Karnataka High Court
B M Patel @ Patel Bharat Kumar Mangalbhai ... vs The State Of Karnataka on 12 September, 2023
-1-
NC: 2023:KHC-K:7295
CRL.P No. 201362 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T.
CRIMINAL PETITION NO.201362/2023
BETWEEN:
1. B.M. PATEL @ PATEL BHARATKUMAR
MANGALBHAI
S/O. PATEL MANGALBHAI
AGE: 58 YEARS, OCC: CHIEF MANAGER (DAP),
COMPLIANCE OFFICER,
INDIAN FARMERS FERTILIZERS
CO-OPERATIVE LTD., (IFFCO), KANDLA PORT,
GANDHIDHAM,
DIST. KUTCH,
Digitally signed STATE: GUJRAT- 370210.
by SHILPA R
TENIHALLI 2. SUNILKUMAR B. OGENNAVAR
Location: HIGH S/O. BASAPPA OGENNAVAR
COURT OF
KARNATAKA AGE: 37 YEARS, OCC: MANAGER
KARNATAKA STATE CO-OPERATIVE SALE
CORPORATION LTD, AGRICULTURE MARKET,
KUSTAGI ROAD,
SINDHANUR
DIST. RAICHUR- 584143.
...PETITIONERS
(BY SRI AVINASH A. UPLOANKAR;
SRI RAVI K. ANOOR, ADVOCATES)
-2-
NC: 2023:KHC-K:7295
CRL.P No. 201362 of 2023
AND:
THE STATE OF KARNATAKA
DEPARTMENT OF AGRICULTURE,
AGRICULTURE OFFICER-CUM-INSPECTOR
OF FERTILIZER,
SINDHANUR, TQ. SINDHANUR,
DIST. RAICHUR
REPRESENTED BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH- 585107.
...RESPONDENT
(BY SRI J. SHAHABUDDIN, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRYING TO EXAMINE THE RECORDS AND
QUASH THE TAKING OF COGNIZANCE IN C.C.
NO.2332/2021 DATED 11.06.2021 FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 3 AND 7 OF ESSENTIAL
COMMODITIES ACT, 1955, PENDING BEFORE THE
PRINCIPAL CIVIL JUDGE AND JMFC, AT SINDHANUR
AGAINST THE PETITIONERS.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners have filed this petition under Section 482 of Cr.P.C., praying to quash the taking of cognizance in C.C. No.2332/2021 dated 11.06.2021 for the offence punishable under Sections 3 and 7 of Essential -3- NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023 Commodities Act, 1955 (for short 'E.C. Act') on the file of Principal Civil Judge and JMFC Court, Sindhanur.
2. It is the case of the prosecution that the complainant, who is respondent herein, was working as Agricultural Officer-Cum-Inspector of Fertilizer, Sindhanur; he filed a private complaint before the jurisdictional Court on behalf of State on 08.06.2021 for the aforesaid offences alleging that he visited the shop of petitioner No.2 on 28.12.2015 where he collected IFFCO Co., Ltd., DAP 18:46 fertilizer samples manufactured by IFFCO Kandla Gandhi Dham, Gurjat, in three packets as per the procedure from the stock of DAP 18:46 and packed and sealed as per the procedure, out of which one packet of sample has been sent to Quality Control Laboratory Vadavatti (Gangavati) Koppal District, one sample kept in Agriculture Office and one packet has been handed over to the dealer. As per the laboratory report dated 11.01.2016 the fertilizer sent by the complainant was not according to the specification, hence, he proceeded to prosecute the -4- NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023 petitioners under the provisions of Clause 28(1)A of the Fertilizer Control Order, 1985 and 3 and 7 of E.C. Act.
3. Heard learned counsel for the petitioners and the learned High Court Government Pleader for the respondent-State.
4. It is submitted that, the Company should be made as accused along with other accused. Failing to array the Company as accused is said to be illegal and as such initiation of prosecution against present petitioners do not survive for consideration and liable to be quashed.
5. Per contra, learned High Court Government Pleader for respondent-State vehemently submitted that the complainant has not made the Company as accused in the proceedings, but there is scope under Section 319 of Cr.P.C., to implead the Company as accused before the trial Court, therefore not impleading the Company as accused in the proceeding is not fatal to the case of -5- NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023 prosecution and this irregularities can be cured at the time of taking cognizance. Thus, prayed to dismiss the petition.
6. Having heard the learned counsel for the parties to the lis and on perusal of the material available on record, it appears that the complainant collected sample fertilizer from the shop of petitioner No.2 in three packets and sealed the same and he sent one packet to laboratory, one sample to his higher authorities and one packet kept in the office; later he came to know from laboratory report that the said fertilizer was not of specifications.
