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2024 DIGILAW 866 (AP)

T. Kanna Rao v. State of A. P.

2024-07-30

V.SUJATHA

body2024
ORDER : V. Sujatha, J. The Criminal Petition is filed seeking to quash C.C.No.143/2018 on the file of Principal Junior Civil Judge, Guntur filed against the petitioners/accused for the offences under Section 420 read with 34 of Indian Penal Code, corresponding to Cr.No.293 of 2016 of Lalapet P.S., Guntur Urban. 2. The petitioners herein are the accused Nos. 1 and 2. The 2nd respondent herein is the complainant. On 04.11.2016, the 2nd respondent vide Rc.No.A/28/2014 has submitted a complaint to the Station House Officer, Lalapet Police Station, Guntur, stating that the Gemini Crop Sciences (petitioner No.1 is the manufacturer) has requested the Commissioner and Director of Agriculture for drawal of bio product samples manufactured by the firm duly paying requisite fee of Rs.5,000/- per sample. In pursuance of the same, the Commissioner and Director of Agriculture has issued instructions on 26.11.2015 to draw samples of bio products for analysis. Accordingly, three samples each from seven bio products were drawn on 20.01.2016 from the premises of Gemini Agri Sciences shop situated at Etkuru road, Guntur and were sent to the Deputy Director of Agriculture, Pesticides Testing Laboratory and Coding Centre, through professional courier services on 21.01.2016. Subsequently, the Deputy Director of Agriculture, Pesticides Testing Laboratory and Coding Centre has communicated the analysis report wherein it was revealed that chemical insecticide residues were found in six of the seven samples of the bio products that were taken. 3. On receipt of the said analytical report, the 2nd respondent herein has served the same to the petitioners herein on 20.05.2016. Thereafter, a show cause notice dated 24.09.2016 was issued by the Director of Agriculture to the petitioners herein, seeking their explanation as to why action should not be initiated against them for violating the provisions under Sections 9 and 13 of Insecticides Act, 1968.As such, the respondent No.2 has approached the Lalapet Police station, requesting to file a complaint against the petitioners herein under Section 420 read with Section 34 of the Indian Penal Code. 4. Pursuant to the complaint/report filed by the 2nd respondent herein, the Lalapet Police have registered a case in Cr.No.293/2016 under Section 420 read with 34 of Indian Penal Code and further proceeded for investigation. After completion of investigation, a charge sheet was filed in C.C.No.143 of 2018 on the file of the Principal Junior Civil Judge, Guntur. 5. 4. Pursuant to the complaint/report filed by the 2nd respondent herein, the Lalapet Police have registered a case in Cr.No.293/2016 under Section 420 read with 34 of Indian Penal Code and further proceeded for investigation. After completion of investigation, a charge sheet was filed in C.C.No.143 of 2018 on the file of the Principal Junior Civil Judge, Guntur. 5. Learned counsel for the petitioners, during the course of arguments has submitted that the show cause notice dated 24.09.2016 would itself show that an explanation was sought from the petitioners as to why action should not be initiated against them for violating Section 9 and 13 of Insecticides Act, 1968, but there is no allegation of any dishonest or fraudulent intention at the inception of the alleged offence to make wrongful gain and as such, the charge under Section 420 of I.P.C., will have no legs to stand. He further submitted that when there is no law prohibiting the manufacturer from manufacturing bio products with any fixed percentage of insecticides, a charge sheet under Section 420 I.P.C., without there being any ingredient of the offence alleged against the petitioners is liable to be quashed. Even otherwise, if the allegations made against the petitioners in the charge sheet are proved, they may make out violation of provisions under the Insecticides Act for which penalty shall be imposed under Section 29 of the Insecticides Act, but, no offence under I.P.C., can be made out. As such, the impugned charge sheet in C.C.No.143/2018 and the corresponding F.I.R., in Cr.No.293 of 2016 of Lalapet P.S., Guntur are liable to be quashed. 6. On the other hand, learned Public Prosecutor has submitted that as the analytical report dated 16.05.2016 shows the presence of residues of chemical insecticides in the bio products manufactured and marketed by the petitioners herein, it can be said that the petitioners, in order to gain money wrongfully, are selling the spurious bio products containing residues of insecticides to the traders who in turn sell the same to innocent farmers, who expect that they would get a good crop using such products. As a prima facie case is made out against the petitioners herein, they are liable for punishment under Section 420 read with 34 of Indian Penal Code and the present criminal petition is liable to be dismissed. 7. As a prima facie case is made out against the petitioners herein, they are liable for punishment under Section 420 read with 34 of Indian Penal Code and the present criminal petition is liable to be dismissed. 7. When the criminal petition came up for hearing on 19.06.2019, this Court has passed the following order in I.A.No.1 of 2019 : “…In view of the fact that the learned counsel for the petitioners has made out a prima facie case. More so, about the invocation of provisions of the I.P.C., this Court is of the opinion that there should a stay of all further proceedings in C.C.No.143 of 2018 on the file of the Principal Junior Civil Judge, Guntur for a period of 3 (three) weeks i.e., on 10.07.2019 from today.” 