Madhya Pradesh High Court
Raj Kumar Suhane vs The State Of Madhya Pradesh on 15 December, 2021
Author: Rajendra Kumar Verma
Bench: Rajendra Kumar Verma
---1--- M.Cr.C.No.4385/2021
HIGH COURT OF MADHYA PRADESH: BENCH: INDORE
S.B. Hon'ble Shri Justice Rajendra Kumar (Verma)
M.Cr.C. No.4385 of 2021
Raj Kumar Suhane
v/s.
State of M.P.
For appellant: Shri Mangesh Bachawat, Advocate for appellant.
For respondent: Mrs. V. Phaye, Public Prosecutor for State.
_____________________________________________________________
ORDER
(Deliver on this 15/12/2021) ****** This petition has been filed under Section 482 of Cr.P.C for seeking quashment of FIR dated 22.6.2019, registered at crime No.0228 of 2019 at police station Kanwan, district Dhar for commission of offence punishable under Section 420 of IPC and under Section 3 and 7 of the Essential Commodities Act and for offence U/Clause 19(c) of the Fertilizer (Control) Order, 1985.
(2) Facts of the case are that the petitioner is the Director of M/s. Agro Phos India Ltd a company registered under the Companies Act, 1956, having its registered office at M-87, Trade Centre, 18M, South Tukoganj, Indore and the petitioner is not at all responsible for compliance of the provisions of the Fertilizer (Control) Order, 1985. The M/s. Agro Phos is into the business of manufacturing, storing, packing, distributing, transporting of fertilizers, chemicals. The company manufactures and supply Single Super Phosphate, Boronated Super Phosphate and Zincated Super Phosphate and other NPK fertilizers. These fertilizers falls in to the Union List of the Constitution of India and therefore, the Central Govt. has promulgated the Fertilizer (Control) Order, 1985 (Annxure P/5) of its power
---2--- M.Cr.C.No.4385/2021 available to it under the provision of the Essential Commodities Act, 1955 for the purpose of regulating the manufacturing, sale and distribution of the fertilizers in the entire territories of the country. (3) The prosecution case is that a complaint dated 21.6.2019 was submitted by the Agriculture Extension Office (Fertilizer Inspector) Development Block Badnawar, district Dhar, alleging that on the basis of various complaint received from the farmers, the weight of the bags of fertilizers supplied by the petitioner company is below then 50 Kgs and same amounting to fraud played and cheating and therefore, FIR has been registered.
(4) Learned counsel for the petitioner submits that Agriculture Extension Officer as well as the Inspector was required to lodge the complaint against the Compliance Officer of the company, as per Fertilizer (Control) Order, 1985 (Annexure P/5). However, the same was not done and police officers of the concerned police station without appreciating the provisions of Fertilizer (Control) Order, 1985 as well as the Act straightaway lodged the FIR (Annexure A/1) against the petitioner. It is also submitted that Joint Director of the Farmer Welfare and Agriculture (Fertilizer) Department vide letter (Annexure A/7) dated 24.8.2019, clarifying the legal aspects and appreciating the Clause 24 of the FCO, 1985, informed the Fertilizer Inspector about the status of the Compliance Officer of the company and directed to take further action in the matter.
(5) It is also submitted that in pursuance to the letter dated 24.8.2019 of the Joint Director Agriculture Department, the complainant in the case, i.e., Fertilizer Inspector vide letter dated 26.8.2019 (Annexure A/8), also clarified the status of the petitioner informing the SHO police station
---3--- M.Cr.C.No.4385/2021 Kanwan and stated that the petitioner is holding the post of Managing Director in the Company whereas, as per the Clause 24 of the Fertilizer (Control) Order, 1985, one Mahendra Singh is the Compliance Officer in behalf of the company and he shall be sole responsible for any action or offence committed by the Company.
(6) It is also submitted that basic element for bringing the matter into the net of the provisions of the Fertilizer (Control) Order and Essential Commodities Act are completely missing in the matter. In the present case the company appointed Mr. Mahendra Pratap Singh, as the Compliance Officer, even the same was intimated to the Inspector and the Dy. Director Agriculture, Ratlam, then too the action was taken against the present petitioner. Relying on the order passed by this Court vide order dated 20.2.2020 passed in M.Cr.C.No.9257 of 2016 (Birendra Kumar Mishra vs. State of M.P. & Ors.) and the order of the Apex Court in the case of Zandu Pharmaceutical Works Ltd. v/s. Md. Sharaful Haque, reported as AIR 2005 SC 9, the petitioner prayed for quashment of the FIR and all proceedings arising out of the same crime No.228 of 2019, registered at police station Kanwan, district Dhar.
