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2003 DIGILAW 26 (PNJ)

S. C. Sharma v. State of Haryana

2003-01-08

V.M.JAIN

body2003
JUDGMENT V.M. Jain, J. - This judgment shall dispose of Crl.M. No. 27651-M of 1997 and Crl.M. No. 11066-M of 2001, as common questions of law and facts are involved in both these petitions. However, for the purpose of convenience, facts of the case bearing Crl.M. No. 27651-M of 1997 may be noticed. 2. This petition has been filed by accused petitioners S.C. Sharma, Managing Director, Hind Fertilizers and Chemicals Industries Pvt. Ltd. and M/s Hind Fertilizers and Chemicals Industries Pvt. Ltd., through its Managing Director (petitioner No. 2), under Section 482 Criminal Procedure Code, seeking quashing of the criminal complaint under Section 7 of the Essential Commodities Act, 1955, read with Sections 420, 427, 34, 120-B, 149 read with Section 161 Indian Penal Code and all consequential proceedings arising therefrom. It was alleged that the petitioner No. 1 is the Managing Director of the petitioner No. 2 company and that both the petitioners are arrayed as accused in the criminal complaint, pending before the Special Judge, Rohtak, filed by complainant, respondent No. 2. It was alleged that the petitioner company manufactures various kinds of fertilizers, having valid registration certificate in this regard from the competent authority, under the Fertilizer (Control) Order. It was alleged that a notice was served by complainant-respondent No. 2, upon the petitioners, alleging that he alongwith about 70 persons had bought certain products from the shop of respondent No. 3 M/s Ram Nath and later on they suffered damages to their crops and sought compensation. It was alleged that reply to this notice was given by the petitioners, alleging therein that respondent No. 3 was not authorised dealer of the petitioner company. It was alleged that so far as present complaint instituted by respondent No. 2 against petitioners was concerned, there was no material against the petitioners, inasmuch as alleged dealer was not authorised dealer of the petitioner company and the petitioner company had no knowledge about sale of the products, if any, by the alleged dealer, respondent No. 3. It was alleged that Special Judge had erred in law by taking cognizance of the complaint filed by respondent No. 2 against the petitioners. It was alleged that no sample was taken and without following the set procedure, the sample could not be found to be sub-standard. It was alleged that Special Judge had erred in law by taking cognizance of the complaint filed by respondent No. 2 against the petitioners. It was alleged that no sample was taken and without following the set procedure, the sample could not be found to be sub-standard. It was alleged that the criminal complaint and all subsequent proceedings taken thereon qua petitioners were liable to be quashed. It was alleged that neither any sample was drawn nor any sample was got tested from the concerned laboratory and as such no offence had been committed by the petitioners. It was accordingly prayed that the criminal complaint and all subsequent proceedings taken against the petitioners be quashed. In the petition under Section 482 Criminal Procedure Code petitioners had impleaded State of Haryana as respondent No. 1, complainant Ram Kumar as respondent No. 2 and alleged dealer Ram Nath @ Pappi, Prop. M/s Do Bhai Fertilizers as respondent No. 3. No reply was filed by complainant respondent No. 2 Ram Kumar. However, a reply was filed by State of Haryana to the effect that on the complaint made by Deputy Director, Agriculture, Rohtak, FIR No. 7 dated 6.1.1997 under Section 7 of the Essential Commodities Act read with Sections 420 Indian Penal Code and 3/19 of the Fertilizer (Control) Order (wrongly stated as Fertilizer Act) was registered against Ram Nath @ Pappi and that after completion of the investigation, challan was presented in the court and the same was pending adjudication in the court of Special Judge, Rohtak. Subsequently, petitioners placed on record copy of the summoning order, Annxure P11 and copies of the statements made by the complainant as witnesses during preliminary evidence as Annexures P8 to P10. So far as Crl.M. No. 11066-M of 2001 is concerned, the same has also been filed by the same petitioners, seeking quashment of the criminal complaint filed by respondent No. 2, Satbir, on similar grounds. In this petition also no reply has been filed by the complainant respondent No. 2. 3. I have heard the learned counsel for the parties and have gone through the record carefully. 4. Learned counsel for the accused petitioners in both the cases has submitted before me that there was no allegation in the criminal complaint that the complainant had purchased the fertilizers against any cash memo. 3. I have heard the learned counsel for the parties and have gone through the record carefully. 