collection and when sending the sample to the laboratory. The learned counsel for the petitioner has mainly based their argument on this aspect, despite raising additional contentions in the petition. Therefore, taking into account that the current complaint is filed under Order 19-1(a) of the Fertilizer Control Order, 1985, and Sections 7(1)(a)(2) of the Essential Commodities Act, 1955, as well as other relevant provisions involved in this proceeding are required to be reproduced.
6.1.1. Order 19-1(a) of the Fertilizer Control Order, 1985, as under:
"19. Restriction on manufacture/import, sale and distribution of fertilisers No person shall himself or by any other person on his Page 15 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined behalf:-
(a) manufacture/import for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertlliser which Is not of prescribed standard;"
6.1.2. 7(1)(a)(ii) of the Essential Commodities Act, 1955, as under:
"(1) If any person contravenes any order made under section 3,--
(a) he shall be punishable,--
(i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and
(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:
35 [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;]"
6.1.3. Rules 3, 4(i), (ii) & (iii) & 6 of the Schedule II Page 16 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined of Part-A of the Fertilizer (Control) Order, 1985 are relevant, as under:
"3. Sampling probe An appropriate sampling instrument to be used by the Inspectors for collection of a representative sample is called sampling probe. The probe may comprise of a slotted single tube with solid cone tip made of stainless steel or brass. The length of the probe may be approximately 60 to 65 cms and the diameter of the tube may be approximately 1.5 cm and the slot width may be 1.2 to 1.3 cms. The probe may be used if the physical condition of the fertilisers and the packing material permits its use.
(11) In case of High Density Polyethylene packings and also when the fertiliser material is not in free flowing condition, the use of sampling probe may not be possible. In such a case, selected bags for drawing samples may be opened and the fertilisers may be taken out of the bags and spread on a clean surface and samples drawn with the help of a suitable sampling device which may be made of stainless steel or brass cup.
4. Drawal of samples from bags
(i) Drawal of sample and preparation of composite Page 17 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined samples. Draw, with an appropriate sampling instrument, (sampling probe) small portions of the material from the selected bags as per procedure in para 2 (i) (b), 2 (ii), 2 (iii) and 2 (iv) (a). The sampling probe shall be inserted in the bag from one corner to another diagonally and when filled with fertiliser, the probe is withdrawn and fertiliser is emptied in a container/ or on polythene sheet/ or on a clean hard surface and made into one composite sample.
(ii) If the bags do not permit the use of sampling probe, empty the contents of the bags on a level, clean and hard surface and draw a composite sample by the process of quartering as described under para 3 (ii) or
5.
(iii) In case of chelated micro-nutrients and mixtures of micro-nutrients, the three identical containers of the batch, grade, type and manufacturer, shall be selected which shall constitute the composite samples, provided it is not possible to draw a composite sample of the size given under para 4A (iii).
6. Preparation of test sample and reference sample (1) The composite sample obtained above shall be spread out on a clean, hard surface and divided into three approximately equal portions each of the weight Page 18 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined as specified in Para 4 A. Each of these samples shall constitute the test sample.
(ii) Each test sample shall be immediately transferred to a suitable container as defined under para 1(e). The slip with detailed description may be put inside the sample bag. Each bag shall also be properly labelled as mentioned in para 1(6).
(iii) Each test sample container shall then be sealed with the seals of the inspector. if possible, seal of the manufacturer/importer/ dealer or purchaser as the case may be, may also be affixed.
(iv) Out of the three samples collected, one sample so sealed shall be sent to the Incharge of the Laboratory notified by the State Government under clause 29 or Central Fertiliser Quality Control and Training Institute, Faridabad or Regional Fertiliser Control Laboratories at Mumbai, Chennai or Kalyani (Kolkota) for analysis. Another sample shall be given to the manufacturer or importer or dealer or the purchaser, as the case may be. The third sample shall be sent by the inspector to his next higher authority for keeping in safe custody. Any of the latter two samples may be sent for referee analysis as provided for under sub-
clause (2) of clause 29B."
