Madhya Pradesh High Court
Nayab Dastdgir vs The State Of Madhya Pradesh on 20 November, 2020
Equivalent citations: AIRONLINE 2020 MP 1163
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C.No.37765/2019
Nayab Dastdgir
Vs
The State of M.P. & another
----------------------------------------------------------------------
Shri Saurabh Kumar Sharma, learned counsel for the
petitioner.
Shri Brijendra Kushwaha, learned Panel Lawyer for the
respondent/State.
ORDER
(20.11.2020) The petitioner has filed this petition under Section 482 of Cr.P.C. for quashing the FIR in connection with Crime No.854/2019 registered at Police Station-Jahangirabad, District- Bhopal, for the offence punishable under Section 3/7 of Essential Commodities Act, 1955 (hereinafter referred as 'Act 1955').
2. As per prosecution case, on 19.07.2019, complainant-S.K. Sharma, Agriculture Development Officer, Block Fanda, District-Bhopal has submitted an application in Police Station-Jahangirabad requesting to register the F.I.R 2 M.Cr.C.No.37765/2019 against the Director of Vindhya Agro Care i.e. present petitioner for violating the provisions of Seeds (Control) Order, 1983 (hereinafter referred as 'Order 1983'). It is mentioned in the complaint that on 30.06.2018, he took sample of paddy from aforesaid firm and sent to laboratory, situated at Indore for examination, in which sample is found substandard. Therefore, police has registered the FIR against the petitioner for the offence punishable under Section 3/7 of Act, 1955.
3. Learned counsel for the petitioner submits that FIR registered against the present petitioner is abuse of process of law and deserves to be quashed. He submits that petitioner is not manufacturer of seeds and he was only running sales center and thus he is protected under Section 7 of Seeds Rules, 1968. The only allegation against the present petitioner is that seeds which were seized from his sales center, are found substandard whereas it is for the manufacturer to deal with the aforesaid requirements. The petitioner has no role in production of seeds. It is further submitted that in the present circumstances of the case, provision of Rule 15 of Order 1983 is not attracted. He further submits that no show cause notice was issued to the petitioner 3 M.Cr.C.No.37765/2019 before suspending the license. It is further argued that various factors are responsible to affect the seed quality like seed storage condition, seed moisture contained, insect infection and many other environmental factors but the testing report does not indicate that which of the factor has been violated. Therefore, on the basis of such report, the action taken by the authority is erroneous. The suspension order is also based on incomplete list of farmers who had purchased the seeds from the petitioner. He further submits that even if it is assumed that any violation was done by the petitioner, no offence under Act 1955 be made out as there is special enactment of Seeds Act, 1966, for maintaining standard of seeds and others requirements. As per Seeds Act, 1966 if any contravention of any provision of the Act and Rules is made, same is punishable only with fine of Rs.500/- for the first offence under Section 19 of Seeds Act, 1966. Under Cr.P.C. Section 155 also prescribes that when information is given to an officer In-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall record the substance of the information in the prescribed form and refer the informant to the concerning magistrate. Here in the case, the offence levelled is bailable offence in view of the 4 M.Cr.C.No.37765/2019 Section 10-A of Act, 1955. He further submits that petitioner has not violated any Rules prescribed under the Seeds (Control) Order, 1983. He submits that in case the offence is disclosed under the Seeds Act, then only Seeds Inspector is empowered to launch the prosecution in respect of contravention made thereunder. Therefore, the proceedings under E.C. Act is improper and contrary to law. In support of his contention, he relied upon the orders passed by this High Court in M.Cr.C.No.18348/2017 (Nirmal Seeds Pvt. Lmt. Vs. State of M.P. & Others) dated 25.10.2018, M.Cr.C.No.13601/2016 (Mayank Jain Vs. State of M.P.) dated 02.12.2016 and M.Cr.C.No. 27886/2019 (Ramji Das Vs. State of M.P.) dated 12.07.2019. With the aforesaid, he prays for quashment of said FIR.
4. Per-contra, learned P.L. for the respondent/State opposes the prayer submitting that prosecution has registered the case under Order 1983 which is enacted in exercise of the powers conferred by Section 3 of Act 1955 and if any contravention is made under Clause 13 Order 1983, same is punishable under Section 7 of Act, 1955. Therefore, there is no applicability of Seeds Act, 1966 in the case. The petitioner was in possession of substandard seeds and he was selling it 5 M.Cr.C.No.37765/2019 to agriculturists which is punishable under the Act 1955. Defence of petitioner may not be looked at this stage and he may raise same before the trial Court. With the aforesaid, he prays for dismissal of the said petition.
