K. P. Srinivasan v. K. Babu — 1994 DIGILAW 212 (MAD)

Judgment : The second accused in S.T.C.Nos. 102 of 1991 and 103 of 1991 on the file of the Special Judge, Essential Commodities Act, Madras, has filed these petitions under Sec. 482, Crl.P.C. praying to call for the records in the above cases and quash the same. 2. Short facts are: The respondents in both the Criminal Original Petitions (Crl.O.P.Nos.625 and 626 of 1992) have filed complaints against the Fertilizers and Chemicals Travancore Limited and the petitioners in both the cases, who is the Deputy General Manager (Operations) FACT Limited, Trichy, arraying them as accused 1 and 2 for offences punishable under Sec.19(1)(a) and (b) of the Fertilizer Control Order, 1985 read with Sec. 7(i)(a)(ii) of the Essential Commodities Act, 1955. The allegations in the complaints are briefly as follows: A.1 is the manufacturing firm which manufactured Factumphos 20-20-0 complex. A-2 is the Deputy General Manager (Operations), who is incharge and responsible for conducting the business of the firm. The then Agricultural Officer inspected the dealer shop of M/ s.P.K. Subramaniam on 4. 90. He found 3.600 M.T. of Factumphos 20.20-0 complex in his shop and verified the stocks. He revealed his intention to take sample of the same, supplied by the first accused from the dealer’s shop. The dealer agreed. The samples were taken from the stitched bags. Out of the three samples taken and sealed, one was given to the dealer and out of the remaining two samples, one was sent to the Agricultural Chemist and the remaining one sealed sample was kept under the custody of the Assistant Director of Agriculture. The Agricultural Chemist, Fertilizer Control Laboratory, Kancheepuram, has sent his report on 25. 1990. On a perusal of the Analytical report, it was found that the sample failed in particle size i.e., material passes 4.76 per cent through 4 m.m. sieve as against 90 per cent and in 1 m.m.sieve it passes “Nil” as against 5 percent as required by the prescribed standard in Fertilizer Control Order. Hence the sample was declared as substandard in particle size and thereby accused 1 and 2, who manufactured the substandard fertilizer, have contravened the provisions of Sec. 19(i)(a) and (b) of the Fertiliser Control Order, 1985. The duplicate copy of the said report was sent to the dealer. Show cause notices were given to the accused. The replies sent by the accused were not satisfied. The duplicate copy of the said report was sent to the dealer. Show cause notices were given to the accused. The replies sent by the accused were not satisfied. A-1 the manufacturing firm which manufactured the said complex and A-2, the person authorised by the Board of Directors of the manufacturing firm, has supplied substandard Factumphos 20-20-0 complex to the dealer, who sold the same to the farmers. A-1 and A-2 have contravened the Sec. 19(i)(a) and (b) of the Fertiliser Control Order, 1985 and hence liable to be punished under Sec.7(i) (a) (ii) of the Essential Commodities Act. Hence the complaint. 3. Mr.S.B.S. Raman, the learned counsel appearing for the petitioner, would submit that the petitioner is a public servant, that he committed the alleged act in discharging his duty in pursuance of the order based under Sec. 3 of the Fertiliser Control Order, 1985 (I shall hereafter refer to as ‘Act’) and while so, without the previous sanction of the Central Government, he cannot be prosecuted and in the instant case, no previous sanction of the Central Government was obtained and as such the prosecution fails and is liable to be quashed. He would further submit that the petitioner is the Deputy General Manager (Operations) that the allegations which are to make him guilty as per Sec.10 of the Act are not made in the complaint. On that ground also the prosecution against him is liable to be quashed. He would further submit that the particles are said to be bigger in size than the standard and at the time when the manufacturing produce came out of the firm that would have been according to the standard and later on, during the course of transit to the dealer’s shop and subsequently it would have become bigger in size and so the petitioner cannot be prosecuted for non conforming to the standard. I have heard Mr. Raja, the Government Advocate, on the above aspects. 4. I have carefully considered the submissions made by Mr.S.B.S. Raman. I shall first take submission No. 1 To accept that submission firstly the petitioner must be a public servant. Public servant is not defined in the Act. But, as per Sec. 2(f) of the Act, words and expressions used but not defined in this Act and defined in the Code shall have the meanings respectively assigned to them in that Code. Public servant is not defined in the Act. But, as per Sec. 2(f) of the Act, words and expressions used but not defined in this Act and defined in the Code shall have the meanings respectively assigned to them in that Code. Code is defined in Sec. 2(i)(a) as follows: "Code" means the Code of Criminal Procedure, 1973 (2 of 1974)" As per Sec. 2(y) of the Code of Criminal Procedure, words and expressions used herein and not defined but defined in the Indian Penal Code have the meanings respectively, as if assigned to them in that Code. Public servant has not been defined in the Code. But, public servant is defined in Sec. 21 of the I.P.C. Mr.S.B.S. Raman would submit that relevant clause is clause (b) of 12th clause of Sec. 21 of I.P.C. The relevant portion reads