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2019 DIGILAW 925 (BOM)

JUZAR KHORAKIWALA v. STATE OF MAHARASHTRA

2019-04-03

MANGESH S.PATIL, T.V.NALAWADE

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JUDGMENT : T.V. Nalawade, J. The petition is filed under Articles 226 and 227 of the Constitution of India for relief of quashing of F.I.R. No.339/2018 registered with Shahada Police Station District Nandurbar at the instance of respondent No.2 District Quality Control Inspector working in the office of District Superintending Agriculture Officer Nandurbar and the crime is registered for offences punishable under section 420 read with 34 of Indian Penal Code, Section 3(2) of the Essential Commodities Act, Clauses 7,12,13(2) and 19(a),(b)(c) (i) to (viii) of the Fertiliser (Inorganic, Organic or Mixed) (Control) Order 1985. Both the sides are heard. 2. Respondent No.2 visited the premises of New Saifi Machinery and Pesticide, Patel Market, Shahada on 18-8-2018 at about 4.00 p.m. for routine inspection of the articles which were being sold from that centre. It was noticed that in the premises, unregistered products like Amaze X Seaweed Granules and Biozyme Granules were kept there for sale and the name of the manufacturer was printed as Biostadt India Ltd Mumbai. As the respondent No.2 suspected that in the unregistered products there was sale of probably chemical fertilizer by manufacturing chemical fertiliser he collected samples of both the aforesaid products as provided in the Fertilizer (Inorganic, Organic Or Mixed) (Control) Order 1985 (hereinafter referred to as "the Order"). He had feeling that inorganic fertiliser like NPK and Ca, Mg, S were being sold under the aforesaid names. He sent the samples to Fertilizer Control Laboratory Nasik which is notified under notification dated 25-11-1987 as provided under the Order. 3. The report of the laboratory in respect of the products sold under different names in four samples was as under. I. Amaze X granules (Seaweed) : (i) Calcium (ca) .. 5.31% (ii) Magnesium (mg) .. 1.12% II. Biozyme: (i) Calcium (ca) .. 4.87% (ii) Magnesium (mg) .. 0.97% III. Amaze X Granules: (i) total Nitrogen (N) .. 0.16% (ii) total Phosphate .. 0.62% (iii) Water Soluble Potash (K20) .. 5.24% IV. Biozyme : (i) Total Nitrogen (N) .. 0.16% (ii) total Phosphate .. 0.67% (iii) Water Soluble Potash (K20) .. 4.93% 4. The laboratory test revealed that under the aforesaid names unregistered product, chemical fertiliser was being sold by mixing it in other materials and so there was violation of the provisions of the Order. 5. 5.24% IV. Biozyme : (i) Total Nitrogen (N) .. 0.16% (ii) total Phosphate .. 0.67% (iii) Water Soluble Potash (K20) .. 4.93% 4. The laboratory test revealed that under the aforesaid names unregistered product, chemical fertiliser was being sold by mixing it in other materials and so there was violation of the provisions of the Order. 5. Under the provisions of aforesaid Order, first show cause notices were given to the manufacturer and the aforesaid vendor. Both, the manufacturer and the vendor replied the notices. The vendor contended that he had no role in the manufacturing activity and he was selling the product which was in packed condition and he had no knowledge about the contents of the packets. This explanation was accepted by the department and decision was taken not to act against the vendor. However, on 30-8-2018 the product which was found with the vendor of worth more than Rs.80,000/- was seized as there was report of the laboratory of aforesaid nature. 6. The inquiry revealed that present petitioner No.1 was the Managing Director of Biostadt India Ltd. Mumbai and petitioner No.2 was Senior Manager of this private limited company and the department formed opinion that they were responsible for commission of the offences under the Order read with the provisions of the Essential Commodities Act and the offence of fraud against farmers was also committed and so report was given on 5-10-2018 to police. 7. Many points were argued by the learned Senior Counsel for the petitioners as under : (i) The product sold under the aforesaid two names is not covered under the Order; (ii) The respondent No.2 did not send the samples to the laboratory as per the procedure; and, (iii) In Civil Writ Petition No.3683/2018 a Division Bench at the Principal Seat has granted stay to the aforesaid two show cause notices issued against the petitioners. 