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NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined 6.1.4. Rule 1(e) of Schedule II - Part-A of the Fertilizer (Control) Order, 1985, as under:
"1(e) The sample shall be kept in suitable, clean dry and air tight glass or screwed hard polythene bottle of about 400 gm capacity or in a thick gauged polythene bag and this shall be put in a cloth bag which shall be sealed with the Inspector's seal. (ii) The sealed cloth bag containing the sample and Form P shall be kept in another cloth bag which shall also be sealed with the Inspector's seal. (iii) The identifiable details such as Sample number/Code number or any other details shall be put on the cloth bag containing sample and Form P which enables its identification;"
6.1.5. Clauses 3, 4 and 30 of the Fertilizer (Control) Order, 1985, as under:
"3. Fixation of prices of fertilisers
1. The Central Government may, with a view to regulating equitable distribution of fertilisers and making fertilisers available at fair prices, by notification in the Official Gazette, fix the maximum prices or rates at which any fertiliser may be sold by a dealer, manufacturer, importer or a pool handling agency.Page 20 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023
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2. The Central Government may having regard to the local conditions of any area, the period of storage of fertilisers and other relevant circumstances, fix different prices or rates for fertilisers having different periods of storage or for different areas or for different classes of consumers. 3. No dealer, manufacturer importer or pool handling agency shall sell or offer for sale any fertiliser at a price exceeding the maximum price or rate fixed under this clause.
4. Display of stock position and price list of fertilisers Every dealer, who makes or offers to make a retail sale of any fertilisers, shall prominently display in his place of business:-
(a) the quantities of opening stock of different fertilisers held by him on each day; Explanation -The actual stocks at any point of time during the day may be different from that of the displayed opening stocks to the extent of sale and receipt of such fertilisers upto the time of inspection during that day
(b) a list of prices or rates of such fertilisers fixed under clause 3 and for the time being in force.
30. Time limit for analysis, and communication of result (1) Where sample of a fertiliser has been drawn, the same shall be dispatched alongwith a memorandum in Page 21 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined Form K and in case of Organic fertilizers and Biofer tilisers in Form KI to the laboratory for analysis within a period of seven days from the date of Its drawal.
(2) The laboratory shall analyse the sample and forward the analysis report in Form L and in case of Organic fertilizer and Biofertiliser in Form LI within [30 days] from the date of receipt of the sample in the laboratory to the authority specified in the said memorandum.
(3) The authority to whom the analysis report is sent under sub-clause (2) shall communicate the result of the analysis to the dealer/manufacturer/Importer/pool handling agency from whom the sample was drawn within [15 days] from the date of receipt of the analysis report of the laboratory."
6.2. The petitioner's argument is based on the observation that the respondent, as evident from the reply and other materials in the record, did not provide any evidence of the proper procedure being followed to obtain Panchnama, while drawing the sample and subsequently sending it for a laboratory report. This absence of documentation and evidence regarding the procedure being conducted led the petitioner to conclude Page 22 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined that the proceedings should be considered as vitiated. 6.2.1. In support of the same, he has relied upon the decision in the case of Ms. Chittari Agricare Pvt. Ltd., Bangalore, Karnataka V/s. State of Rajasthan, reported in AIR Online 2022 Raj 3606, more specifically paragraphs 3, 4 & 5 are relevant, as under:
"3. The precise submission of the counsel for the petitioner is that Fertilizer Control Order 1985 is invoked as issued under Section 3 of the Essential Commodities Act, 1955 and such order stipulated mandatory procedure to be followed by Fertilizer Inspector
4. Learned counsel for the petitioner has draws attention of this Court to the Schedule (1) of pars A of Fertilizer Control Order, 1985, the relevant provisions of which are as follows Part-A PROCEDURE FOR DRAWAL OF SAMPLES OF FERTILIZERS
1. General requirement of sampling:Page 23 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023
NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined In drawing samples, the following measures and precautions should be observed
(a) Samples shall not be taken at a place exposed to rain/su
(b) The sampling instruments shall be clean and dry when used;
(c) The material being sampled, the sampling instrument and the bags of samples should be free from any adventitious contaminations;
(d) To draw a representative sample, the contents of each bag selected for sampling should be mixed as thoroughly as possible by suitable means;
(e) The sample should be kept in suitable, clean dry and air tight glass or screwed hard polythene bottle of about 400 gm capacity or in a thick gauged polythene bag. This should be put in a cloth bag which may be sealed with the Inspector's seal after putting inside the detailed description as specified in Form "J" Identifiable details may also be put on the cloth bag like sample No/Code No. or any other details which enables its identification;Page 24 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023
NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined (1) Each sample bag should be sealed air tight after filling and marked with details of sample, type and brand of fertilizer, name of dealer/manufacturer/importer and the name of Inspector who has collected sample.
