Madhya Pradesh High Court
Gujarat State Fertilizer And Chemical ... vs The State Of Madhya Pradesh on 1 March, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MCRC 11357 of 2021
Gujarat State Fertilizer and Chemical Limited Company and Anr.
Vs. State of MP and Anr.
Gwalior, Dated :01/03/2021
Shri Sanjay Kumar Bahirani, Counsel for the applicants.
Smt. Uma Kushwah, Panel Lawyer for the respondent No.1/ State.
This application under Section 482 of CrPC has been filed seeking quashment of the FIR in Crime No.454/2019 registered at Police Station Joura, District Morena for offence under Section 3/7 of Essential Commodities Act.
It is the case of the applicants that the applicant no.2 is the retired Senior Manager of Gujarat State Fertilizer and Chemical Limited which is registered under the Companies Act, whereas the applicant no.1 is the Company itself. It is the case of the applicants that the applicant No.1/Company imports various kinds of fertilizers for supply of the same to the societies and other institutions. The licence in this regard under Clause 8(3) has also been obtained. It is submitted that before selling the fertilizers to the said institutions and societies, quality test is conducted in the laboratory and thereafter, the fertilizers are supplied after following the entire procedure required under the Fertilizer Control Order, 1985 [ in short '' FCO'']. It is further mentioned that the applicant No.1/Company is running its manufacturing units.
According to the applicants, on 16/07/2018, the Fertilizer Inspector inspected the go-down of Cooperative Society Maryadit, Joura, District 2 THE HIGH COURT OF MADHYA PRADESH MCRC 11357 of 2021 Gujarat State Fertilizer and Chemical Limited Company and Anr.
Vs. State of MP and Anr.
Morena from where the sample of DAP fertilizers were collected and as per the report, the fertilizer was found to be of un-substandard quality in the light of specification given in the Act. It is further submitted that the report of Analysis was prepared on 12 th July, 2018 but the same was supplied to the applicants on 03/10/2018, whereas it should have been supplied within a period of fifteen days. The applicant No.1/Company also applied for reanalysis in the Central Laboratory, Faridabad. However, the prayer of the applicants for retesting the sample was neither considered nor sample of the Company was sent to the laboratory for referee analysis under sub-section (2) of Sec.29(b) and Section 32(a) of FCO and in the meanwhile, FIR was registered. After registration of the FIR, the applicants again requested for retesting the sample which has been accepted and now, the sample was called on 19/09/2019 for testing the same. It is submitted that as per the provisions of Section 30(2)(3) of FCO, the sample should be tested within thirty days from the date of receipt of sample in the Laboratory and the result of the said sample should be communicated within fifteen days from the date of receiving of report but in the present case, neither the test result has been declared nor any kind of report has been communicated to the applicants. On 02/12/2020, the applicants again requested the Joint Director to grant permission to get analysis the referee sample but no action has been 3 THE HIGH COURT OF MADHYA PRADESH MCRC 11357 of 2021 Gujarat State Fertilizer and Chemical Limited Company and Anr.
Vs. State of MP and Anr.
taken.
It is also the case of the applicants that the applicant No.1/Company has applied for retesting the sample but the report has not been received. It is submitted that Kamlesh Prataprai Pancholi was responsible for conduct of business of the Company and the sample was also taken in his presence but he has not been made an accused and, therefore, in the light of the judgment passed by Punjab and Haryana High Court in the case of R.G. Shrivastava vs. State of Punjab, reported in 2003 FAJ PN 389, the prosecution cannot lead evidence contrary to the complaint.
It is submitted that the name of the applicant No.2 has neither been mentioned in the FIR nor he has been added as an accused in the FIR separately, but the police is trying to arrest him.
Heard the learned Counsel for the applicants. So far as the contention of the applicants with regard to non- impleadment of Kamlesh Prataprai Pancholi is concerned, this application under Section 482 of CrPC has been filed on the affidavit of Kamlesh Prataprai Pancholi himself. It is alleged that Kamlesh Prataprai Pancholi is the retired employee of Gujarat State Fertilizer and Chemical Limited Company/ applicant No.1, then it is clear that Kamlesh Prataprai Pancholi has no authority whatsoever to file this application on behalf of 4 THE HIGH COURT OF MADHYA PRADESH MCRC 11357 of 2021 Gujarat State Fertilizer and Chemical Limited Company and Anr.
Vs. State of MP and Anr.
applicant No.1 or applicant No.2. Even Vaklatnama has been executed by Kamlesh Prataprai Pancholi.
The applicants have also not filed any resolution of Board of Directors of applicant No.1/Company thereby authorizing Kamlesh Prataprai Pancholi to file this application under Section 482 of CrPC on behalf of applicant No.1/ Company. Further, no document has been filed along with this application showing that the applicant no.2 has authorized Kamlesh Prataprai Pancholi to file this application under Section 482 of CrPC on his behalf.
Thus, it is clear that the present application has been filed by an unauthorized person. Under these circumstances, in case if this application is dismissed, then the applicants may disown the filing of this application by saying that they had never authorized Kamlesh Pratap Rai Pancholi.
Under these circumstances, this application is dismissed as has been under the Affidavit and Vaklatnama of an ''unauthorized person''.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2021.03.03 14:45:25 +05'30' VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00'