8. The learned Additional Public Prosecutor submitted that under the guise of plant growth stimulant the petitioners were selling chemical fertiliser and that has become clear in the laboratory test. 8. The learned Additional Public Prosecutor submitted that under the guise of plant growth stimulant the petitioners were selling chemical fertiliser and that has become clear in the laboratory test. He submitted that the purpose behind the show cause notices was different like seizure of the product which contravenes provisions of the Order and prevention of the manufacturing activity of such product and so the relief if any granted in favour of the petitioners in the civil writ petition cannot come in the way of the prosecution of the petitioners. He submitted that the crime was registered on 5-10-2018 and the proceeding was filed on 31-10-2018 at the Principal Seat by the petitioners. He took this Court through the printed matter of the cover of the packet showing the contents and he submitted that the product was not sold only as seaweed in view of the representation made on the packets by the manufacturer and so there is the admission that the packets contained other materials. 9. It can be said that by advancing arguments from different angles the petitioners tried to create confusion when there are circumstances which can be used under the provisions of the Act to infer that prima facie there is breach of the provisions of the Order and the offence under the Essential Commodities Act is committed. The learned Senior Counsel took this Court even through the decision taken by the Central Government for taking steps for laying down the procedure in respect of the products like seaweed and copy of the decision taken in February 2012 is produced on the record. At the outset it needs to be mentioned that a committee is constituted only in respect of the products like seaweed and not in respect of the product which contains other materials like the material found in the present matter. In any case, even if some committee is constituted to lay down the procedure it is the duty of the Court to ascertain as to whether the activity involved amounts to offence under the general provisions of law and whether there is material to make out prima facie case of commission of the offence under the Order. 10. This Court has gone through the provisions of the Order. The Order is issued in exercise of powers conferred by section 3 of the Essential Commodities Act 1955 by the Central Government. 10. This Court has gone through the provisions of the Order. The Order is issued in exercise of powers conferred by section 3 of the Essential Commodities Act 1955 by the Central Government. In clause 2(h) of the Order the definition of "fertiliser" is given and it is as under. "(h) "Fertiliser" means any essential substance, either in straight or mixed form and derived from either inorganic, organic or mixed sources, that is used or intended to be used to provide essential plant nutrients or beneficial elements or both for the soil or for the crop or makes essential plant nutrients available to the plants either directly or by biological process or by both in the soil or plant as notified from time to time by Central Government and specified in the schedules appended to this order or as may be notified by the State Governments. Explanation.-- For the purpose of Fertiliser,-- (i) 'the essential plant nutrients" include Primary Nutrients (Nitrogen, Phosphorous and Potassium), Secondary Nutrients (Calcium, Magnesium and Suplhur) and Micro Nutrients (Zinc, Manganese, Copper, Iron, Boron and Molybdenum); (ii) "Beneficial element" means any element as notified by the Central Government from time to time." The definition is sufficient to explain that the product which is being sold may be either in straight or mixed form and it may be derived from organic, inorganic or mixed sources. The purpose for the use which is represented is important. In the same way the contents of the product are important and they are mentioned in the definition of fertiliser. The explanations (i) and (ii) show that if primary nutrients like nitrogen, phosphorous and potassium and secondary nutrients like calcium, magnesium, suplhur etc. are found then it can be treated as a fertiliser. 11. In clause 2 (k) definition of "granulated mixture" is given and it is as under. "(k) "granulated mixture" means a mixture of fertilisers made by intimately mixing two or more fertilisers with or without inert material and granulating them together, without involving any chemical reaction." 12. In sub-clause (m) definition of "manufacturer" is given and it runs as under. "(m) "manufacturer/importer" means a person who produces fertilizers or mixtures of fertilisers and the expression manufacture/import with its grammatical variations shall be construed accordingly." 13. In sub-clause (oo) definition of "organic fertiliser" is given and it is as under. In sub-clause (m) definition of "manufacturer" is given and it runs as under. "(m) "manufacturer/importer" means a person who produces fertilizers or mixtures of fertilisers and the expression manufacture/import with its grammatical variations shall be construed accordingly." 