4. Learned counsel for the accused petitioners in both the cases has submitted before me that there was no allegation in the criminal complaint that the complainant had purchased the fertilizers against any cash memo. It was submitted that only cash memo could show the brand name of the fertilizers allegedly purchased by them. Reliance in this regard has been placed on the law laid down by the Honble Supreme Court, in the case reported as Consumer Action Group v. Cadbury India Ltd. and another, 2000(1) Recent Criminal Reports 548. It was further submitted that there was absolutely nothing on record to show that accused petitioners had sold any fertilizers to accused No. 1 namely Ram Nath @ Pappi, propriety of M/s Do Bhai Fertilizers, from whom the complainant had allegedly purchased the fertilizers. It was further submitted that there is nothing on record to show that accused No. 1 Ram Nath @ Pappi was having any licence for the sale of fertilizers. Similarly, there was nothing to show that he was dealer of the present petitioners for the sale of fertilizers. It was further submitted that no sample of the alleged fertilizer was drawn by any person in authority nor the alleged sample was ever sent to the Analyst for analysis and as such it could not be said that any offence had been committed by the petitioners. Reliance in this regard was placed on the law laid down by a Division Bench of this Court, in the case reported as Ashwani Kumar v. State of Punjab and another, 1993(2) Recent Criminal Reports 145. It was further submitted that under Section 12-AA(2) of the Essential Commodities Act, 1955 (as applicable at the relevant time), it was provided that when trying an offence under this Act, the Special Court may also try an offence, other than an offence under this Act, with which the accused may, under the Code, be charged at the same trial, provided that such other offence, is under any other law for the time being in force, triable in a summary way. It was submitted that as per the summoning order, besides the offence under Section 7 of the Essential Commodities Act, the petitioners have been summoned for the offences under Sections 420, 427, 120-B, 161, read with Section 34 Indian Penal Code, in the criminal complaint, which is subject matter of Crl.M. No. 27651-M of 1997 and under Sections 420, 427, 120-B, 161, 149 Indian Penal Code, in the criminal complaint which is subject matter of Crl.M. No. 11066-M of 2001. It has been submitted that out of these offences only offence under Section 427 Indian Penal Code is an offence which could be tried summarily, in view of the provisions of Section 260 Criminal Procedure Code, whereas the offences under Sections 420 and 161 Indian Penal Code are not summarily triable, as both the offence are punishable with imprisonment for more than 2 years. 5. There is considerable force in these submissions of the learned counsel for the petitioners. From a perusal of the complaints in both the petitions, it would be clear that neither there is any reference to the purchase of the fertilizers by the complainant against any cash memo from the shop of accused No. 1, namely Ram Nath @ Pappi, nor there is any reference that any sample of the fertilizer was drawn nor there is any reference that any sample of the fertilizer was ever supplied to the Analyst for the purpose of analysis. Only vague and general allegations have been levelled by the complainant against the various accused, including the accused petitioners. In 2000(1) RCR 549 (SC) (supra), it was held by the Honble Supreme Court, in a case concerning Prevention of Food Adulteration Act, 1955, that there was nothing in the complaint, which could justify issuing of process against the accused, since the cash memo did not show sale of any mis-branded food article. It was held that the trial Court ought not to have taken cognizance of the complaint which did not even lay down proper factual matrix for proceeding further. It was held that the trial Court ought not to have taken cognizance of the complaint which did not even lay down proper factual matrix for proceeding further. It was found that in the complaint there was no mention, whatsoever, of the brand name of the biscuits which were allegedly sold by the accused to the complainant and under those circumstances it was not possible to maintain the complaint alleging mis-branding unless the cash memo which was made the basis of the complaint contained the brand name of the sold product. In the present case, as referred to above, there was no reference to the purchase of fertilizers by the complainant against cash memo. Besides that, no cash memo was attached alongwith the complaint nor any cash memo was produced during preliminary evidence. In the absence of any allegation regarding the purchase of fertilizer against a cash memo and in the absence of any material on record to show as to fertilizers of which brand names were purchased by the complainant from Ram Nath @ Pappi (alleged dealer), in my opinion, it could not be said that the accused petitioners had contravened the provisions of Essential Commodities Act or the Fertilizer (Control) Order, nor it could be said that they had committed any other offence punishable under the Indian Penal Code. This is especially so when there is no material on record to show that the complainant had purchased the fertilizers manufactured by the accused petitioners from accused No. 1 Ram Nath @ Pappi. 6. Furthermore, it is not the case of the complainant that any sample of fertilizer was ever drawn from the premises of their alleged dealer nor it is case of the complainant that any such fertilizer (of which the sample was taken) was manufactured by the accused petitioners. It is also not the case of the complainant that any such sample was ever got tested/analysed nor there is any material on record to show that any such sample was found to be mis- branded or was not fulfilling the requirements of the fertilizer sold. In 1993(2) RCR 145 (supra), it was held by a Division Bench of this Court that the provisions of the Fertilizer (Control) Order, 1985, in so far as these lay down the procedure for taking sample, are mandatory. In 1993(2) RCR 145 (supra), it was held by a Division Bench of this Court that the provisions of the Fertilizer (Control) Order, 1985, in so far as these lay down