Madhya Pradesh High Court
Pankaj Gupta And Anr. vs The State Of Madhya Pradesh And Anr. on 1 October, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2024:MPHC-IND:28756
1 MCRC-10090-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
MISC. CRIMINAL CASE No. 10090 of 2011
PANKAJ GUPTA AND ANR. AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND ANR. AND OTHERS
Appearance:
Shri Sanjay Shukla, learned counsel for the petitioners.
Shri Santosh Singh Thakur, GA for the respondent/State.
Reserved on : : 30/09/2024
Pronounced on : 01/10/2024
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ORDER
1. Heard on IA nos.12868/2024 and 15609/2024, which are the applications for taking additional documents on record.
2. The proposed documents may be relevant for proper adjudication of the matter, therefore, both the applications are allowed and the proposed documents are taken on record.
3. This petition under section 482 of Cr.P.C is filed for quashing FIR registered at Crime no. 214/2011 at P S. - Maksi, District- Shajapur for the offence punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 and Sections 9 and 14 of the Fertilizer Control Order, 1985 and section 420 of 1.P.C , with all consequential proceedings thereto.
4. The exposition of facts, giving rise to present petition, is as under:
i) As per the case of prosecution, Fertilizer Inspector of Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19 NEUTRAL CITATION NO. 2024:MPHC-IND:28756 2 MCRC-10090-2011 Division- Shajapur received information that misbranded and mixed fertilizer is being packaged without licence at newly constructed godown near village-Gadroli, therefore, Mr. T.R. Mandloi, Fertilizer Inspector conducted inspection of the godown of petitioner Pankaj Gupta S/o Ratanlal Gupta. Various quantities of urea of Rastriya Chemicals and Fertilizers Ltd, Mumbai and Agrasen Trading Company, Sihor, Phosphate of Ratnam Brand manufactured by Balaji Phosphate Pvt. Ltd, Dewas, 4000 empty gunny bags of Devdatt Brand for packaging Gypsum, 15 tonnes of fertilizer materials, 100 empty gunny bags of Jaikishan brand, weighing machine, mixer machine were found in the godown. The samples of fertilizer were taken out. It was found that petitioners Pankaj S/o Ratanlal and Ratanlal S/o Mangial were mixing and misbranding and packaging fertilizer without valid licence in violation of Sections 3 and 7 of the Essential Commodities Act, 1955 and Section 9 and 14 of the Fertilizer Control Order, 1985.
Accordingly, entire materials were seized. The Fertilizer Inspector and Senior Agriculture Development Officer, Shajapur submitted a written complaint to SHO, P.S - Maksi, District - Shajapur. The PS-Maksi registered FIR at Crime no. 214/2011 against petitioner Pankaj Gupta and his father Ratanlal Gupta for the offence punishable under Sections 3 and 7 of the Essential Commodities Act 1955 and Sections 9 and 14 of the Fertilizer Control Order, 1985 as also under section 420 of IPC.
Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19NEUTRAL CITATION NO. 2024:MPHC-IND:28756 3 MCRC-10090-2011
ii) The statements of witnesses were recorded and relevant information was requisitioned with regard to authority to store packages and sale of the fertilizer. It was found that the accused was not authorized to store, package and sell the fertilizer at the premises near village - Gadroli. On completion of investigation, final report was submitted. The trial is underway.
5. Feeling aggrieved by the registration of FIR and filing of charge- sheet, this petition is filed for quashment of FIR and consequential proceeding thereof, on following grounds :-
i) Father of the petitioner was having valid licence for trading and storage of the fertilizer.
ii) The respondents have violated the provisions of Fertilizer Control Order by directly prejudging the issue and lodging of the FIR in disregard to the mandate of law
iii) One more person was arrested from the site of packaging and misbranding of the fertilizers.
iv) The pendency of criminal proceedings against the petitioner is a clear abuse of process of law and has resulted in serious miscarriage of justice to the petitioner as no material circumstance is available to connect the petitioner with the alleged offence.
v) The petitioner has not contravened order 9 and 14 of the Fertilizer Control Order, 1985 as the petitioner has valid licence and registration for sale and packaging of the materials.
vi) No offence punishable under section 420 of IPC is made out as there is no complainant alleging cheating.
vii) The petitioner has informed in advance that he has closed the business of packaging of Phospo Gypsum and the material has been stored at Maksi godown.Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19
NEUTRAL CITATION NO. 2024:MPHC-IND:28756 4 MCRC-10090-2011
viii) The petitioner has no mens-rea for commission of alleged offence.
ix) The petitioner in no way has contravened the Section 3 and other provision of the Essential Commodities Act 1955.