2. Sampling from bagged material:
(1) Scale of sampling
(a) Lot (for manufacturers/importers) All bags in a single consignment of the material of the same grade and type drawn from a single batch of the manufacturer/importer shall constitute a lot. If a consignment is declared to consist of different batches of manufacturer/import, all the bags of each batch shall constitute a separate lot. In the case of a consignment drawn from a continuous process, 2000 bags (or 100 tones) of the material shall constitute a lot.
(b) Lot (for dealers):
The lot is an identifiable quantity of same grade and type of fertilizer stored at an identifiable place subject to a maximum limit of 100 tones. The lot shall be identified by the inspector based on visible appearance of bags, their packing and storage conditions. The stock of less than 100 tones with a dealer may also Page 25 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined constitute one or more lots, if the material (fertilizer) or different sources and brand is available in such quantities.
(c) Selection of bags for sampling:
The number of bags to be chosen from a lot shall depend upon the size of the lot as given in the table below.
Total size (No. of bags) No. of bags to be selected
(N) for sampling (n)
Less than 10 1
10-100 2
100-200 3
200-400 4
400-600 5
600-800 6
800-1000 7
1000-1300 8
1300-1600 9
1600-2000 10
All the bags of a lot should be arranged in a
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systematic manner. Start counting from any bag
randomly. go on counting as 1,2,3,- up to r and so on, r being equal to the integral of N/n. Thus every rth bag counted shall be withdrawn and all bags shall constitute the sample bags from where the sample is to be drawn for preparing a composite sample.
(ii) Sampling from big godowns/high stackings: If the procedure given in para 2(1) (c) is not possible to be adopted, the sample should be drawn from the randomly selected fertilizer bags from different layers, from top and from all open side in a zig fashion.
(iii) Sampling from small godowns All the fertilizer bags of the same grade and type of each manufacturer though received on different dates shall be segregated and properly stacked. All bags of same grade and type of fertilizer manufactured by a particular manufacturing unit may be considered as one lot based on their physical conditions and the sample shall be drawn as per procedure laid in Para 2(i) (c) and 4.
(iv) Sampling from damaged stock:
(a) In case of torn or lumpy bags, damaged fertilizer Page 27 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined bags or sweepings, the stock should be arranged according to identifiable lots. From each lot the number of bags shall be selected as per procedure 2(1)(c). If the bags allow the use of sampling probe conveniently, the sample should be drawn by sampling probe.
(b) In case it is not possible to use the sampling probe, the bags may be opened and fertilizer material mixed together uniformly by hammering the big lumps or putting pressure, if require and then samples drawn by using suitable sample device.
3. Sampling probe:
(1) An appropriate sampling instrument to be used by the Inspectors for collection of a representative sample is called sampling probe. The probe may comprise of a slotted single tube with soil cone tip made of stainless steel or brass. The length of the probe may be approximately 60 to 65 cms and the diameter of the tube may be approximately 1.5 cm and the slot width 1.2 to 1.3 cms. The probe may be use if the physical condition of the fertilizers and the packing material permits it use.
(ii) In case of High Density Polythylene packing and also when the fertilizer material is not in free flowing Page 28 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined condition, the use of sampling probe may not be possible. In such a case, selected bags for drawing samples may be opened and the fertilizers may be taken out of the bags and spread on a clean surface and samples drawn with the help of a suitable Sampling device which may be made of stainless steel or brass cup.