5. On perusal of case diary, it appears that allegation against the petitioner is that he breached the condition of Order 1983 which is punishable under Section 3/7 of Essential Commodities Act. As per prosecution, sample taken from the shop of petitioner is found substandard which is a violation of Clause 13(1)(c) of Order 1983. Learned counsel for the petitioner raised the ground that case registered by the police under E.C. Act whereas the matter pertains to Seeds Act and prosecution ought to have been launched by Seeds Inspector appointed under the Seeds Act, 1966.
6. The Order 1983 is an enactment under Act 1955 in exercise of power conferred by Section 3 and Clause 13 thereof provides the provision of inspection and punishment. Under Order 1983, Clause 12 also provides the appointment of Inspectors and here in the case, the FIR prima facie indicates that same is lodged by Senior Agriculture Development Officer by exercising the power provided Order 6 M.Cr.C.No.37765/2019 1983. Under Essential Commodities Act, Section 10-A provides the offences to be cognizable and in view of Section 11 thereof, no Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21 of the India Penal Code, 1860. In the case of Satya Narain Musadi And others Vs. State of Bihar reported in (1980) 3 SCC 152, the Hon'ble Apex Court has held that Magistrate can take cognizance on a police report filed under Section 173 Cr.P.C. regarding an offence under Act, 1955, relevant para is also quoted as under:
"6. Section 190 provides for cognizance of an offence by Magistrate. The Magistrate as described in Section 190(1) may take cognizance of any offence in three different manners; (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The expression "police report" has been defined in Section 2(r) of the Code to mean a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173. In view of the specific definition the controversy raging round the expression "upon a police report of such facts" as found in Section 190(1)(b) of the Code of 1898 prior to its amendment in 1923 by Act 18 of 1923 when the words "report in writing of such facts made by a police report" were substituted for the words "police report of such facts" has lost its edge and significance. The section as it now stands demonstrably manifests the legislative intention that the Magistrate can 7 M.Cr.C.No.37765/2019 take cognizance under Section 190(1)(b) upon a police report meaning thereby the report submitted by a police officer under Section 173(2) of the Code.
7. Section 11 of the Act precludes a Court from taking cognizance of the offence punishable under the Act except upon a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21 of the Penal Code, 1860. The question is, if such police officer investigating into an offence which the Act has declared as cognizable submits a report in writing under Section 173(2) disclosing an offence under the Act and requesting for proceeding further into the matter, would it satisfy the requirements of Section 11 for taking cognizance of the offence so disclosed. Undoubtedly the police officer submitting the report would be a public servant within the meaning of Section 21 IPC and his report has to be in writing as required by Section 173(2). It must disclose an offence of which cognizance can be taken by the Magistrate. Apparently Section 11 would stand fully complied with. This question was raised before this Court in a slightly different context in Pravin Chandra Mody v. State of Andhra Pradesh AIR 1965 SC 1185]. The question was whether a report submitted by the police officer after investigating into an offence under Section 420 IPC and Section 7 of the Act as it then stood would enable the Magistrate to take cognizance under Section 190(1)(a) or Section 190(1)(b) of the Code so as to require the Magistrate to proceed to try the offence under Section 252 or Section 251-A of the Code, as the case may be. If such police report would provide sufficient compliance with Section 11 even though at the relevant time the offences punishable under the Act were not declared cognizable it was contended that it may nonetheless be at best a complaint under Section 190(1)(a) and in that event the Magistrate taking cognizance of the offence under Section 190(1)(a) of the Code will have to proceed to try the offence according to procedure prescribed under Section 252. On the other hand it was contended that where the police 8 M.Cr.C.No.37765/2019 officer was investigating into allegations of facts constituting some cognizable and some non- cognizable offences the report submitted by such officer would be under Section 190(1)(b) and the Magistrate taking cognizance of the offence on such report would be so doing under Section 190(1)(b) and the case would have to be tried according to the procedure prescribed in Section 251-A. This Court held that "the police officer is a public servant" and this was not denied. The requirements of Section 11 are, therefore, satisfied though Section 11 does not make the report, if filed by a police officer, a charge-sheet. It was also contended that the report under Section 11 could not be treated as a report under Section 173 but only as a complaint under Section 190(1)(a). The police officer was investigating under Section 156(1) of the Code of Criminal Procedure a cognizable offence under Section 420 IPC which was based on the same facts as the offence under Section 7 of the Essential Commodities Act. He investigated the latter offence along with the former and joined it with the former in the charge-sheet which he presented. Negativing the contention it was held that where the law requires a report in writing by a public servant to the Magistrate for taking cognizance of an offence, the requirements of law are satisfied when a report is forwarded by a public servant who is a also a police officer. By a subsequent amendment and insertion of Section 10-A in the Act, the offences under the Act are declared as cognizable and, therefore, the police officer would be entitled to investigate into such offences without the order of a Magistrate and if the police officer proceeds to investigate into the offence it is obligatory upon him to submit a report under Section 173(2). Such a report would be a police report for purposes of Section 190(1)(b) and if the Magistrate takes cognizance of an offence under the Act upon such a police report, Section 11 would be complied with in its entirety."
