Karnataka High Court
Sri. Kantharaju vs The State Of Karnataka on 16 June, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.9122 OF 2021
BETWEEN
SRI. KANTHARAJU
S/O LATE JAYARAMAPPA
AGED ABOUT 67 YEARS,
OWNER OF J.K. ORGANICS
PLOT NO.16-A,
SOMANAHALLI VILLAGE,
MADDUR TALUK - 571 605
MANDYA DISTRICT.
... PETITIONER
(BY SRI DEEPAK B R, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY MADDUR P.S.
MALAVALLI SUB DIVISION
MADDUR - 571 605
MANDYA DISTRICT
KARNATAKA
2. THE ASSISTANT DIRECTOR AGRICULTURE
AND FERTILISER INSPECTOR
MR. N. SRINATH
DEPARTMENT OF AGRICULTURE,
MADDUR - 571 605.
... RESPONDENTS
(BY SRI S. VISHWA MURTHY, HCGP FOR R1 AND R2)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE FIR REGISTERED IN
CR.NO.270/2021 DATED 24.09.2021 REGISTERED BEFORE THE
RESPONDENT POLICE AGAINST THE PETITIONER FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 417, 420 OF IPC
AND SECTIONS 3 AND 7 OF ESSENTIAL COMMODITIES ACT
WHICH IS PENDING BEFORE THE II ADDITIONAL CIVIL JUDGE
(JR. DN.) AND J.M.F.C., MADDUR, MANDYA DISTRICT AND
FURTHER REQUEST THIS HONOURABLE COURT FOR CALLING
OF RECORDS PERTAINING CASE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 9.6.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This petition filed by the petitioner/accused under Section 482 of Cr.P.C for quashing the FIR in Crime No.270/2021 registered by the Maddur police station for the offence punishable under Sections 3 and 7 of Essential Commodities Act (herein after referred as EC Act) and Sections 417 and 420 of IPC.
2. Heard the arguments of learned counsel for petitioner and learned HCGP for the State.
3. The case of the prosecution is that on the complaint of the Assistant Director of Agriculture and Fertilizer Inspector one Sreenath N., filed complaint 3 alleging that on 24.9.2021 around 6.45 pm when the complainant visited the factory belonging to the petitioner by name JK Organics plot No.16/A, wherein the petitioner said to have stored and stocked inorganic mixture fertilizers and illegal storage. Hence, the team of the complainant visited the godown at 10.30 a.m. and inspected and found illegal storage of 2100 bags of 15:15:15 complex fertilizer and 775 bags of 16:16:16 complex fertilizer, 200 bags Zinc Sulfate, 10 bags of Ferrous Sulfate, about 40 bags of Borax Dekha hydrate and hence he lodged the complaint to the police and FIR was registered. Later the petitioner obtained the anticipatory bail and challenged the FIR.
4. Learned counsel for the petitioner has contended that the respondent registered false case against the petitioner by making false allegation, the petitioner stored the chemical fertilizers for mixing with the organic manure. The respondent took the samples from the products but those products were not sold in the market. The 4 laboratory reports are not received in order to show there was adulteration for mixing the chemical with the organic manure but prior to verification complaint has been filed and registered which is not correct. The report has been received, where there is no adulteration and the samples were found in accordance with the specification and standard. Except two items, Zinc Sulfate and Ferrous Sulfate those two items were purchased by him for self use in his land. Therefore, the question of registering the case stating that the petitioner attempted to mix the chemical with organic fertilizers, is not correct. The respondent would have given an opportunity by issuing show cause notice to the petitioner as to why chemical fertilizers were stored in the godown and that the petitioner could have given explanation. However, the same was not done and directly registered the FIR which is not correct.
5. The learned counsel further contended that the team of Agriculture Department officials visited with 5 administrative as well as punitive powers under the Act called, "The Fertilizer [Inorganic, Organic or Mixed (Control)] Order 1985, (hereinafter referred as F.C.O) which was amended on 4.7.2020. The Department Officers have power under Section 28 and Chapter VII of the said order, but the Department officials miserably failed to discharge their duties under the fertilizer control order and directly initiated criminal proceedings for IPC cases and the cases connected with the EC Act, is not correct.