8. Having heard the submissions made by the learned counsel representing both parties and on perusal of the material available on record, the point that arises for consideration is as follows : “Whether the charge sheet in C.C.No.143/2018 on the file of Principal Junior Civil Judge, Guntur filed against the petitioners herein under Section 420 read with 34 of I.P.C., and the corresponding F.I.R.No.293/2016 of Lalapet P.S., Gunturare liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?” 9. Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice. 10. Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows: In “R.P. Kapur v. State of Punjab, AIR 1960 SC 866 ”, the Apex Court laid down the following principles : (i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; (iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. 11. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court as held by the Apex Court in “Mrs. Dhanalakshmi v. R. Prasanna Kumar, AIR 1990 SC 494 ” 12. Keeping in view the above principles, I would like to examine the case on hand. 13. It can be seen that upon the request of the petitioners, the Assistant Director of Agriculture, Guntur drew three samples from each of the seven bio products on 20.01.2016 from the premises of Gemini Agri Sciences, Secunderabad and the same were sent to Deputy Director of Agriculture, Pesticides Testing Laboratory and Coding Center for analysis on 21.01.2016. In turn, an analysis report was communicated which revealed that chemical insecticide residues were found in six of the seven bio products that were sent for analysis. Accordingly, the petitioners were issued a show-cause notice dated 24.09.2016 by the Joint Director of Agriculture, Guntur stating as under : “…Thus it is clear that M/s Gemini Crop Sciences has manufactured & marketed the so called Bio-Products mixing with chemical insecticides which are scheduled under the Insecticides Act, 1968 without valid CIB Registration Certificates & Licenses required and hence the firm has to show cause as to why action should not be initiated against them for violating the provisions under sections 9 & 13 of Insecticides Act, 1968. In obedience of the Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh vide Common Order in W.P.No.25293 of 2014 and batch of writ petitions in 2015, as per Para No.19, Sub Para 5, if any prohibited substance is found, action has to be taken as per the provisions of Insecticides Act 1968 or FCO 1985 accordingly. The explanation of the firm should reach this office within (15) fifteen days from the date of receipt of this notice. The explanation of the firm should reach this office within (15) fifteen days from the date of receipt of this notice. Failure to submit the explanation within the stipulated time will be construed that there is no explanation to offer and action as deemed fit will be initiated in accordance with law.” 14. In pursuance of the said show cause notice, the petitioners have submitted an explanation on 03.11.2016 requesting the Director of Agriculture, Guntur to arrange review of the analysis report once again and to send the samples for re-analysis to another referral laboratory for second opinion before proceeding with further action. It is evident that, immediately i.e. on 04.11.2016, the Assistant Director of Agriculture [R], Guntur has approached the Lalapet Police Station and has registered a case in Crime No.293 of 2016 and thereafter a charge sheet was framed vide C.C.no.143 of 2018 on the file of Principal Junior Civil Judge, Guntur. 15. As can be seen from the show-cause notice dated 24.09.2016, the petitioners were alleged to have violated the provisions under Sections 9 and 13 of Insecticides Act, 1968. For better understanding of the case, Sections 9 and 13 of the Act, 1968 are extracted hereunder : “9. Registration of insecticides.—(1) Any person desiring to import or manufacture any insecticide may apply to the Registration Committee for the registration of such insecticide and there shall be a separate application for each such insecticide: Provided that any person engaged in the business of import or manufacture of any insecticide immediately before the commencement of this section shall make an application to the Registration Committee within a period of 2 [seventeen months] from the date of such commencement for the registration of any insecticide which he has been importing or manufacturing before that date: 3 [Provided further that where any person referred to in the preceding proviso fails to make an application under that proviso within the period specified therein, he may make such application at any time thereafter on payment of a penalty of one hundred rupees for every month or part thereof after the expiry of such period for the registration of each such insecticide.] (2) Every application under sub-section (1) shall be made in such form and contain such particulars as may be prescribed. (3) On receipt of any such application for the registration of an insecticide, the Committee may, after such enquiry as it deems fit and after satisfying itself that the insecticide to which the application relates conforms to the claims made by the importer or by the manufacturer, as the case may be, as regards the efficacy of the insecticide and its safety to human beings and animals, register 1 [on such conditions as may be specified by it] and on payment of such fee as may be prescribed, the insecticide, allot a registration number thereto and issue a certificate of registration in token thereof within a period of twelve months from the date of receipt of the application: Provided that the Committee may, if it is unable within the said period to arrive at a decision on the basis of the materials placed before it, extend the period by a further period not exceeding six months: Provided further that if the Committee is of opinion that the precautions claimed by the applicant as being sufficient to ensure safety to human beings or animals are not such as can be easily observed or that notwithstanding the observance of such precautions the use of the insecticide involves serious risk to human beings or animals, it may refuse to register the insecticide. 