(Emphasis supplied) 9 M.Cr.C.No.37765/2019
7. Further, as per clause 8-A as well as clause 13 (1)
(c) of Order 1983, dealers are fastened with the liability to ensure certain standard in respect of seeds. These provisions are provided to ensure that sample conforms to standard of quality claimed in accordance with the procedure laid down in schedule to a laboratory notified under the Seeds Act, 1966. If any contravention is found, same is punishable under Section 3/7 of Act 1955. Therefore, the Order 1983 is an enactment under Section 3 of Act 1955 and it only borrows the procedure about to ensure the standard of sample from Seeds Act, 1966. Further, Section 3 of Act 1955 deals with the powers to control production, supply, distribution, etc. of essential commodities whereas penalty for contravention of any order thereof, is provided under Section- 7.
8. As far as merits of the case is concerned, prima facie it appears that petitioner is license holder for selling seeds, produced by National Seeds Corporation, New Delhi. Allegation against the present petitioner is that he was having substandard seeds for selling in his Sales Center. However, prima facie, petitioner does not seem like manufacturer of seeds but he is involved in selling substandard seeds, produced by other firms. Clause 8-A of Order 1983 also 10 M.Cr.C.No.37765/2019 imposes liability upon dealers to ensure certain standard in respect of seeds as per notification issued under Seeds Act, 1966. The Act 1955 is provided, in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce, in certain commodities. As per Schedule, seeds of food crops are assigned as essential commodities. Therefore, at this stage, it would not be justifiable to quash the FIR only on the basis of prime facie assessment petitioner not being manufacturer of seeds. It is a matter of trial and can be looked by the trial Court after evaluating evidences produced by the parties. Prima facie, the FIR indicates the action against the petitioner is taken by the authority by exercising power provided under 'Order 1983' and the same is punishable under section 3/7 of Act 1955. It is well settled principle of law that Court in exercise of its jurisdiction under Section 482 Cr.P.C., cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing an obstruction in the progress of inquiry in a criminal case which 11 M.Cr.C.No.37765/2019 may not be in public interest. Power under Section 482 of the Code of Criminal Procedure, 1973 should not be exercised in a routine manner, so as to cut short the entire process of the trial before the courts below. It is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice.
9. After hearing the rival submissions of both the parties and from perusal of FIR, it appears that prima facie ingredients are available to constitute the above said offence against the present petitioner. If any technical issues are born in the mind of petitioner, same may be raised before the trial Court, at appropriate stage of trial, this Court, while exercising jurisdiction under Section 482 Cr.P.C., may not embark upon the enquiry of the matter.
10. Accordingly, this Court is of the considered view that it is not a fit case to invoke extra ordinary jurisdiction of the Court provided under Section 482 of Cr.P.C. Hence, this petition is hereby dismissed. However, petitioner may raise all the grounds before the trial Court, at appropriate stage of trial. Needless to say, the trial Court shall proceed with the 12 M.Cr.C.No.37765/2019 case without being influenced from any finding of this Court.
(Rajendra Kumar Srivastava) Judge sp Digitally signed by SAVITRI PATEL Date: 2020.11.20 17:52:02 +05'30'