13. In sub-clause (oo) definition of "organic fertiliser" is given and it is as under. "(oo)"organic fertiliser" 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." 14. The definition of 'prescribed standard" given in sub-clause (q) is also important and it is as under. "(oo)"organic fertiliser" 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." 14. The definition of 'prescribed standard" given in sub-clause (q) is also important and it is as under. "(q) "prescribed standard" means,-- (i) in relation to fertiliser included in column 1 of Part A of Schedule I, the standard set out in the corresponding entry in column 2, subject to the limits of permissible variation as specified in Part B of that Schedule, and (ii) in relation to a mixture of fertilisers, the standard set out in respect of that mixture under subclause (1) of clause 13 by the Central Government, subject to the limits of permissible variation as specified in Part B of Schedule I; (iii) in relation to a mixture of fertilisers, the standard set out in respect of that mixture under subclause (2) of clause 13 by the State Government, subject to the limits of permissible variation as specified in Part B of Schedule I; (iv) in relation to a bio-fertiliser included in column 1 of Part A of Schedule III, the standard set out in the corresponding entry in column 2, subject to the limits of permissible variation as specified in Part B of that Schedule; (v) in relation to an organic fertiliser included in column 1 of Part A of Schedule IV, the standard set out in the corresponding entry in column 2, subject to the limits of permissible variation as specified in Part B of that Schedule; (vi) in relation to a non-edible de-oiled cake, fertilizer specified in column (2) of Part A of Schedule V, the standard set out in the corresponding entry in column (2) of the said part, subject to the limits of permissible variation as specified in Part B of the said Schedule; (vii) prescribed standard means in relation to Customised Fertilizers, standards set out in respect of Customised Fertilizers under clause 20-B by the Central Government, subject to limits of permissible variation as specified in Part B of Schedule I." 15. In clause 12 of the Order restrictions are given on preparation of mixtures of fertilisers and the provision runs as under. "12. In clause 12 of the Order restrictions are given on preparation of mixtures of fertilisers and the provision runs as under. "12. Restriction on preparation of mixtures of fertilisers.-- No person shall carry on the business of preparing any mixture of fertilisers, special mixture of fertiliser, except under and in accordance with the terms and conditions of a certificate of manufacture granted to him under clause 15 or 16." Thus, the mixture prepared can be only in accordance with the certificate of manufacture granted under clauses 15 or 16 of the Order. Clauses 15 and 16 are as under. "15. Grant or refusal of certificate of manufacture for preparation of mixture of fertilisers. (1) On receipt of an application under clause 14, the registering authority shall, by order in writing, either grant or refuse to grant the certificate of manufacture in respect of any mixture of fertiliser or special mixture of fertiliser and shall, within forty-five days from the date of receipt of the application, furnish to the applicant a copy of the order so passed. (2) Where an application for a certificate of manufacture for mixture of fertiliser is not refused under sub-clause (1), the registering authority shall, within forty-five days from the date of receipt of the application, grant a certificate of manufacture in Form F and where an application for a certificate of manufacture for a special mixture is not refused under that sub-clause, such authority shall, within forty-five days from the date of receipt of the application, grant a certificate of manufacture to the applicant in Form F." "16. Conditions for grant of certificate of manufacture in respect of special mixture of fertilisers and period of validity of such certificate.-- (1) No certificate of manufacture in respect of any special mixture of fertilisers shall be granted to an applicant unless he holds a valid certificate of manufacture under this Order for any mixture of fertilisers. (2) Every certificate of manufacture granted in respect of any special mixture of fertilisers shall be valid for a period of six months from the date of its issue: Provided that the registering authority may, if it is satisfied that it is necessary so to do, extend the said period to such further period or periods as it may deem fit, so, however, that the total period or periods so extended shall not exceed twelve months." 16. If one goes through Form F it can be said that only that product which is mentioned in the certificate can be manufactured when certificate is given in Form F. Further the conditions given in clause 16 also need to be complied with. 17. In clause 13 of the Order standards of mixtures of fertilisers are given and the clause is as under. "13. Standards of mixtures of fertilisers.