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2019 DIGILAW 269 (GUJ)

Chintanbhai Dilipbhai Rajani v. State of Gujarat

2019-03-27

A.P.THAKER

body2019
JUDGMENT : A P Thaker, J. By filing this writ application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused no.3 has prayed to quash and set aside the FIR being C.R.No.II-3566/2013 registered with Prantij Police Station dated 6.6.2013 for the offences under Sections 5, 7, 28 (1) (a), 28 (1) (c) of the Fertiliser (Control) Order, 1985 and also under Sections 3 (2) (d), 7 (1)(a)(ii), 13, 19 and 21 of the Essential Commodities Act, 1955 and under Sections 406 and 420 of the Indian Penal Code as well as the charge-sheet dated 2.1.2014 registered as Criminal Case No.4 of 2014 and all consequential proceedings arising out of the same. 2. It is the case of the applicant that the applicant herein-original accused no.2 had allegedly supplied feritlizer to accused no.1 in breach of the provisions of Sections 5, 7, 28(1) (a), 28(1)(c) of the Fertiliser (Control) Order, 1985. It is further alleged that accused no.1 was selling the fertilizer with brand name D.A.P. And N.P.K. causing economic loss to the agriculturists. It is further alleged that on 16.3.2013, when the complainant was on duty and visited the shop of accused no.1, aforesaid irregularities/illegalities were found. Therefore, the impugned FIR came to be registered with Prantij Police Station. Investigation was completed and charge-sheet came to be filed on 30.12.2013 for the offences punishable under Sections 5, 7, 28 (1) (a), 28 (1) (c) of the Fertiliser (Control) Order, 1985 under Sections 3 (2) (d), 7 (1)(a)(ii), 13, 19 and 21 of the Essential Commodities Act, 1955 and also for the offences punishable under Sections 406 and 420 of the Indian Penal Code. 3. Heard Mr.Jigar Gadhvi, learned advocate for the applicant and Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1-State. 4. Mr.Jigar Gadhvi, learned advocate for the applicant has contended that the present applicant is wrongly shown as an accused and no offence has been committed by the applicant. He further submitted that even the charge-sheet papers also do not reflect involvement of the applicant in any offence. He further submitted that no ingredients for the offence under sections 406 and 420 of IPC can be said to have been made out against the present applicant, as there is no allegation of criminal breach of trust or cheating by the present applicant. He further submitted that no ingredients for the offence under sections 406 and 420 of IPC can be said to have been made out against the present applicant, as there is no allegation of criminal breach of trust or cheating by the present applicant. He also submitted that the present applicant is a producer/manufacturer of certified organic input and not fertilizer, therefore, his activity is not governed by the Fertlizer (Control) Order. Therefore, the invocation of provisions of the Fertiliser (Control) Order, 1985 is erroneous. He submitted that the material that is being produced and supplied to accused no.1 by the petitioner does not fall within the definition of 'fertilizer'. On the carry bag of the material, which has been sold by the applicant, full form of DAP is being explicitly shown as Direct Available Phosphate and Nitrogen Phosphorous Potash and, therefore, it cannot be said that the applicant has committed any fraud or cheating with the agriculturists. He also submitted that as the alleged offences are not at all made out against the present applicant, the continuation of the criminal prosecution against him will be in exercise in futility and the same amounts to abuse of process of law and it will lead to unnecessary harassment to the applicant. In view of above, he prayed to allow present matter by granting the prayer in favour of the applicant. 5. Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 - State has vehemently submitted that the allegations against the present applicant are serious in nature. She submitted that the applicant herein is the manufacturer and original supplier of Gujwell Biotech, which does not possess any license and, therefore, the selling of its products is in contravention of the provisions of the Fertiliser (Control) Order, 1985 and the Essential Commodities Act. She further submitted that even if the case of the applicant is believed, the applicant is required to obtain the license for the Organic Fertlizer, which the petitioner admittedly do not possess. She further submitted that the products sold by the applicant are sold with names, D.A.P., N.P.M. and Liquid D.A.P., which are deceptive in nature. She also submitted that the trial has already commenced and even cross-examination of the complainant is also over. In view of all these, she submitted to reject present application. 6. Heard learned advocates for the parties and perused the material available on record. She also submitted that the trial has already commenced and even cross-examination of the complainant is also over. In view of all these, she submitted to reject present application. 