2 [(3A) In the case of applications received by it prior to the 31st day of March, 1975, notwithstanding the expiry of the period specified in sub-section (3) for the disposal of such applications, it shall be lawful and shall be deemed always to have been lawful for the Registration Committee to dispose of such applications at any time after such expiry but within a period of one year from the commencement of the Insecticides (Amendment) Act, 1977 (24 of 1977): Provided that nothing contained in this sub-section shall be deemed to make any contravention before the commencement of the Insecticides (Amendment) Act, 1977 (24 of 1977), of a condition of a certificate of registration granted before such commencement, an offence punishable under this Act. (3B) Where the Registration Committee is of opinion that the insecticide is being introduced for the first time in India, it may, pending any enquiry, register it provisionally for a period of two years on such conditions as may be specified by it. (3B) Where the Registration Committee is of opinion that the insecticide is being introduced for the first time in India, it may, pending any enquiry, register it provisionally for a period of two years on such conditions as may be specified by it. (3C) The Registration Committee may, having regard to the efficacy of the insecticide and its safety to human beings and animals, vary the conditions subject to which a certificate of registration has been granted and may for that purpose require the certificate-holder by notice in writing to deliver up the certificate to it within such time as may be specified in the notice.] (4) Notwithstanding anything contained in this section, where an insecticide has been registered on the application of any person, any other person desiring to import or manufacture the insecticide or engaged in the business of, import or manufacture thereof shall on application and on payment of prescribed fee be allotted a registration number and granted a certificate of registration in respect thereof on the same conditions on which the insecticide was originally registered. 13. Grant of licence.—(1) Any person desiring to manufacture or to sell, stock or exhibit for sale or distribute any insecticide 1 [or to undertake commercial pest control operations with the use of any insecticide], may make an application to the licensing officer for the grant of a licence: Provided that any person engaged in the business of manufacturing or selling, stocking or exhibiting for sale or distributing any insecticide immediately before the commencement of this section shall make an application to the licensing officer for the grant of a licence within a period of 2 [seventeen months] from the date of such commencement: 1 [Provided further that any person engaged in the commercial pest control operations immediately before the commencement of the Insecticides (Amendment) Act, 1977 (24 of 1977), shall make an application to the licensing officer for the grant of a licence within a period of six months from the commencement of the said Act.] (2) Every application under sub-section (1) shall be made in such form and shall contain such particulars as may be prescribed. (3) On receipt of any such application for the grant of a licence, the licensing officer may grant a licence in such form, on such conditions and on payment of such fee as may be prescribed. (3) On receipt of any such application for the grant of a licence, the licensing officer may grant a licence in such form, on such conditions and on payment of such fee as may be prescribed. (4) A licence granted under this section shall be valid for the period specified therein and may be renewed from time to time for such period and on payment of such fee as may be prescribed: Provided that where a licence has been granted to any person who has made an application under 3 [the first proviso or, as the case may be, the second proviso] to subsection (1), that licence shall be deemed to be cancelled in relation to any insecticide, the application for registration whereof has been refused or the registration whereof has been cancelled, under this Act, with effect from the date on which such refusal or cancellation is notified in the Official Gazette. 1 [(5) In prescribing fees for the grant or renewal of licences under this section, different fees may be prescribed for the sale or distribution of insecticides for purposes of domestic use and for other purposes.” 