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Gujarat High Court · body

2010 DIGILAW 16 (GUJ)

FNS Agro Foods Ltd. v. State of Gujarat

2010-01-18

RAVI R.TRIPATHI

body2010
Judgment Ravi R. Tripathi J.—Of late, there is a trend of abusing every police personnel of mala fide action and branding all the actions as prejudicial to the complainant - the petitioner before this Court. 2. Present is the petition filed by a Limited Company alleging that some police personnel in interior part of Gujarat - village Kathlal, Tal.: Kapadvanj, Distt.: Kheda/Nadiad acted with prejudice at somebody’s instance (putting his service at stake) against the petitioner and acted in highhandedness manner that he shut down the cooling plant of the refrigerated container with a view to see that the entire consignment is destroyed. 2.1 Coupled with these allegations, it is also the case of the petitioners that the concerned police personnel destroyed only a part of the consignment and rest of the consignment was sold in the market. The Court is at loss to understand as to how these two self-contradictory contentions can go together. 3. This Court at this stage is concerned only with the prayers made in Clauses-E and F of Para-15 because learned Advocate Mr. Asim Pandya with learned Advocate Mr. Abhishek Mehta for the petitioners submitted that so far as prayers made in Clauses-B, C and D of Para-15 are concerned, he has instructions not to press the same because the directions issued by the Hon’ble the Apex Court while dealing with one of the orders passed by this Court in Special Civil Application No. 3600 of 2008 dated 05.08.2008, wherein this Court issued certain directions to the parties, takes care of the same. 3.1 It will be appropriate at this stage to mention about the conduct of the petitioner so as to put it on record that though the order dated 05.08.2008 in Special Civil Application No. 3600 of 2008 was obtained by the parties as ‘consent order’, the same was carried to the Hon’ble the Apex Court and an SLP was filed. Let it not be understood that this Court is feeling offended by petitioners of Special Civil Application No. 3600 of 2008, who filed SLP against an order of this Court. 3.2 The aforesaid facts are set out only with a view to put it on record the manner in which the petitioners conducted themselves, after having obtained an order by consent. 3.2 The aforesaid facts are set out only with a view to put it on record the manner in which the petitioners conducted themselves, after having obtained an order by consent. This is clear from Para-13 of the order, relevant part of which reads as under:— “In view of the aforesaid facts and circumstances, upon the agreement of the learned counsel appearing for the petitioners as well as Respondent No. 8, it is just and proper to issue the following directions:” (emphasis supplied). 3.3 The directions issued in the aforesaid order were subjected to I.A. No. 2 in Petition for Special Leave to Appeal (Civil) No. 22665 of 2008 SLP before the Hon’ble the Apex Court. Along with that SLP, interim application was also filed, which was disposed of by the Hon’ble the Apex Court by order dated 12.02.2009 by issuing certain directions, modifying the directions issued by this Court. A copy of order dated 12.02.2009 is produced at page No. 165 along with the affidavit in reply filed by Respondent No. 4. police personnel, who is targeted by the present petitioners. 3.4 Neither the directions issued by this Court nor the modifications made by the Hon’ble the Apex Court are under consideration because the learned Advocate for the petitioners stated that he is not pressing the reliefs contained in Clauses-B, C and D of Para-15, the same are not elaborately discussed. 4. After the aforesaid statement of the learned Advocate for the petitioners that he is not pressing for the reliefs prayed for in Clauses-B, C and D of para-15, what is left for the consideration of this Court is the relief sought for in Clauses-E and F of para-15. 5. Before dealing with the prayer sought for in Clause-E, it will be appropriate to deal with the prayer sought for in Clause-F. In this Clause, what is prayed for is:— “. . . . . . . to issue appropriate writ, order or direction directing the respondents to grant compensation to the tune of Rs. 5. Before dealing with the prayer sought for in Clause-E, it will be appropriate to deal with the prayer sought for in Clause-F. In this Clause, what is prayed for is:— “. . . . . . . to issue appropriate writ, order or direction directing the respondents to grant compensation to the tune of Rs. 16 lakhs in view of the enormous financial / pecuniary loss suffered by the petitioners due to the patently illegal, arbitrary and unjustified actions on the part of the respondents, more particularly Respondent No. 4 of purposely and intentionally, with clear knowledge of its actions, misusing the authority vested in it by law, thereby destroying and / or disposing off the valuable consignment of the petitioners meant for export.” (emphasis supplied). The papers produced by the petitioners value the consignment at Rs. 16 lakhs. As against that, the case of the prosecution is that, ‘the consignment consisted of 14,980 kg. of mutton and calculating the price of the same @ Rs. 40 per kg., the value comes to Rs. 5,99,200/-. It is only if the truck with refrigeration valued at Rs. 12 lakhs is taken in to consideration the total comes to Rs. 17,99,200/-’. The prayer to grant compensation of Rs. 16 lakhs is again suggestive of the mind frame of the