Karnataka High Court
Bhimanagouda S/O. Shivappa Hosamani vs The State Of Karnataka on 20 July, 2022
Author: V.Srishananda
Bench: V.Srishananda
-1-
CRL.P No. 101934 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 101934 OF 2022 (482-)
BETWEEN:
1. BHIMANAGOUDA S/O. SHIVAPPA HOSAMANI
AGE.44 YEARS,
OCC.PROPRIETOR OF M/S LAXMI,
AGRO CENTER, NAGANUR,
TQ.GOKAK,
R/O.HOSAMANI GALLI,
NAGANUR,
TQ.GOKAK
DIST.BELAGAVI-591224
2. SAINATH S/O RAMAKANT MORALWAR
AGE.34 YEARS,
OCC.PARTNER KRISHNAVENI
SEEDS AND FERTILIZERS,
OPP UNION BANK OF INDIA,
ANKALI ROAD, RAIBAG,
R/O.ANAND NILAYAM,
OPPOSITE KEB ROAD, RAYABAG,
TQ.RAYABAG,
DIST.BELGAUM-591317
...PETITIONERS
(BY SRI. AVINASH A UPLAONKAR.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY STATE PUBLIC PROSECUTOR
-2-
CRL.P No. 101934 of 2022
HIGH COURT OF KARANTAKA
DHARWAD BENCH 580011
2. THE GOVERNMENT OF KARNATAKA
DEPARTMENT OF AGRICULTURE
REP BY THE FERTILIZER INSPECTOR CUM ASSISTANT
DIRECTOR OF AGRICULTURE,
GOKAK
TQ.GOKAK
DIST.BELAGAVI-591307
...RESPONDENTS
(BY SRI. RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO EXERCISE INHERENT POWERS U/SEC. 482
CR.P.C., EXAMINE THE RECORDS AND QUASH THE TAKING
COGNIZANCE IN CC NO. 761/2017 DATED 05-09-2017, FOR
THE OFFENCE U/S. 3 AND 7 OF ESSENTIAL COMMODITIES
ACT 1955, PENDING BEFORE THE CIVIL JUDGE AND JMFC
COURT AT MUDALAGI, AGAINST THE PETITIONERS.
THIS PETITION COMING ON FOR ADMISSION THIS DAY
THE COURT MADE THE FOLLOWING.
ORDER
Petition under Section 482 of Cr.P.C., with the following prayer:
"Wherefore, it is prayed that the Hon'ble Court be pleased to exercise inherent powers under Section -3- CRL.P No. 101934 of 2022 482 Cr.P.C., examine the records and quash the taking cognizance in C.C.No.761/2017 dated 05.09.2017, for the offence under Section 3 and 7 of Essential Commodities Act 1955, pending before the Civil Judge and JMFC., Court at Mudalagi, against the petitioners/accused No.1 and 2 in the interest of justice and equity."
2. Heard Sri Avinash A Uplaonkar, learned counsel for the petitioners and Sri Ramesh Chigari, High Court Government Pleader for the respondents - State and perused the records.
3. Brief facts of the case are as under:
Agricultural Officer cum Fertilizer Inspector filed a complaint under Section 3 and 7 of Essential Commodities Act, 1955 read with Section 200 of Cr.P.C. In the complaint it is contended that petitioner No.1/accused No.1 Bhimanagouda is the Proprietor of M/s. Laxmi Agro Center, Naganur, Gokak Tq, petitioner No.2/accused No.2 is the partner Krishnaveri Seeds and Fertilizers, which are dealing with the fertilizers and holds the necessary licence. On -4- CRL.P No. 101934 of 2022 19.06.2015 at 10.30 a.m., the complainant visited the business premises of the petitioners No.1 and had a routine inspection and at that juncture, he drew sample of the Fertilizers called 10:26:26 NPK complex (the bag was in a sealed condition) from the stock of the fertilizers by following required procedure. Thereafter same was sent to laboratory at Belagavi. Report received from the laboratory revealed that the sample drawn by the Fertilizer Inspector was of substandard quality and therefore it was sent to the dealer.
A show cause notice as contemplated under the provisions of law was also issued.
4. Insofar as accused No.1 and 2 concerned, they are proprietor and partnership firms of M/s. Laxmi Agro Center, Naganur and Krishnaveni Seeds and Fertilizers.
5. The learned Magistrate on receipt of the complaint, perused the material on record and took cognizance of the offences punishable under Section 3 and 7 of the Essential Commodities Act 1955.