6. Heard learned advocates for the parties and perused the material available on record. Before considering the matter on merits, it would be profitable to refer to the relevant provisions of the Fertiliser (Control) Order, 1985, which are as under:- "2. ........... (oo) Organic fertilizer means substances made up of one or more unprocessed materials of a biological nature (plant/animal) and may include unprocessed mineral materials that have been altered through microbiological decomposition process." 5. Issue of cash/credit memorandum-Every dealer shall issue a cash or credit memorandum to a purchaser of a fertiliser in Form M. 7. Registration of Industrial dealers and authorization of other dealers-No person shall sell, offer for sale or carry on the business of selling of fertilizer at any place as wholesale dealer or retail dealer except under and in accordance with clause 8: Provided that a State Government may, if it considers it necessary or expedient, by notification in the Official Gazette, exempt from the provisions of this clause any person selling fertilizer to farmers in such areas and subject to such conditions as may be specified in that notification." 28. Powers of Inspectors-1. An inspector may, with a view to securing compliance with this Order:- (a) require any manufacturer, +importer, pool handling agency, wholesale dealer or retail dealer to give any information in his possession with respect to the manufacture, storage and disposal of any fertilizer manufactured or, in any manner handled by him; (c) enter upon and search any premises where any fertiliser is manufactured/Imported or stored or exhibited for sale, if he has reason to believe that any fertiliser has been or is being manufactured/imported, sold, offered for sale, stored, exhibited for sale or distributed contrary to the provisions of this Order;" 7. It is admitted by the applicant that the applicant is a producer/manufacturer of certified organic input. So far as The Fertiliser (Control) Order, 1985 is concerned, the same is amended from time to dime. By amendment made in the year 2006, Section 2 (oo) is added, which provides for the definition of "Organic fertiliser". It is admitted by the applicant that the applicant is a producer/manufacturer of certified organic input. So far as The Fertiliser (Control) Order, 1985 is concerned, the same is amended from time to dime. By amendment made in the year 2006, Section 2 (oo) is added, which provides for the definition of "Organic fertiliser". In view of the amendment made in the Fertiliser (Control) Order in 2006, now word "Organic" has been incorporated in the provision, which shows that for dealing with Organic Fertiliser also one has to abide by the provisions of the Fertiliser (Control) Order. Therefore, on this count, offence under the Fertiliser (Control) Order cannot be quashed against the present applicant. 8. So far as allegation regarding other offence are concerned, Sections 406 and 420 of the IPC are also reproduced hereunder:- "406. Punishment for criminal breach of trust.-Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." "420. Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 9. Considering the aforesaid provisions and the facts of the present case, it appears that on the carry bag of the material, which has been sold by the applicant, full form of DAP is being explicitly shown as Direct Available Phosphate and Nitrogen Phosphorous Potash. In view of this, it cannot be said that the applicant has committed any fraud or cheating with the agriculturists. Not only that there is no whisper in the complaint nor there is any evidence to suggest that any offence under these sections has been committed by the applicant. Since ingredients of Sections 406 and 420 of IPC are not attracted, present application is required to be allowed so far as allegations of offences under Section 406 and 420 of IPC against the present applicant are concerned. 10. In view of above discussion, present application is partly allowed. Since ingredients of Sections 406 and 420 of IPC are not attracted, present application is required to be allowed so far as allegations of offences under Section 406 and 420 of IPC against the present applicant are concerned. 10. In view of above discussion, present application is partly allowed. The impugned FIR being C.R. No.II-3566/2013 registered with Prantij Police Station dated 6.6.2013; charge-sheet filed pursuant thereto which culminated into Criminal Case No.4 of 2014 and all other consequential proceedings arising out of the same for the offences under Sections 406 and 420 of the Indian Penal Code are quashed and set aside so far as present applicant-original accused no.2 is concerned. However, the impugned complaint and all other consequential proceedings so far as offences punishable under Sections 5, 7, 28 (1) (a), 28 (1) (c) of the Fertiliser (Control) Order, 1985 and under Sections 3 (2) (d), 7 (1)(a)(ii), 13, 19 and 21 of the Essential Commodities Act, 1955 are concerned, the same shall proceed further. Rule is made absolute to the above extent.