petitioners. So far as awarding of compensation is concerned, it is a settled law that the compensation can be awarded only after a full fledged trial and after ascertainment of the fault on the part of the party concerned and not in a petition under Articles 226 and 227 of the Constitution of India, which is also filed under Section 482 of the Code of Criminal Procedure for quashing of the complaint, as is prayed in Clause-E of para-15 of the petition. The Court is of the considered opinion that the relief prayed for in Clause-F does not warrant any consideration at the hands of this Court, particularly when the Court is prima facie of the opinion that the action/s of Respondent No. 4 cannot be said to be highhanded. The facts as emerge on record to suggest that if Respondent No. 4 had not acted promptly on the information received by him, cow meat, as ascertained by the FSL officials after carrying out the necessary test, as is set out in the FIR, would have been exported. At this juncture, Mr. The facts as emerge on record to suggest that if Respondent No. 4 had not acted promptly on the information received by him, cow meat, as ascertained by the FSL officials after carrying out the necessary test, as is set out in the FIR, would have been exported. At this juncture, Mr. D.C. Sejpal, learned Additional Public Prosecutor, invited attention of the Court to a paper produced by the petitioners at page No. 44, which specifically refers to an order received by the petitioners, ‘to supply beef’. Despite this, the petitioners have an audacity to state that, ‘the petitioners are caused enormous financial / pecuniary loss due to patently illegal, arbitrary and unjustified actions on the part of the respondents’. The petitioners have alleged and have incorporated in the prayer clause that, ‘the actions of the respondents, more particularly that of Respondent No. 4 were purposely and intentional and with clear knowledge of its actions, misusing authority vested in it by law and destroying and /or disposing of the valuable consignment of the petitioners meant for export’. (emphasis supplied). The Court is conscious of the fact that in an individual case, an individual officer can be held liable for his action, provided the party concerned, in a full fledged trial, establishes that the particular officer was acting beyond the authority conferred on him by law and that the particular officer had special reasons to act against the person concerned at the behest of some other person. In the present case, after considering all relevant material, the Court is of the opinion that Respondent No. 4, prima facie, cannot be said to have acted beyond the authority conferred on him by law in any manner and therefore, no relief can be granted against Respondent No. 4. Not only that, no compensation can be awarded to the petitioners. It is made clear that these observations are prima facie and if the petitioners are so advised to prosecute Respondent No. 4, in the event they file any civil proceedings claiming compensation, these observations will not prejudice their rights. 6. Coming to the relief sought for in Clause-E, i.e. quashing of FIR No. 138/2008 at Sub-district Kathlal, Kapadvanj, Distt. Kheda/Nadiad, on reading the FIR and the result of the ‘testing’ by FSL, there is sufficient material on record for proceeding further with the said FIR. 6. Coming to the relief sought for in Clause-E, i.e. quashing of FIR No. 138/2008 at Sub-district Kathlal, Kapadvanj, Distt. Kheda/Nadiad, on reading the FIR and the result of the ‘testing’ by FSL, there is sufficient material on record for proceeding further with the said FIR. At this juncture, assuming for the sake of argument that the officer concerned has mentioned some incorrect Sections, it is always open to change the same at an appropriate stage and therefore, relief sought for in Clause-E can also not be granted. 7. Learned Advocate for the petitioners invited attention of the Court to Section 295A of the Indian Penal Code and also to Section 11(l) of the Prevention of Cruelty to Animals Act, 1960. The Court feels that expressing any opinion on this aspect may cause prejudice to either party. The Court therefore restrains itself from expressing any opinion. 8. Learned Advocate for the petitioners placed heavy reliance on the decision of this Court (Coram: Hon’ble Mr. Justice D.H. Waghela) in Special Criminal Application No. 2296 of 2007 with Criminal Misc. Application No. 7248 of 2008 with Criminal Misc. Application No. 7251 of 2008 with Criminal Misc. Application No. 5846 of 2008 dated 24.11.2008. The Court is of the opinion that the said decision is rendered in the peculiar facts of that case/As the learned Advocate for the petitioner could not convince the Court that the case on hand has similar /identical facts, the said decision is of no help to the petitioners. 9. In view of the aforesaid discussion /observations, the petition is dismissed. Rule is discharged. Ad interim relief granted earlier is vacated. Taking into consideration the fact that the petitioners have suffered loss by loosing the consignment, the Court restrains itself from awarding any cost to the petitioners. 10. At this juncture, learned Advocate for the petitioners requested that the ad interim relief granted earlier, be continued for some reasonable time. Taking into consideration the discussion hereinabove and taking into consideration the fact that the Court has found that the present petition is not only misconceived but is also an ill-designed, the request is rejected. P P P P P