4. Drawal of samples from bags:
(1) Drawal of sample and preparation of composite samples. Draw, with an appropriate sampling instrument, (sampling probe) small portions of the material from the selected bags as per procedure in para 2(1)(b) 2(ii) 2(iii) and 2 (iv) (a). The sampling probe shall be inserted in the bag from one corner to another diagonally and when filled with fertilizer, the probe is withdrawn and fertilizer is emptied in a container/or on polythene sheet/or on a clean hard surface and made into one composite sample.
(ii) If the bags do not permit the use of sampling probe, empty the contents of the bags on a level. clean and hard surface and draw a composite sample by the process of quartering as described under para 3 (ii) or
5.+ (m) In case of chelated micro-nutrients and mixtures of micro-nutrients, the three identical Page 29 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined containers of the batch, grade, type and manufacturer, shall be selected which shall constitute the composite samples, provided it is not possible to draw a composite sample of the size given under para 4A (iii). 4A. Weight of one sample.
One sample of fertilizer shall have the approximate weight, as specified below:-
(i) For straight micro-nutrient fertilizers- 100 gms.
(ii) For chelated micro-nutrient fertilizers and 50gms or mixtures of micro-nutrients the maximum packing size of similar quantity
(iii) For other fertilizer and mixtures of fertilizers 400 gms.
5. Preparation of composite sample.
If the composite sample collected from the different selected bags is large then required weight, its size shall be reduced by method of quartering as detailed below:-
Spread the composite sample on a level, clean, hard surface, flamen it out and divide it into four equal Page 30 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined parts. Remove any diagonally opposite parts. Mix the tow remaining parts together to form a come flatten out the cone and repeat the operation of quartering till a composite sample of required weight is obtained
6. Preparation of test sample and reference sample. (The composite sample obtained above shall be spread out on a clean, hard surface and divided into three approximately equal proportions+ each of the weight as specified in Para 4A. Each of these samples shall constitute the test sample.
(i) Each test sample shall be immediately transferred to a suitable container as defined under para 1(e). The slip with detailed description may be put inside the sample bad. Each bag shall also be properly labeled as mentioned in Para 1(0)
(ii) Each test sample container shall then be sealed with the seals of the inspector. If possible, seal of the manufacturer/importer/dealer or purchaser as the case may be, may also be affixed.
(iv) One sample so sealed shall be sent to the Incharge of the Laboratory notified by the State Government under clause 29 or Central Fertilizer Quality Control Page 31 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined and Training institure, Faridabad or Regional Fertilizer Control Laboratories at Bombay, Madras or Kalyani (Calcutta) for analysis and the second give to the manufacturer or importer or dealer or the purchaser as the case may be The third sample shall constitute the reference sample and shall be sent by the inspector to his next higher authority for keeping in safe custody for production in court, if required."
5. Learned counsel for the petitioner has relied upon the judgment of this Court passed in Ms. Chittari Agricare Pvt. Ltd. V/s State of Rajasthan reported in 2015 (1) RCR (Criminal) 929: (AIROnline 2014 Raj 13). The relevant portion of the judgment reads as follows:
11. From a bare look at the contents of the complaint and the seizure memo, it is evident that the inspector whilst drawing the samples made a bald mention therein that the samples were drawn as per law.
12. When the law prescribes that a particular act has to be done in a particular manner, it goes as a corollary that the mode of performing such act should be reflected in the corresponding documents so as to instill confidence and sanctity in the proceedings and for maintaining fairness. This Court in the case of Chandra Prakash (supra) was dealing with an identical Page 32 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined situation. In the aforesaid case, this Court observed that a mere mention in the complaint and the inspection memo that the mandatory procedure as provided in the Schedule was followed would not suffice. It has to be mentioned and elaborated in the seizure memo that the detailed procedure of drawl of samples prescribed in the Schedule was followed. The precise steps taken by the Inspector to draw the samples have to be reproduced in the inspection note so as to reflect subjectively that the procedure as duly followed. When the issue regarding the mandatory provisions being followed is examined by the court, the prosecution would only have the inspection memo and the complaint to fall upon in order to establish compliance. In order to satisfy the court that the due procedure was followed, the procedure obviously has to be reflected in these documents."