7. Admittedly, the complainant has not made the Company as party to the proceedings. Here it is necessary to refer Section 10 of the Essential Commodities Act, 1955, which reads as under:
"10. Offences by companies. _ (1) If the person contravening an order made under section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for -6- NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023 the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub- section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-
section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation._ For the purposes of this section_
(a) "company" means any body corporate, and includes a firm or other association of individuals; and -7- NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023
(b) "director" in relation to a firm means a partner in the firm.
1[10A. Offences to be cognizable._ Notwithstanding anything contained in 2[the Code of Criminal Procedure, 1973 (2 of 1974)] every offence punishable under this Act shall be "cognizable 3***].
[10B. Power of court to publish name, place of business, etc., of companies convicted under the Act._(1) Where any company is convicted under this Act, it shall be competent for the court convicting the company to cause the name and place of business of the company, nature of the contravention, the fact that the company has been so convicted and such other particulars as the court may consider to be appropriate in the circumstances of the case, to be published at the expense of the company in such newspapers or in such other manner as the court may direct. (2) No publication under sub-section (1) shall be made until the period for preferring an appeal against the orders of the court has expired without any appeal having been preferred, or such an appeal, having been preferred, has been disposed of. -8-
NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023 (3) The expenses of any publication under sub- section (1) shall be recoverable from the company as if it were a fine imposed by the court.
Explanation._ For the purposes of this section, "company" has the meaning assigned to it in clause (a) of the Explanation of section 10.] [10C. Presumption of culpable mental state._(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation._ In this section, "culpable mental state"
includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.]"-9-
NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023
8. A careful reading of the above provision, makes it clear that, if any offence committed by the Company, the Company should be made as party to the proceedings. Unless, the Company is made as a party to the proceedings, the initiation of the criminal proceedings against the other accused persons, would not be proper.
9. In the present case, the 1st petitioner is the Chief Manager of IFCCO Kandla Port and the 2nd petitioner is the Manager of Karnataka State Co-Operative Sale Corporation Limited. On careful perusal of the entire averments of the complaint, the complainant committed an error in not-arraying the Company as a party to the proceedings. As such, prosecution do not survive for the aforesaid reasons.
10. In the of case of Anil Hada v. Indian Acrylic Ltd., reported in (2000) 1 SCC 1 the Hon'ble Apex Court has held that "the provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the
- 10 -
NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023 second and the third categories mentioned above". Therefore, unless the Company as a principal accused has committed the offence, the persons mentioned in Sub- Section (1) would not liable and cannot be prosecuted. In the case of DAYLE DE' SOUZA VERSUS GOVERNMENT OF INDIA arising out of SPECIAL LEAVE PETITION (CRL.) No.3913 OF 2020 at Para 27 the Hon'ble Apex Court has held as under:
"In terms of the ratio above, a company being a juristic person cannot be imprisoned, but it can be subjected to a fine, which in itself is a punishment. Every punishment has adverse consequences, and therefore, prosecution of the company is mandatory. The exception would possibly be when the company itself has ceased to exist or cannot be prosecuted due to a statutory bar. However, such exceptions are of no relevance in the present case. Thus, the present prosecution must fail for this reason as well."
11. In the case of M/s. Cheminova India Limited & Anr. vs. State of Punjab & Ors. Crl.A.
- 11 -
NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023 No.750/2021, arising out of SLP (Crl.) No.4144/2020 the Hon'ble Apex Court has held that, "in view of the specific provision in the Act dealing with the offences by companies, which fixes the responsibility and the responsible person of the Company for conduct of its business, by making bald and vague allegations, 2nd Appellant - Managing Director cannot be prosecuted on vague allegation that he being the Managing Director of the 1st Appellant - Company. A reading of Section 33 of the Insecticides Act,1968 also makes it clear that only responsible person of the Company, as well as the Company alone shall be deemed to be guilty of the offence and shall be liable to be proceeded against".
12. A careful reading of the above provisions and the decisions cited supra and the facts and circumstances of the present case, make it clear that, if any offence committed by the Company, the Company should be made as party to the proceedings. Unless Company is made as
- 12 -
NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023 party to the proceedings, initiation of criminal proceedings against other accused persons would not be proper.
13. In the present case the petitioners are stated to be the Chief Manager and the Manager of the Fertilizer Company, respectively. The complainant must array the Company as party to the proceedings. But he committed an error in not arraying the Company as party to the proceedings. As such, the petition deserves to be allowed. In the light of the above observations, I proceed to pass the following:
ORDER
i) The petition is allowed.
ii) The proceedings in C.C. No.2332/2021 dated 11.06.2021 on the file of the Principal Civil Judge and J.M.F.C. Court, Sindhanur, Raichur District is hereby quashed.
However, it is made clear that this quashment order will not come in the way of the complainant initiating fresh
- 13 -
NC: 2023:KHC-K:7295 CRL.P No. 201362 of 2023 proceedings in accordance with law, subject to law of limitation.
Sd/-
JUDGE SBS List No.: 1 Sl No.: 29