-- (1) Subject to the other provisions of this Order,-- (a) no person shall manufacture any mixture of fertilisers whether of solid or liquid fertilisers specified in Part A of Schedule I of the Order unless such mixture conform to the standards set out in the notification to be issued by the Central Government in the Official Gazette; (b) no person shall manufacture any bio-fertiliser unless such bio-fertiliser conforms to the standards set out in the Part A of Schedule III; (c) no person shall manufacture any organic fertiliser unless such organic fertiliser conforms to the standards set out in Part A of Schedule IV. (2) Subject to the other provisions of this Order, no person shall manufacture any mixture of fertilisers unless such mixture conforms to the standards set out in the notification to be issued by the State Government in the Official Gazette. Explanation.-- For the purposes of this sub-clause, mixture of fertilisers shall not include liquid fertilizers and 100% water soluble fertilisers, containing N.P.K. (3) omitted. (4) No certificate of manufacture shall be granted in respect of any mixture of fertilisers which does not conform to the standards set out in the notification referred in sub-clause (1) or (2); (5) Nothing in this clause shall apply to special mixtures of fertilisers." 18. Thus, if a person wants to manufacture organic fertiliser the product should conform with the standards set out in Part A of Schedule I and if his product is of other nature the product should conform with the standards set out in other parts of Schedule I and Schedule III. For getting the certificate of manufacture for production of any mixture, the conditions mentioned in clause 14 need to be complied with. Clause 14 runs as under. "14. For getting the certificate of manufacture for production of any mixture, the conditions mentioned in clause 14 need to be complied with. Clause 14 runs as under. "14. Application for certificate of manufacture of mixtures of fertilisers.-- (1) Every person desiring to obtain a certificate of manufacture for preparation of any mixture of fertilisers or special mixture of fertilisers shall possess such qualifications as may be prescribed for this purpose by the State Government or shall employ a person possessing such qualification for the preparation of such mixture and possess the minimum laboratory facility as specified in clause 21-A of this Order. (2) An applicant for a certificate of manufacture for preparation of mixture of fertilisers or special mixture of fertiliser shall make an application to the registering authority - (a) if he is an applicant for a certificate of manufacture for any mixture of fertilisers, in Form D, in duplicate, together with the fee prescribed therefor under clause 36, or (b) if he is an applicant for a certificate of manufacture for any special mixture, in Form D, in duplicate, together with the fee prescribed therefor under the said clause 36 and an attested copy of the requisition of the purchaser." 19. Form D contains the declarations which need to be made for getting the certificate. Form F is also there if the manufacturer wants certificate in respect of granulated or special mixture or organic fertiliser. Thus in both the cases viz. the case of organic fertiliser or inorganic fertiliser the aforesaid procedure needs to be followed. In the present matter, admittedly no such procedure was followed. A weak attempt was made for the petitioners to show that in the past applications were given to the concerned authority to collect information whether registration of such product is required. Copy of the application is not there and it is easily inferable that the petitioners had informed that they were selling seaweed and not the product like the product tested in the present matter. The factory where the manufacturing activity is going on needs to have the facility of laboratory as provided in clause 21-A of the Order. Thus, the Order expects that there is strict compliance of the standards mentioned for various fertilisers in the Order and it also prohibits the manufacture and sale of the product which contravenes the provisions of the Order. 20. Thus, the Order expects that there is strict compliance of the standards mentioned for various fertilisers in the Order and it also prohibits the manufacture and sale of the product which contravenes the provisions of the Order. 