16. The respondents, in the show-cause notice, have also relied upon a judgment dated 10.07.2015 passed by this Court in W.P.No.25293 of 2014 (batch). For better appreciation, sub-paragraph Nos. "iv" "v" and "viii" of paragraph No.19 of the aforesaid judgment is extracted hereunder : “(iv) It is for the authorities to inspect the bio-products in the location of the manufacturer prior to its dispatch to the dealer or in the location of the dealer and take sample thereof in order to verify whether any such product contains harmful substances attracting the provisions of Insecticides Act, 1968 or used as a fertilizer violating the provisions of Fertilizer (Control) Order, 1985. The sample of the product shall be collected from the said source by the authorities under the signature of the persons dealing with bio-products and the authority who is collecting for the purpose of sending it to the appropriate Laboratory in order to verify the contents of the said product. The sample of the product shall be collected from the said source by the authorities under the signature of the persons dealing with bio-products and the authority who is collecting for the purpose of sending it to the appropriate Laboratory in order to verify the contents of the said product. (v) From a copy of the report if any prohibited substance is found by the authority, the authority shall issue a notice along with a copy of the report to the persons dealing with the product and take necessary action against such persons either under the provisions of Insecticides Ac, 1968 or Fertilizer (Control) Order, 1985. After receipt of the explanation from the person, the authority can pass appropriate orders under the provisions of the said enactments. (viii) The respondents shall not violate the law and resort to unnecessary harassment of the manufacturers or dealers in a routine manner.” 17. As can be seen from the aforesaid extract of the judgment dated 10.07.2015, if a prohibited substance is detected in a product, the authority will have to issue a notice and provide a copy of the report to those handling the product. After considering any explanation provided by the person, they will then take necessary action against those individuals under the Insecticides Act, 1968, or the Fertilizer (Control) Order, 1985. It is also evident from sub-paragraph "viii" of the aforesaid judgment that the authorities were directed not to violate the law and resort to unnecessary harassment of the manufacturers or dealers in a routine manner. 18. However, in the instant case, the respondent authorities have issued a show cause notice to the petitioners herein and have sought an explanation from the petitioners as to why action should not be initiated against them for violating Section 9 and 13 of the Insecticides Act, 1968. 18. However, in the instant case, the respondent authorities have issued a show cause notice to the petitioners herein and have sought an explanation from the petitioners as to why action should not be initiated against them for violating Section 9 and 13 of the Insecticides Act, 1968. In pursuance of the same the petitioners have submitted an explanation on 03.11.2016 requesting the Director of Agriculture, Guntur to arrange review of the analysis report once again and to send the samples for re-analysis to another referral laboratory for second opinion before proceeding with further action, but, on receipt of the explanation, instead of initiating further action against them as proposed under the provisions of Insecticides Act, 1968, have filed a complaint before the Police which was registered as Crime No.293 of 2016 at Lalapet Police Station, Guntur and subsequently, the impugned charge sheet has been framed on the file of the Principal Junior Civil Judge, Guntur, for the offences punishable under Section 420 read with 34 of IPC. 19. Section 420 of I.P.C. deals with Cheating and dishonestly inducing delivery of property. The word “Cheating” is defined under Section 415 of I.P.C and it is as follows : “415. Cheating:- Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". The essential ingredients to constitute the offence of cheating are: (i) There should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) In cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 20. 20. While dealing with the offence punishable under Section 420 of I.P.C., the Hon'ble Apex Court in “Vesa Holdings Private Limited & Another Vs. State of Kerala & Others, (2015) 8 SCC 293 ”, held as follows : “It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. The Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.” 21. In the present case, there is nothing to show that at the very inception there was any intention on behalf of the petitioners to cheat, which is a condition precedent for an offence under Section 420 I.P.C. Further, there is no inducement to deliver any property to any person or deceiving any person to do or omit to do anything which he would not do or omit as defined in Section 415 of I.P.C. But, however, the case of respondent No.2 is only that the petitioners are manufacturing bio-products that contain chemical insecticide residues. 22. When there is an alternative remedy available under the provisions of the Insecticides Act, 1968, as per the judgment referred by the respondents themselves in their show-cause notice, the respondents have wrongly initiated criminal proceedings against the petitioners herein which is nothing but abuse of process of court. 22. When there is an alternative remedy available under the provisions of the Insecticides Act, 1968, as per the judgment referred by the respondents themselves in their show-cause notice, the respondents have wrongly initiated criminal proceedings against the petitioners herein which is nothing but abuse of process of court. As continuance of criminal proceedings against the petitioners may amount to the abuse of the process of the court and as the quashing of the impugned proceedings would secure the ends of justice, this Court feels that the charge sheet in C.C.No.143 of 2018 on the file of Principal Junior Civil Judge, Guntur is liable to be quashed. 23. Accordingly, this criminal petition is allowed and the charge sheet in C.C.No.143 of 2018 on the file of Principal Junior Civil Judge, Guntur is hereby quashed. Miscellaneous petitions pending, if any, in the Criminal Petition, shall stand closed.