-5-CRL.P No. 101934 of 2022
6. The petitioners herein have challenged the order taking cognizance on several grounds. The main ground on which, the challenge to the cognizance order is petitioner are in no way connected with the alleged offence, inasmuch as, he is not authorized officers under the E.C. Act to be proceeded to the alleged violation.
7. In this regard, it is just and necessary to cull out Section 10 of the Essential Commodities Act, 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: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his -6- CRL.P No. 101934 of 2022 knowledge or that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.--For the purposes of this section,--
(a) "company'' means any body corporate, and includes a firm or other association of individuals; and
(b) "director'' in relation to a firm means a partner in the firm."
8. He further contended that the petitioners are not control officer and without arraigning the company/firm as a party, proceedings against the petitioners in impermissible in view of the language employed in Section 10 of the E.C. Act -7- CRL.P No. 101934 of 2022 and continuation of the proceedings against the petitioners would result in abuse of process of law and thus, sought for quashing of the complaint.
9. Per contra, the learned High Court Government Pleader contended that the petitioners are responsible for the sale of the substandard fertilizers and poor and gullible farmers are purchasing the fertilizers from the fertilizer shops and are unable to get the desired yield and therefore, prima facie reports obtained by the Inspector of the complainant would reveal that the petitioners are responsible for the alleged offences and therefore, sought for dismissal of the petition.
10. In view of the rival contentions urged by the parties, this Court perused the records.
11. Admittedly, from the complaint averments, it is seen that Inspector of the complainant visited the firm/company of petitioner No.1 M/s. Laxmi Agro Center and had a routine inspection and at that juncture, he found that the said firm was selling substandard fertilizer. The samples -8- CRL.P No. 101934 of 2022 were drawn by conducting mahazars and samples were sent to the laboratory. The laboratory reports reveal that the fertilizers sized by the Inspector of the complainant were of substandard and therefore, the complainant as per the provisions of the E. C. Act filed a private complaint before the jurisdictional Magistrate.
12. This Court perused the complaint meticulously. On such perusal of the complaint averments, this Court is unable to comprehend as to how these petitioners are responsible for the alleged violation, sale, distribution and supply of the substandard fertilizer. Further, as per Section 10 of the E. C. Act and Control Order, 1985, the company/firm, which manufactures the substandard fertilizer is to be arraigned as an accused to proceed with the case. Along with the company/firm, the director, manager, secretary or other officer of the company/firm, who was deemed to be guilty of the offence is to be arraigned as an accused..
13. According to the petitioners, they are not manager, secretary, director or other officer, who is responsible for the manufacture, sale, distribution and supply of the -9- CRL.P No. 101934 of 2022 substandard fertilizer and in the absence of the company/firm being a party to the complaints, taking cognizance by the learned Magistrate against the petitioners herein cannot be countenanced in iaw. For non compliance of requirement of Section 10 of the E. C. Act. This Court is satisfied that there is no material on record to show that the petitioners can be proceeded in the impugned proceedings, more so, in the absence of company/firm being not made as a party. Therefore, a case is made out for quashing the further proceeding against the petitioners.
14. Having said thus, it has come to the notice of this Court that either purposefully or due to inadvertence, the department or the officer, who is in-charge of the concerned department or the office of the Agriculture Fertilizer Inspector are not making the company/firm as a party in a matter of this nature, which has resulted in miscarriage of justice.
15. It is submitted by the learned counsel for the petitioners that many such complaints were quashed by this Court noting the deficiencies in the complaint and despite the
- 10 -
CRL.P No. 101934 of 2022 same, similar complaints are being filed by the office of the Agriculture Fertilizer Inspector.
16. Suffice to say that such an attitude on the part of the Office of the Agriculture Fertilizer Inspector has resulted in real culprits escaping away from the clutches of law and the provisions or the E. C. Act and Control Order, 1985 has practically being rendered as useless resulting in mockery of justice.
17. Therefore, it is necessary to direct the Office of the Agriculture and Fertilizer Inspector to rectify the mistakes noted by this Court in this case and also in other cases on earlier occasions and file suitable complaints.
18. The liberty is also reserved for the complainant to file appropriate complaints before the appropriate forum in accordance with law.
19. Needless to say that if such complaints are filed, the defence available to the accused is also left open. With these observations, pass the following:
- 11 -
CRL.P No. 101934 of 2022 ORDER The petition is allowed.
The criminal proceedings pending against the petitioners No.1 and 2 in C.C.No.761/2017 dated 05.09.2017 on the file of Civil Judge and JMFC., Court at Mudalagi, is hereby quashed.
SD/-
JUDGE MR