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Karnataka High Court · body

2019 DIGILAW 171 (KAR)

Mohan H. Handral v. State of Karnataka

2019-01-11

H.P.SANDESH

body2019
ORDER : 1. I have heard the arguments of the petitioner’s counsel and also the learned HCGP for respondent No. 1. Respondent No. 2 is served and did not choose to represent. 2. The petitioner by invoking Section 482 of Cr.P.C. prayed this Court to quash the trial proceedings in CC No. 83/2016 for the offence punishable under Section 19(a) of the Seeds Act, 1966, pending on the file the Civil Judge and JMFC, Bellary. 3. The factual matrix of the case is that respondent No. 2 has lodged a private complaint against this petitioner for the offence punishable under Section 19(a) of the Seed Act, 1966 alleging that he has collected the samples of maize seeds were of inferior quality and percentage of germination is less than the standard germination. On the basis of the said complaint, the learned Magistrate has taken cognizance and issued process against the petitioner. 4. The main contention of the petitioner is that the trial Court has failed to consider the fact that the complaint is lodged with an ulterior motive to harass the petitioner and there are no substantial material evidence against the petitioner to proceed with the case. Further, contention of the petitioner is that one of the farmers came forward to lodge the complaint against this petitioner and no independent mahazar witness are signatory to the mahazar drawn by the respondent. The trial Court has failed to consider that seeds are not tested at Central Seeds Laboratory to get the report on germination percentage and contrary to this, the seeds are tested at Director of Agricultural Assistant cum Seeds Inspector, Seeds Laboratory, Dharwad. Further, the petitioner was deprived of opportunity to get the seeds subject to retest as provided under Section 16 of the Seeds Act, and therefore, respondent No. 2 has violated the provision of Seeds Act, and hence, the same is liable to be quashed. 5. Further, the petitioner was deprived of opportunity to get the seeds subject to retest as provided under Section 16 of the Seeds Act, and therefore, respondent No. 2 has violated the provision of Seeds Act, and hence, the same is liable to be quashed. 5. Petitioner’s counsel in his arguments vehemently contended that the trial Court based on the complaint, was proceeded to take cognizance against the petitioner for the offence punishable under Section 19 of the Act and further, contended that offence invoked against the petitioner is only fine if it is for the first time and if it is second time, punishment is only six months and the very complaint filed by the petitioner that sample was seized on 22.6.2015 and Mahazar was drawn on 29.6.2015 and report was received on 15.7.2015 and a show cause notice was issued on 12.8.2015 and reply was given on 14.8.2015 and complaint was filed on 10.5.2016 almost after one year. Hence, the complaint is barred by limitation. 6. The other contention raised by the petitioner is that under Section 16(2) of the Act a right has been provided to the accused to get the sample reanalyzed by the Central Seed Laboratory shall supersede the report of the Seed Analyst. Though the samples were taken and sent to the analyst and report was received at the earliest, the filing of the complaint is belated, by the time the complaint was filed before the learned Magistrate, the self life of the seeds had taken 9 months especially even after the issuance of the summons as per Section 16(2) of the Act, the accused could not exercise the statutory right provided under the Act as the same would have been referred worthless such, since the petitioner have been deprived of the statutory right provided under the Act, the prosecution is illegal and liable to be set aside. 7. The other contention of the petitioner is that the seeds in respect of which the present prosecution has been lodged already been certified by certification agency as provided under Section 9 of the Act. As per the said certificate issued by the competent certification agency, the seeds in question have been certified that in conformity with the requirement of minimum limited germination. As per the said certificate issued by the competent certification agency, the seeds in question have been certified that in conformity with the requirement of minimum limited germination. Hence, there are no materials to proceed against the petitioner for the offence punishable under Section lodged against the petitioner and hence, the same is liable to be quashed by invoking Section 482 of Cr.P.C. or otherwise it amounts to abuse of process and leads to miscarriage of justice. In support of his contention the counsel relied upon the judgment of this Court reported in........... 