6.2.2. Prima facie, the contention sounds very attractive, but considering the provisions of Schedule II Part A Rule 1(i), as under:
"1(e) The sample shall be kept in suitable, clean dry and air tight glass or screwed hard polythene bottle of about 400 gm capacity or in a thick gauged polythene Page 33 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined bag and this shall be put in a cloth bag which shall be sealed with the Inspector's seal. (ii) The sealed cloth bag containing the sample and Form P shall be kept in another cloth bag which shall also be sealed with the Inspector's seal. (iii) The identifiable details such as Sample number/Code number or any other details shall be put on the cloth bag containing sample and Form P which enables its identification;"
6.2.3. It is also relevant to refer the decision in the case of Gujarat Sulphate Chemicals versus D.C. Patel reported in 2010 SCC OnLine Guj 2330, more specifically, paragraphs 9, 11 & 12 are relevant, as under:
"9. I have also gone through the provisions of the Fertilizer Control Order, 1985. Section 30, reads as under :
SECTION - 30 - TIME LIMIT FOR ANALYSIS AND COMMUNICATION OF RESULT :
SECTION - 30(3) - "The authority to whom the analysis report is sent under sub-clause (2) shall communicate the result of the analysis to the dealer/manufacturer/ pool handling agency from whom the sample was drawn within 30 days from the date of Page 34 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined receipt of the analysis report of the Laboratory."
11.It has come in evidence that the complainant has taken the sample on 23.6.1989 and sent the said sample to the Laboratory on 26.6.1989. It appears that the Report was received on 3.7.1989, however, the accused were not informed about taking of sample nor about the report till 23.8.1989. The Rule provides that the Report must be sent to the accused within 30 days. Under sub-clause (3) of Section 30 of the Fertilizer Control Order, 1985, it is mentioned that "the authority to whom the analysis report is sent under sub-clause (2) shall communicate the result of the analysis to the dealer/ manufacturer/pool handling agency from whom the sample was drawn within 30 days from the date of receipt of the analysis report of the Laboratory." The word "shall" means it is a mandatory provision. I am, therefore, of the opinion that when the mandatory rule is not followed by the authority then the appellant has right to say that the prosecution has committed breach of mandatory provision and the benefit would go in favour of the accused. Therefore, in my opinion, the learned Judge has committed grave error in holding the appellant - accused for the charges levelled against them.
12.Further, the appellants were not informed about Page 35 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined taking of samples nor the same were taken in presence of the appellants. It is not brought on record that while taking the samples, proper procedure was followed."
6.2.4. It is also relevant to refer the decision in the case of Sham Lal versus State of Haryana reported in 2004 (1) EFR 243, more particularly, paragraph 8 is relevant, as under:
"8. From the perusal of the above, it would be clear that detailed procedure had been mentioned as to the manner in which the sample of fertilizer is to be drawn. In Clause 1 (e), it is mentioned that the sample should be kept in a suitable, clean dry and air tight glass or screwed hard polythene bottle of about 400 gms. capacity or in a thick gauged polythene bag and it should be put in a cloth bag and the same should be sealed. Clause 1(f) provides that each sample bag should be sealed air tight after filing and marked with details of sample, type and brand of fertilizer, name of order/manufacture and the name of inspector who has collected sample. In the present case, as referred to above, there is no material on the record to show as to in what manner sample was taken. When PW6 Hari Singh, Inspector appeared in the Page 36 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined witness box during examination-in-chief, he did not utter a single word about the manner in which the samples were drawn, except saying that the sample were sealed and one sealed container was given to the accused. It was for the first time during cross- examination when he de- posed that the samples of the fertilizers were put by him in three thick polythene bags, which he had taken with him. He, however, admitted that he did not prepare the detail of the sample in From J as appended to Fertilizer (Control) Order, 1985. PW6 Hari Singh, Inspector nowhere had stated that whether the samples were put by him in cloth bag and whether sample bag was sealed air tight after filling and marking with details of sample etc., as provided under Clause 1 (f) above. Furthermore, as referred to above, PW6 Hari Singh, Inspector had admitted himself that he did not prepare the details of the sample in Form J, appended to the Fertilizer (Control) Order, 1985. In Clause 1 (e) above, it is provided that after putting the sample in a cloth bag, it should be sealed with Inspector's seals after putting inside the detailed description as specified in Form J. Thus, this requirements was also not complied with by the Inspector while taking sample. In 1987 (2) C.L.R. 291 (supra), while considering the similar provision contained in Fertilizer (Control) Order, 1957, it was held by this Court that