as follows: "Public Servant": The words "Public servant" denote a person falling under any of the descriptions hereinafter following namely: Twelth-Every person- (a)... (b) in the service or pay of a local authority, a corporation established by order under a Central, Provincial or Slate Act or a Government Company as defined in Sec. 617 of the Companies Act, 1956." Sec. 617 of the Companies Act reads as follows: "Definition of "Government company’: For the purpose of this Act Government-company means any company in which not less than 51 per cent of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government, and partly by one or more State Governments, and includes a company which is a subsidiary of a Government company as thus defined". The learned counsel produced a certificate issued by the Director to the effect that Fertilizers and Chemicals Travancore Limited (FACT) is a public sector undertaking and that Government of India has more than 99% of shares of the company and have control over its business. The petitioner being a person in the service of a government company is a public servant as defined in Sec. 21 of I.P.C. Because of the above provisions of law, he is a public servant within the provisions of the Essential Commodities Act, 1955. 5. The petitioner being a person in the service of a government company is a public servant as defined in Sec. 21 of I.P.C. Because of the above provisions of law, he is a public servant within the provisions of the Essential Commodities Act, 1955. 5. The further requirement to take the protection under Sec. 15-A of the Act is that the offence alleged to have been committed by him was while acting or purporting to act in the discharge of his duty in pursuance of an order made under Sec. 3 of the Act. In the instant case, the acts alleged against him for which he is proceeded with the offence are set out in the complaint and they read as follows: "Accused 1 and 2 have contravened the above said provisions of the Fertilizer Control Order, 1985". Then again it is alleged as follows: "A-1 the manufacturing firm which manufactured 20-20-0 complex and A-2 the person authorised by the Board of Directors of the manufacturing firm have supplied substandard Factumphos 20-20-0 complied to the dealer who sold the same to the farmers". It is to be seen whether the manufacture of substandard fertilizer and sale of the same were acts done while acting or purporting to act in the discharge of his duty in pursuance of an order, made under Sec. 3 of the Act. Mr.S.B.S. Raman would say that these were done in pursuance of the Fertilizer Control Order, 1985, which was an order passed in exercise of the powers conferred under Sec. 3 of the Act. I am unable to see anything in this order which directs the manufacture of fertilizer. Manufacture of fertiliser is a commercial activity. Fertilizer Control Order prescribes certain norms and standards, which the finished fertiliser product must conform. There is a vast distinction between manufacture of fertiliser and conformity of certain standards in the product or with regard to the sale of the same. The two are distinct and different activities. So I am unable to accept the submission that these acts were done in pursuance of the Fertiliser Control Order, 1985.‘ 6. Regarding the second submission, the extracted portions of the complaint supra, regarding the offence alleged against him, are allegations directly made against him. It is not as if by virtue of Sec.10 of the Act, he was held to have committed these offences by virtue of the deeming provision. Regarding the second submission, the extracted portions of the complaint supra, regarding the offence alleged against him, are allegations directly made against him. It is not as if by virtue of Sec.10 of the Act, he was held to have committed these offences by virtue of the deeming provision. Only in such a case where offence is committed by the company and if criminal liability is sought to be fastened against the petitioner by virtue of his holding some office in that company, the allegations which are required as Sec.10 of the Act need be made. In such cases,only by virtue of deeming provisions they can be made liable. But such is not the case when direct allegations were made regarding a particular accused. In this case, in the complaint, at the outset it is stated that the second accused was incharge and responsible for the conduct of the business of the firm. Then it is alleged that A-1 and A-2 have manufactured the substandard fertilizer and have thus contravened the provisions of Sec. 19(i)(a) and (b) of Fertilizer Control Order, 1985. Then again it is stated that A-1 is the manufacturing firm and A-2 is the person authorised by the Board, have supplied substandard fertiliser. Both manufacture and supply of the substandard fertiliser is alleged against A-2. It is not as if he was sought to be made liable by virtue of the deeming provisions contained in Sec. 10 of the Act. So the allegations required under Sec. 10 of the Act are not necessary in this case. The absence of the same does not enable the petitioner to get out of the offence. Taking this view of matter, I am unable to accept either the second submission made by Mr.S.B.S. Raman. Regarding the third submission that can be considered only when evidence is let in. At the stage of trial, this can be decided. 7. Since none of the submissions made by Mr.S.B.S. Raman finds acceptance with me, this petition fails and shall stand dismissed.