6. Learned counsel for the petitioners submits that petitioner no. 2 Ratanlal has expired, therefore, he is prosecuting this petition only on behalf of petitioner no. 1 Pankaj Gupta. Learned counsel referring to letter (Annexure-P/4) submits that the petitioner has duly informed Dy. Director that he has closed the business with regard to Phospo Gypsum / Calcium Sulphate at Indore and transferred the remaining materials and machinery to his godown at Maksi. Learned counsel contends that the petitioner was not present at the time of seizure of relevant materials. The petitioner is implicated merely on suspicion. Father of the petitioner had valid licence for sale of the fertilizers. No evidence implicating the petitioner with alleged offence was collected during investigation, therefore, continuation of criminal proceeding against the petitioner would be abuse of process of Court causing serious prejudice to the petitioner Pankaj. Therefore, the impugned FIR and the consequential proceedings deserve to be quashed.
7. Per-contra, learned counsel for the respondent/State referring to initial complaint and the panchanama prepared by the Fertilizer Inspector of Block- Shajapur submits that various quantity of fertilizers, gunny bags and machinery equipment have been found in the godown of petitioner, therefore, his involvement in alleged offence is clearly made out from the evidence collected during investigation. Further, samples of the fertilizers were forwarded for chemical analysis. The report clearly shows misbranding Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19 NEUTRAL CITATION NO. 2024:MPHC-IND:28756 5 MCRC-10090-2011 and mixing of fertilizers, therefore, on completion of investigation, final report was submitted. No case is made out for quashment of FIR.
8. Heard both the parties and perused the record.
9. The Supreme Court in case of State of Haryana vs. Ch. Bhajan Lal, reported in AIR 1992 SC 604 after an elaborate consideration of the matter and after referring to its various earlier decisions, has observed in para 108 as under:-
''108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19 NEUTRAL CITATION NO. 2024:MPHC-IND:28756 6 MCRC-10090-2011 absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously Instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.''
10. In the case of Neeharika Infrastructure Vs State of Maharashtra reported in 2021 SCC Online SC 315 a Three Judge Bench of the Supreme Court reiterated the principles laid down in the case of Bhajanlal (supra) and held that while the Courts ought to be cautious in exercising powers under Section 482, they do have the power to quash the proceedings. The test is whether or not, the allegations in the FIR disclose the commission of a cognizable offence. The Court should not enter into merits of the allegations or trench upon the power of Investigating Agency to investigate into the allegations involving commission of a cognizable offence.
11. In the case of State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522 , a two-Judge Bench of the Supreme Court elaborated on the types of materials the High Court can assess to quash an FIR. The Apex Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence.
Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:-
Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19NEUTRAL CITATION NO. 2024:MPHC-IND:28756 7 MCRC-10090-2011 "5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....." (Emphasis supplied) Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19 NEUTRAL CITATION NO. 2024:MPHC-IND:28756 8 MCRC-10090-2011
12. In the case of Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330, Hon'ble Supreme Court held as under :
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1.Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19 NEUTRAL CITATION NO. 2024:MPHC-IND:28756 9 MCRC-10090-2011 and impeccable quality?
30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4.Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
In light of aforementioned proposition of law, the fact situation of present case is examined.
13. The FIR and the investigation reveals that various quantity of fertilizer - Urea, raw fertilizer material, empty gunny bags of various fertilizer brands and equipment for packaging and mixing were recovered and seized from newly constructed godown of petitioner - Pankaj S/o Ratanlal Gupta. It was further found that the fertilizer and raw material were transported into and from the godown. The petitioner or his father had no permission to stock/store, mix and package the fertilizer in the godown at village -Gadroli. .
14. The plea taken by the petitioner relates to his defence, which cannot be considered, on its merits, at this stage. The documents submitted Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19 NEUTRAL CITATION NO. 2024:MPHC-IND:28756 10 MCRC-10090-2011 alongwith the petition are not admitted by the prosecution. The document at Annexure A-4 with regard to shifting of raw material does not bear date, much less, an acknowledgement by the concerned authority. Therefore, in view of the judgment of Supreme Court in the case of Rajiv Thapar (supra), it cannot be taken into consideration for quashment of FIR and consequential proceedings.
15. This Court while considering application for quashing of FIR and consequential proceedings can neither examine the merits of evidence collected during investigation, nor indulge into scrutiny of veracity and credibility of the allegation on consideration of extraneous factors and circumstances. The material on case dairy, prima-facie, reveals commission of alleged offence. The allegations cannot be said to be inherently improbable or manifestly attended with malafide. The inspection was conducted by the Fertilizer Inspector in furtherance of his official duty, therefore, the proceedings cannot be said to be maliciously instituted with an ulterior motive of wracking vangeance on the accused. At this juncture, it cannot be said that possibility of conviction is remote and bleak and continuation of criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him.
16. In view of the aforestated discussion, no case is made out for quashment of FIR and consequential proceedings in exercise of inherent jurisdiction in view law laid down in the case of Bhajanlal and Neeharika (supra).
17. Consequently, the petition under Section 482 of CrPC is Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19 NEUTRAL CITATION NO. 2024:MPHC-IND:28756 11 MCRC-10090-2011 dismissed.
CC as per rules.
(SANJEEV S KALGAONKAR) JUDGE amol Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 01-10-2024 18:57:19