sample was required to Page 37 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined be taken in suitable, clear, dry and air tight glass or other suitable containers etc. and requirement of law was not complied with while taking sample and as such FIR against the accused in violation of the mandatory provisions of law deserved to be quashed. Similarly in 1988 EFR 425 (supra), it was held that where the sample was not taken in accordance with the Provisions of Law, the FIR against the accused was liable to be quashed. Similarly, in 1990 (1) EFR 206 (supra) while considering the Provisions of Fertilizer (Control) Order, 1985, it was found that no plausible explanation had been put forth on behalf of the State as to why the procedure adopted for taking the sample or, the manner in which the sample was actually taken does not find specific mention in the FIR. It was also found that this lacuna in the prosecution case coud not be filled by giving details at a later stage. It was found that since the aforesaid mandatory legal formalities were not observed or adhered to in the instant case, the FIR and consequent pro- ceedings taken there-under including framing of charge sheet against the accu- sed were liable to be quashed.
In view of the law laic down by this Court in the aforesaid authorities and in view of the fact that mandatory provisions with regard to taking sample had Page 38 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined not been complied with in this case, in my opinion, accused appellant is entitled to be acquitted.
In view of the above, the present appeal is allowed, the judgment and order dated 23./25.4.1988, passed by the Special Judge are set aside and the accused is acquitted of the charge framed against him.
Appeal allowed."
6.3. Furthermore, it transpires that Form "P" is required to be there. Forms "L" & "J" are already annexed on the record of the present petition.
6.4. Taking into account the arguments presented by both parties in this petition, it is not entirely clear whether the requirement is to draw a Panchnama or only to fill out and sign Forms "J," "P," and "L" under the provisions of the Act. Various High Court judgments have suggested that the procedure of drawing Panchnama should be carried out. However, due to the disputed questions of fact related to the compliance of required procedure and the necessity of such documents, it is more appropriate for these issues to be considered by Page 39 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined way of ful-fledged trial with opportunities for both parties to present their arguments. Furthermore, from reading of the complaint and the sequence of events, it appears that the sample obtained by the respondent authority from the petitioner's agent may not be in accordance with the rules and legal provisions. Therefore, although the provisions of Acts should be construed strictly, considering the various disputed factual issues involved in this case, these should be addressed by way of ful-fledged trial after leading evidence in the trial. In light of these considerations, it is not a fit case for this Court to scuttle the prosecution at this stage. Instead, it is more appropriate for the parties to proceed with the trial and present their contentions there. 6.5. Further, in the judgment of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, and more particularly para 80 is relevant, which is as under:
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in Page 40 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined passing an interim order of stay of investigation and/ or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;Page 41 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023
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iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and Page 42 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
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xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or Page 44 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim Page 45 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted"
within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
6.6. In light of the aforementioned discussions, I am of the opinion that all parties can raise their respective contentions during the trial. The trial court, after considering the relevant materials on record and applicable legal provisions, and after affording the parties an opportunity to present their respective arguments, shall consider the matter during the full-fledged trial. Therefore, in this case, it is not appropriate for the Court to exercise its powers under Section 482 of the Criminal Procedure Code, 1973, or under Article 226 of the Constitution of India, to scuttle the prosecution under the Fertilizer Control Order, 1985, and the Essential Commodities Act, 1955. These laws have a significant impact on the society, and individuals, who do not adhere to their provisions must be prosecuted, in Page 46 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023 NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined accordance with the law. The proceedings before the trial court can be decided as expeditiously as possible. 6.7 With the above observations, the present petition is dismissed, with no order as to costs.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 47 of 47 Downloaded on : Fri Oct 27 20:53:31 IST 2023