8. Per contra, the learned HCGP appearing for respondent No. 1 in his argument contends that this petition is filed under Section 482 of Cr.P.C. for quashing the proceedings and by exercising powers under Section 482 of Cr.P.C. this Court cannot interfere and quash the proceedings thereby depriving the proof and the same is to be substantiated during the trial. In so far as the mandatory requirement is concerned for compliance of Section 16 of the Act he contends that the question of limitation is concerned, particularly for the offence arising under seeds Act, this Court has elaborately considered this aspect as to what is the point of limitation and also as per Section 19 of the Act, hence, all these aspects cannot be considered while considering the matter invoking Section 482 of Cr.P.C. and hence, prayed this Court to reject the petition. 9. Having heard the petitioner’s counsel and also HCGP, this court has to examine, whether this Court can exercise the powers under Section 482 of Cr.P.C. 10. Before adverting to the offence and also the contentions raised by the petitioner, I would like to make a mention in brief the allegation made against the petitioner. The allegation made against the petitioner is that respondent No. 2 has lodged a complaint for the offence punishable under Section 19(a) of the Seeds Act contending that maize seeds were of inferior quality and percentage of germination is less than the standard as germination. Based on the said complaint, the Court below has taken the cognizance against the petitioner. I would like to refer the penal proviso invoked by the complainant under Section 19(a). On reading of the proviso to Section 19 it says: “19. Penalty — If any person:- (a) contravenes any provision of this Act or any rule made thereunder. Based on the said complaint, the Court below has taken the cognizance against the petitioner. I would like to refer the penal proviso invoked by the complainant under Section 19(a). On reading of the proviso to Section 19 it says: “19. Penalty — If any person:- (a) contravenes any provision of this Act or any rule made thereunder. (b) prevents a Seed Inspector from taking sample under this Act. (c) prevents a Seed Inspector from exercising any other power conferred on him by or under this Act, he shall, on conviction, be punishable: (i) for the first offence with fine which may extend to five hundred rupees. (ii) in the event of such person having been previously convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 11. On perusal of the complaint which has been annexed as Annexure-A an allegation is made that this petitioner is the owner and involved in the seeds business and that on 29.6.2015 at around 2 p.m. the petitioner has sold the seeds to distribute the same in favour of the agriculturist and notice was given to him in terms of Section 15(a) and collected the details and seized the samples and same was sent to the analyst. As per the report, the same was not in terms of Section 6(a) and there was a violation of Section 19(a) and hence, he has committed the offence. 12. On perusal of the complaint, there is no any averment with regard to whether this petitioner has committed any offence at the first time or he has committed the offence for the second time and no details. In the absence of any details, this Court has to take note of the penal proviso in respect of the punishment for the first offence which may extend to Rs. 500/-. 13. The main contention of the petitioner is that the Section 468 of Cr.P.C. is applicable to the case on hand to initiate the proceedings and time limitation which prescribed to initiate the proceedings. On perusal of the proviso of Section 468 of Cr.P.C. it reads as follows:- “468. Bar to taking cognizance after lapse of the period of limitation. 13. The main contention of the petitioner is that the Section 468 of Cr.P.C. is applicable to the case on hand to initiate the proceedings and time limitation which prescribed to initiate the proceedings. On perusal of the proviso of Section 468 of Cr.P.C. it reads as follows:- “468. Bar to taking cognizance after lapse of the period of limitation. (1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be:- (a) six months, if the offence is punishable with fine only. (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year. (c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. 14. Section 469 of Cr.P.C. says that: “469. Commencement of the period of limitation - (1) The period of limitation, in relation to an offender, shall commence:- (a) on the date of the offence. (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier. (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded.” 15. (2) In computing the said period, the day from which such period is to be computed shall be excluded.” 