Karnataka High Court
G. Gopalreddy vs The State Of Karnataka And Anr on 4 July, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 04TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION NO.200706/2022
BETWEEN:
G. GOPALREDDY S/O G. SHIVAREDDY
PARTNER IN M/S MANJU AGRO AGENCIES
GUNJ ROAD, RAICHUR
AGE: 38 YEARS, OCC: BUSINESS
R/O: H.NO.10-7-55, MAKTHALPET
RAICHUR, DIST: RAICHUR-585215.
... PETITIONER
(BY SRI: AVINASH A.UPLOANKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY
ADDL. SPP HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585107.
2. THE GOVERNMENT OF KARNATAKA
DEPARTMENT OF AGRICULTURE
REPRESENTED BY THE
ASSISTANT DIRECTOR OF AGRICULTURE
CUM FERTILIZER INSPECTOR, RAICHUR
DIST: RAICHUR-585220.
... RESPONDENTS
(BY SMT: MAYA T.R., HCGP)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO EXERCISE INHERENT
POWERS UNDER SECTION 482 CR.P.C. TO EXAMINE THE
RECORDS AND TO QUASH TAKING COGNIZANCE DATED
14.06.2021 IN CC NO.3900/2021 (PRIVATE COMPLAINT
NO.60/2021 PUNISHABLE UNDER SECTION 3(7)
ESSENTIAL COMMODITIES ACT, PENDING BEFORE THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT RAICHUR,
AGAINST THE PETITIONER IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS CRIMINAL PETITION COMING ON FOR
FURTHER HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The petitioner is before this Court seeking to quash the order taking cognizance of offence dated 14.06.2021 passed in CC No.3900 of 2021 (Private Complaint No.60 of 2021) for the offence punishable under Sections 3 and 7 of the Essential Commodities Act (for short 'EC Act'), which is pending before the learned Principal Senior Civil Judge and CJM, Raichur.
2. Brief facts of the case are that, the Assistant Director of Agriculture cum Fertilizer Inspector, Raichur, filed a private complaint in PCR No.60 of 2021 against accused Nos.1 and 2 alleging commission of the offences 3 punishable under Sections 3 and 7 of the EC Act and also for violation of Clause 28(1)(b) of Fertilizer Control Order, 1985. It is alleged by the complainant that he is working as Fertilizer Controller and accused No.1 is involved in manufacturing of the fertilizers and accused No.2 is the Distributor of the said fertilizers. The complainant visited the premises of accused No.2 on 21.07.2014, where the fertilizers manufactured by accused No.1 were stored. He drew the samples of DAP fertilizer in accordance with Clause 28(1)(b) of Fertilizer Control Order, 1985 in three stages. One of the sample was provided to accused No.2 and the second one was sent to Deputy Director of Agriculture for analysis and for a report. The third sample was kept in the office of the Assistant Director of Agriculture.
3. The Deputy Director of Agriculture and Fertilizer Analyst subjected the sample for analysis and submitted his report on 30.07.2014 stating that the sample is of sub standard quantity and not in accordance with the specification as provided under the Act. 4 Therefore, it is stated that accused No.1 being the Manufacturer was manufacturing the sub-standard quantity of DAP and accused No.2 being the Distributor, was distributing the sub-standard fertilizers and thereby both the accused have committed the offences as stated above.
4. Heard Sri.Avinash A Uploankar, learned counsel for the petitioner and Smt.T R Maya, learned High Court Government Pleader for the respondent-State. Perused the records.
5. Learned counsel for the petitioner submitted that the petitioner has raised several grounds in the criminal petition seeking to quash the criminal proceedings against him. However, learned counsel restricted his claim only on two grounds i.e., non application of the procedure as contemplated under Section 202 of Cr.P.C. i.e., postponement of process when the accused who is residing at a place beyond the area, in which, the Magistrate exercise his jurisdiction and the second one is that the 5 learned Magistrate has not passed a speaking order for taking cognizance of the offences. Restricting his claim only on these grounds, learned counsel prays for setting aside the criminal proceedings initiated against the petitioner.
6. Per contra, learned High Court Government Pleader opposing the petition submitted that the petitioner is the resident within the jurisdiction of the learned Magistrate and therefore, there is no illegality in the procedure followed in taking cognizance. Of course, learned High Court Government Pleader could not justify the impugned order as a speaking order and prays to pass appropriate orders.
7. In view of the rival contentions urged by learned counsel for the parties, the point that would arise for my consideration is:
"Whether the petitioner has made out any grounds for quashing of taking cognizance against him?"6
My answer to the above point is in 'Affirmative' for the following:
REASONS
8. Admittedly, the petitioner is the Distributor of the fertilizers which is scheduled item referred to in the Essential Commodities Act, as per Section 2(a) of the EC Act. Section 3 of the EC Act refers to the power to control production and supply, distribution etc., of essential commodities. In the present case, it is the specific contention of the prosecution that accused No.1 was the Manufacturer of the fertilizers which is of substandard quality. Accused No.2 is the Distributor of such substandard quantity fertilizer. Therefore, Section 3 of the EC Act is prima facie attracted.
9. Now coming to the contention taken by the learned counsel for the petitioner with regard to non following of procedure as contemplated under Section 202 of Cr.P.C., is concerned, it is the mandate of law that on receipt of the complaint for the offence, where the accused resides at a place beyond the area where learned 7 Magistrate exercise his jurisdiction, he shall postpone issuance of process against the accused and either enquire into the case himself or direct investigation to be made by the Police Officer or by any other person as he thinks fit for the purpose to decide whether there are sufficient grounds for proceeding further.
10. The second contention raised by the learned counsel for the petitioner is that the learned Magistrate has mechanically proceeded to take cognizance of the offence without there being a speaking order.
11. I have gone through the impugned order dated 14.06.2021 which reads as under:
"That as the complainant is filed by Govt Servants recording the S/st has been dispensed with that the office is to register the case in Register No.III and issue Process to the accused.
Call on 02.08.2021."
12. A bare reading of this order taking cognizance of the offence discloses that it is a mechanical order 8 passed without application of mind. There is no reference to the averment made in the complaint nor there is any reason for bypassing the procedure under Section 202 of Cr.P.C. The order does not refer to the satisfaction of the Magistrate about prima facie material which are available regarding commission of offence either under Section 3 or Section 7 of EC Act to take cognizance of the same.
13. Under such circumstances, learned counsel for the petitioner is right in submitting that the impugned order suffers from illegality. Therefore, the same is liable to be set aside. However, while setting aside the impugned order, an opportunity has to be given for the respondent to once again approach the Trial Court to enable it to take cognizance of the offence, after following the procedure as contemplated under Cr.P.C. in light of the discussions held above.
14. Hence, I answer the above point in Affirmative and proceed to pass the following:
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ORDER The petition is allowed.
The impugned order dated 14.06.2021 taking cognizance of the offence against the petitioner is set aside.
The Trial Court is directed to consider the averments made in the complaint and to pass appropriate orders after following the procedure as contemplated under Cr.P.C. in light of the discussions held above.
Registry is directed to forward a copy of this order to the Trial Court for information and needful action.
Sd/-
JUDGE *bgn/-