6. Learned counsel further contended the miserable failure of the Department not discharging their vested powers, that itself is a good ground for quashing the FIR. Further contended that the mahazar drawn by the officials in which incidentally there is no reporting of the mixing of the chemical fertilizer to any organic manure. Mere storage of the chemical fertilizer in godown should not make any conclusion that it was stored for mixing with the organic manure. The stock of chemicals found in the 6 godown was for his community use and the Department officials though obtained samples but without receiving the analysis report hurriedly lodged the complaint which is not correct. Hence, prayed for quashing the FIR.
7. Learned HCGP objected the petition and contended that the respondent No.2, officials visited the godown as well as the factory of the petitioner where they found stored the organic manure. Also, in the godown the petitioner had also stored chemicals in order to mix it with the organic fertilizer. Therefore, there is clear case of committing the offence. Hence prayed for dismissing the petition.
8. Having heard the arguments and perused the records and on perusal of the same which reveals the respondent No.2 said to have visited the factory of the petitioner as well as the godown. He is said to have stored organic fertilizers and some chemicals. They also visited the godown and found there were organic manures which were stored apart from some chemicals like Zinc Sulfate 7 and Ferrous Sulfate, then they drawn the samples and sent the same to the chemical analysis. The raid was conducted by the respondent on 24.9.2021 and on the same day police complaint has been filed, stating that the petitioner with the intention to cheat the public had mixed the chemicals with the organic fertilizers. Subsequently, the samples were sent to the lab. The report has been received by them only on 15.11.2021. It is an admitted fact, the petitioner was the proprietor of the JK Organics and he was the license holder which was obtained from the Government of Karnataka, Department of Agriculture and the license is valid from 02.09.2021 till 01.09.2026 and the raid was conducted on 24.9.2021. The petitioner is permitted to sell the organic fertilizers as prescribed in the license.
9. As per the report, dated 15.11.2021, the samples sent in respect of 15 items of fertilizer in Sl.No.1 to 3 and 6 to 15 are found correct with the specifications and standard quality. Absolutely there is no mixing of any 8 chemicals like Zinc sulfate of Ferrous Sulfate, so all the stored fertilizers were organic fertilizers without mixing in any of the bags stored in the store in either the factory or godown. Admittedly, the petitioner was found some bags of Zinc sulfate and Ferrous Sulfate that was not in the standard and it was sub standard. It is an admitted fact, the petitioner is not license holder for selling the Zinc sulfate or Ferrous Sulfate and it is claimed by the petitioner that it was purchased by him during the lock down and he was unable to use for his lands and it was stored in the godown. Therefore, it appears the respondent No.2 presumed that this chemicals were kept only for purpose of mixing with organic fertilizers.
10. Learned counsel for petitioner has contended as per Section 28 of Control Order, the complainant could have filed the complaint after receipt of the analysis report. In this regard, it is necessary to refer the Clause 28 of the Fertilizer Control Order as under:- 9
28. Powers of Inspectors (1) An inspector may, with a view to securing compliance with this Order:-
(a) require any manufacturer, importer, pool handling agency, wholesale dealer or retail dealer to give any information in his possession with respect to the manufacture, storage and disposal of any fertilizer manufactured or, in any manner handled by him
(b) draw samples of any fertiliser in accordance with the procedure of drawal of samples laid down in Schedule II. Provided that the inspector shall prepare the sampling details in duplicate In Form J, and hand over one copy of the same to the dealer or his representative from whom the sample has been drawn;
(ba) draw samples of any biofertilisers in accordance with the procedure of drawl of samples laid down in schedule III.
(bb) draw samples of any organic fertilisers in accordance with the procedure of drawl of samples laid down in schedule IV.