15. For having taken note of proviso of Sections 468 and 469 of Cr.P.C. and considering the factual aspects of this case, it is clear that mahazr was conducted on 29.6.2015 and sample was collected on 29.6.2015 and report was received on 15.7.2015 and no doubt the show cause notice was given on 12.8.2015 within a period of one month from the date of receipt of report and reply was given within 2 days i.e. on 14.8.2015, but, complaint was filed given on 10.5.2016. The very filing of complaint is not within the time prescribed under Section 468 of Cr.P.C. and I have already pointed out that offence is taken place on 29.6.2015 and subsequently, when the report has been received that the sample which was seized was not minimum germination and the complaint ought to have been filed within six months and the same has not been filed and prosecution has not been initiated within the time limit of Section 468(1). 16. The other contention that Section 16(2) provides an opportunity to the accused to get the sample reanalyzed by the Central Seed Laboratory and under Section 16(3) of the Act, report of the Central Seed Laboratory shall supersede the report of the seed analyst. Though the samples were taken and sent to the analyst and report was received at the earliest, i.e. on 15.7.2015 the filing of the complaint is belated as contended by the petitioner’s counsel. Though the samples were taken and sent to the analyst and report was received at the earliest, i.e. on 15.7.2015 the filing of the complaint is belated as contended by the petitioner’s counsel. In the case on hand also, the samples were collected on 29.6.2015, mahazar was drawn on 29.6.2015 and analyst report was received on 15.7.2015 and even after the reply of the accused dated 14.8.2015 a complaint was filed on 10.5.2016 and on perusal of the proviso of Section 16(2), it is clear that after the institution of a prosecution under this Act, the accused vender or the complainant may, on payment of the prescribed fee, make an application to the Court for sending any of samples mentioned in clause (a) or class (c) of sub-section (2) of Section 15 to the Central Seed Laboratory for its report and on receipt of the application, the Court shall first ascertain that the mark and the seal or fastening as provided in clause (b) of sub-section (1) of Section 15 or in tact and may then dispatch the sample under its own seal to the Central Seed Laboratory which shall thereupon send its report to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of the analysis. Sub-section 3 says that report sent by the Central Seed Laboratory under sub-section (2) shall supersede the report given by the Seed Analyst under sub-section (1). 17. The main contention of the petitioner before the Court that in view of the filing of the complaint belatedly on 10.5.2016 the right given to the accused to make a request to send the sample for the analysis to the Central Seed Laboratory has been lost since the same ought to have been send within 9 months before the expiry of self life of the seeds and due to the delay, the right of the accused has been taken away and hence, there cannot be any proceedings against this petitioner. 18. For having taken note of the factual aspects of the case and also taking into note of the relevant documents and Mahazar was drawn and sample was taken in the month of June 2015 itself and almost 11 months was taken to file the complaint. 18. For having taken note of the factual aspects of the case and also taking into note of the relevant documents and Mahazar was drawn and sample was taken in the month of June 2015 itself and almost 11 months was taken to file the complaint. First of all offence invoked against the petitioner is first offence, the fine is only punishment and limitation is fixed only six months and complaint is not filed within six months as contemplated under Section 468 (1) of the Cr.P.C. and secondly, the right of the accused also been lost since the self life of seeds expires within 9 months and the complaint is filed after almost 11 months and hence, there is a force in the contention of petitioner’s counsel that first of all the prosecution is made after the period of limitation and also the accused has lost the right to send the samples for reanalyzing the same with the Central Seed Laboratory and hence, I am of the opinion that the petitioner succeeds to quash the proceedings on both the counts and one is under Section 468(1) of Cr.P.C. that the complaint is not within the prescribed limit and also in view of the belated complaint the accused also lost the right under Section 16(2) of the Act and hence, it is a fit to case to exercise the powers under Section 482 of Cr.P.C. to quash the proceedings. 19. Hence, I pass the following: ORDER The petition is allowed. The proceedings initiated against the petitioner is quashed.