(7) Learned Public Prosecutor for State has submitted that as regard to objection pertaining to non-compliance of Clause 24 of the Fertilizer (Control) Order, 1985, the petitioner and manufacturing company has never informed the answering respondents about their appointed officers (Compliance Officer) and first time in the present application the name of the Compliance Officer has been disclosed and therefore the petitioner cannot seeks shelter under Clause 24 of the Fertilizer (Control) Order, 1985. (8) Heard the learned counsel for the parties and perused the record.
---4--- M.Cr.C.No.4385/2021 (9) The question before this Court is whether in view of the grounds
contained in the petition, the desired relief of quashment can be afforded to the petitioner or not.
(10) Clause 24 of the Fertilizer (Control) Order, 1985, is reproduced as below :-
"24. Manufacturers/[importers]/Pool handling agencies to appoint officers responsible with compliance of the order :-
Every manufacturing organization [importer] and pool handling agency shall appoint in that organization and in consultation with the Central Government, an officer, who shall be responsible for compliance with the provisions of this order."
(11) Learned counsel has referred to a circular of the Government of India dated 1.8.1997 (Annexure P/5), which has been addressed to Secretary Agriculture of all the State / Union Territories wherein a direction has been made that Enforcement Officers be advise to file cases against designated officers in the event of any offence committed and not against any body else who is not designated for the purpose. Learned counsel submits that in view of the aforesaid circular which has been issued for strict compliance of Clause 24 (supra), FIR could have been lodged only against the Compliance Officer.
(12) The petitioner has filed Annexure A/4 Circular/memorandum issued by the Directorate of Kisan Kalyan Tatha Krishi Vikas, Madhya Pradesh, which it has been mentioned that Mr. Mahendra Pratap Singh S/o. Amar Singh has been authorized for quality related issues as per FCO for the State and he is the Compliance Officer appointed under Fertilizer (Control) Order, 1985.
(13) Complainant Rajesh Verma, Agriculture Extension Officer (Fertilizer Inspector), he is subordinate to Dy. Director of Kisan Kalyan Tatha Krishi
---5--- M.Cr.C.No.4385/2021 Vikas of the concerned district and it should have been in well knowledge of Rajesh Verma Agriculture Extension Officer that Mr. Mahendra Pratap Singh was the Compliance Officer appointed under Fertilizer (Control) Organization.
(14) Learned counsel for the petitioner has relied upon the judgment in the case of Vishwa Pal Singh vs. State of Punjab, reported as (2011) SCC on-line P&H 4897 in which prosecution had been lodged against Vishwa Pal Singh, the petitioner whereas one Vishnu Prasad was appointed as Compliance Officer under Clause 24 of FCO, 1985. The court allowed the petition and FIR and all subsequent proceedings were directed to be quashed. This Court vide order dated 20.2.2020 passed M.Cr.C.No.9257 of 2016 has quashed all the proceedings and FIR against the petitioner Birendra Kumar Mishra. In Zandu Pharmaceutical Works Ltd (supra), the Apex Court has observed the following which reads as under :-
"It would be an abuse of 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 intimation/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 office is made out even if the allegations are accepted in toto."
(15) FIR which has been lodged is Annexure A/1 dated 22.6.2019. Thus, prior to lodging of FIR, memorandum/Circular (licence) (Annexure A/4) regarding appointment of Mr. Mahendra Pratap Singh, as a Compliance Officer has been issued by Directorate Kisan Kalyan Tatha Krishi Vikas,
---6--- M.Cr.C.No.4385/2021 Bhopal (M.P.) on 4.6.2018. Hence, in view of Clause 24 of Fertilizer (Control) Order read with Circular dated 1.8.1997, the prosecution could have been lodged only against Mr. Mahendra Pratap Singh. The defence of the respondent that no information had been received regarding appointment of Mr. Mahendra Pratap Singh before lodging of FIR is rejected in view of the discussions above.
(16) The present case is no different from the cases of Vishwa Pal Singh (supra) and Birendra Kumar Mishra (supra). FIR could not have been registered against the present petitioner, i.e., Raj Kumar Suhane, Managing Director and it could be lodged/registered only against Mahendra Pratap Singh, Compliance Officer.
(17) Consequently, the petition under Section 482 of Cr.P.C, stands allowed and the prosecution against the petitioner stands quashed which would include quashment of FIR and all subsequent proceedings against him.
(18) Accordingly, the petition filed under Section 482 of Cr.P.C, stands allowed in above terms.
(Rajendra Kumar (Verma)
Judge
Digitally signed by SHAILESH
MAHADEV SUKHDEVE
SS/- Date: 2021.12.16 15:42:47
+05'30'