20. For considering the contentions of the petitioners the definitions of "bio-fertiliser", "certificate of source" and "customised fertiliser" given in sub-clauses (aa), (b) and (ee) of clause 2 can be seen and if these definitions are seen it cannot be said that the product which was being sold by the petitioners does not fall strictly under the definition of "bio-fertiliser or organic fertilizer. For selling the material as organic fertiliser the materials need to be unprocessed mineral materials though it may have altered through microbiological decomposition process. If various Schedules are perused carefully which prescribe standards, it can be seen that the contents of bio-fertiliser or organic fertiliser are different from chemical fertiliser. 21. The learned Senior Counsel for the petitioners submitted that the officer ought to have sent the samples for testing on the basis of the contents mentioned on the covers of the packet but he sent the samples for ascertaining as to whether they contain components of chemical fertiliser. It is true that the officer had suspicion that the product contained components of chemical fertiliser and for ascertaining that he sent the samples. The submissions made for the petitioners cannot be accepted as the product was not registered and now there is allegation that under the guise of unregistered product the petitioners were selling chemical fertiliser. The submissions made of aforesaid nature can be considered only if the product is registered and there is suspicion that the product does not conform to the standards given in the Order. The further submission made by the learned Senior Counsel that the laboratory itself was not notified under the Order is not acceptable as a copy of the notification dated 22-11-1987 in this regard came to be produced. 22. In view of the report of the laboratory and the representation made on the packets by the petitioners it can be said that false representation was made on the packets by the petitioners. These days farmers are inclined to use bio-fertiliser and organic fertiliser to see that quality of their land is improved and further damage to the land is not caused. These days farmers are inclined to use bio-fertiliser and organic fertiliser to see that quality of their land is improved and further damage to the land is not caused. Further, ideally the farmers are expected to get soil tested and use the fertilisers and particularly chemical fertiliser as per the needs of nutrients. In view of these circumstances it can be said that the petitioners were committing the offence of fraud by making false representation to the farmers. In view of the report of the laboratory, it can be said that registration ought to have been obtained, certificate ought to have been obtained in respect of the product and the product ought to have been in conformity with the standards given under the Order. Nothing of that sort is there and there is breach of the relevant provisions of the Order from the petitioners. 23. The submission made by the learned Senior Counsel for the petitioners that as in Civil Writ Petition No.3683/2018 relief of stay is granted in favour of the petitioners, manufacturer in respect of the show cause notices, it is not possible to register the crime and to try the petitioners for the aforesaid offences is not at all acceptable. The purpose of show cause notice issued to the petitioners is different. The purpose is the prevention of manufacture of such bogus fertiliser and in case registration is obtained or certificate is obtained action can be taken in respect of the registration and the certificate. For starting prosecution for breach of the Order which is punishable under the provisions of the Essential Commodities Act, no such notice is necessary. In view of this circumstance, even if it is presumed that stay is given to the aforesaid show cause notices by the Division Bench at the Principal Seat, that stay cannot come in the way of filing of the criminal case against the petitioners and also the company. Considering the posts of the petitioners, described in the F.I.R., which is not disputed, it can be said that they are actively involved in the manufacturing activity. No defence of any other nature is taken in the present matter. Other defence like the information supplied by exporter of other country about seaweed and the possibility that seaweed was imported by the petitioners cannot be considered at this stage. No defence of any other nature is taken in the present matter. Other defence like the information supplied by exporter of other country about seaweed and the possibility that seaweed was imported by the petitioners cannot be considered at this stage. In any case in view of the components found in the samples that defence may not be available in future also. This Court holds that there is more than sufficient material to make out prima facie case for the offences mentioned in the F.I.R. and it is not possible to quash and set aside the F.I.R. In the result, the petition stands dismissed. Interim relief is vacated. Learned counsel for the petitioners requests for extension of interim relief. The request is refused.