(c) enter upon and search any premises where any fertiliser is manufactured/ Imported or stored or exhibited for sale, if he has reason to believe that 10 any fertiliser has been or is being manufactured/ imported, sold, offered for sale, stored, exhibited for sale or distributed contrary to the provisions of this Order;
(d) seize or detain any fertiliser in respect of which he has reason to believe that a contravention of this Order has been or is being or is [attempted] to be committed;
(e) seize any books of accounts or documents relating to manufacture, storage or sale of fertilisers, etc. in respect of which he has reason to believe that any contravention of this Order has been or is being or is about to be committed;
Provided that the Inspector shall give a receipt for such fertilisers or books of accounts or documents so seized to the person from whom the same have been seized;
Provided further that the books of accounts or documents so seized shall be returned to the person from whom they were seized after copies thereof or extracts thereform as certified by such person, have been taken.
(2) Subject to the proviso to paragraphs (d) and
(e) of sub-clause (1), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to 11 search and seizure shall, so far as may be, apply to searches and seizures under this clause. Provided also that the inspector shall give the stop sale notice in writing to the person whose stocks have been detained and initiate appropriate action as per the provisions of this order within a period of twenty one days. If no action has been initiated by the inspector within the said period of twenty one days from the date of issue of the said notice, the notice of stop sale shall be deemed to have been revoked.
(3) Where any fertiliser is seized by an inspector under this clause, he shall forthwith report the fact of such seizure to the collector whereupon the provisions of sections 6A, 6B, 6C, 6D and 6E of the Act, shall apply to the custody, disposal and confiscation of such fertilisers.
(4)Every person, if so required by an inspector, shall be bound to afford all necessary facilities to him for the purpose of enabling him to exercise his powers under sub-clause (1).
As per Section 29B, analysis report shall obtain from the laboratory within 30 days. Thereafter, the complainant could have issued Show Cause notice for calling into 12 explain why the action shall not be taken against him. But here, in this case the respondent No.2 though seized the materials or fertilizers and drawn the sample and after obtaining the report, which is clear there is no adulteration of any chemical in the fertilizer bags. The analysis report was very clear, none of the organic manures were mixed or adulterated with any of the chemicals. Therefore, when there is no chemical mixed with the organic fertilizers which was kept in the godown as well as factory, the question of filing the complaint against the petitioner does not arise. The respondent cleverly filed a complaint to the police under the Essential Commodities Act and Section 417 and 420 of IPC. Absolutely there is no ingredient to attract any of the provisions for having committed any of the offence by the petitioner. The respondent hurriedly filed the complaint without waiting for the analysis report and without issuing Show Cause notice and without getting explanation from the complaint. Later, after coming to know there is no adulteration in the organic manure, all the samples drawn by the respondent No.2 was found 13 standard as per the specifications. The respondent No.2 could have filed the complaint after obtaining result of the analysis and if he found any adulteration of chemicals in the organic manure. Absolutely there is no such adulteration found in the samples. Therefore, registering the FIR conducting the investigation against the petitioner who is a license holder for manufacturing and selling the organic manure, is abuse of process of law. The counsel for petitioner also submitted the chemicals were purchased by him for community use, for his lands and due to the lockdown during pandemic he has kept the same in the godown, which is not meant for sale. Therefore, merely keeping some chemical bags, that itself not a ground to presume that it was kept for adulteration or mixing with the organic manure.
11. The FIR has been registered against the petitioner, even without ascertaining who is in-charge of the factory at the time of search and seizure. As per the letter of the petitioner to the Licensing Authority, petitioner 14 was not found in the factory and he was not responsible officer. Such being the case, registering the FIR against petitioner is nothing but abuse of process of law and hence FIR is liable to be quashed.
Accordingly, I proceed to pass the following; This Criminal petition is allowed.
Consequently, the FIR registered against petitioner rby Maddur police station in Crime No.270/2021 dated 24.09.2021, is hereby quashed.
Sd/-
JUDGE AKV