the procedure for taking sample, are mandatory. It was further held that the view taken in various judgments to the extent that these provisions are mandatory, lay down a correct legal position. It was further held by the Division Bench of the Court that it is open to the accused to show that the mandatory provisions of the Fertilizer (Control) Order have not been complied with, inasmuch as sample was not taken in the manner as laid down and the prosecution cannot be sustained. It was further held that if the Magistrate fails to determine the question that the sample had not been taken in the manner laid down in the Fertilizer (Control) Order, it is open to the accused to approach the High Court for quashing all Criminal proceedings. It was further held that in the petition under Section 482 Criminal Procedure Code, seeking quashment of the criminal proceedings, if it is established before the court from the material produced that the mandatory provisions of the Fertilizer (Control) Order had not been complied with, the Court should quash the proceedings under Section 482 Criminal Procedure Code 7. In the present case, as referred to above, there is absolutely nothing on record to show that any sample was taken nor there is anything on record to show that any such sample was ever sent to the Analyst for analysis. Under these circumstances, in my opinion, the prosecution of the accused petitioners under Section 7 of the Essential Commodities Act, for having violated the provisions of Fertilizer (Control) Order, cannot be sustained and is liable to be quashed. 8. Furthermore, as referred to above, there is absolutely nothing on record to show that accused No. 1 Ram Nath @ Pappu (from whom the complaint had allegedly purchased the fertilizer) was the dealer of the accused petitioner company, nor there is anything on record to show that the petitioner company ever supplied any fertilizer to him for sale. Similarly, there is nothing on record to show that accused No. 1 Ram Nath @ Pappi was having any licence for the sale of fertilizers, as required under the provisions of the Fertilizer (Control) Order. Similarly, there is nothing on record to show that accused No. 1 Ram Nath @ Pappi was having any licence for the sale of fertilizers, as required under the provisions of the Fertilizer (Control) Order. Under these circumstances, so far as the accused petitioners, being manufacturers of the fertilizers, are concerned, could not be held liable for the alleged offence, even if some offence was committed by accused No. 1. 9. Under Section 260 Criminal Procedure Code, it is provided that a court may try an offence in a summary way where the offence is not punishable with death, imprisonment for life or imprisonment for a term exceeding two years, meaning thereby that the offences punishable upto two years may be tried in a summary manner. Besides that certain offences have been specifically mentioned in Section 260 Criminal Procedure Code, which could also be tried in a summary manner. So far as the offence under Section 161 Indian Penal Code is concerned, it is punishable with imprisonment for three years, whereas the offence under Section 420 Indian Penal Code is punishable with imprisonment for 7 years. However, the offence under Section 427 Indian Penal Code is punishable with imprisonment for two years. Thus, neither the offence under Section 161 Indian Penal Code nor the offence under Section 420 Indian Penal Code could be tried in a summary manner, whereas the offence under Section 427 Indian Penal Code could be tried in a summary manner. Offences under Sections 34 and 149 Indian Penal Code are not substantive offences. With regard to the offence under Section 120-B Indian Penal Code, it also bears the same punishment which is the punishment provided for the main offence. In this view of the matter, only the offence under Section 427 Indian Penal Code could be tried in a summary manner. So far as the present petitioners are concerned, there is absolutely nothing on record to show that they had committed offences under Section 427 Indian Penal Code, inasmuch as, there is absolutely no material on record to show that the accused petitioners had committed any mischief which was punishable under Section 427 Indian Penal Code. So far as the present petitioners are concerned, there is absolutely nothing on record to show that they had committed offences under Section 427 Indian Penal Code, inasmuch as, there is absolutely no material on record to show that the accused petitioners had committed any mischief which was punishable under Section 427 Indian Penal Code. So far as other offences are concerned, as referred to above, under Section 12-AA(2) of the Essential Commodities Act, 1955, as applicable at the relevant time, the Special Court was competent to try other offences alongwith an offence under the Essential Commodities Act only if those offences were triable in a summary way. In this view of the matter, the substantive offences under Sections 420 and 161 Indian Penal Code could not be tried by the Special Court alongwith the offence under Section 7 of the Essential Commodities Act. 10. From the perusal of the above, in my opinion, it would be clear that criminal complaint and all subsequent proceedings taken thereon against the accused petitioners, including the summoning orders, are abuse of the process of law and are liable to be quashed in both the cases. 11. For the reasons recorded above, both the petitions are allowed and the criminal complaint, summoning order and all subsequent proceedings taken thereon against the petitioners are quashed. Petitions allowed.