SCR.A/259/1999 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No.259 of 1999 For Approval and Signature: HONOURABLE JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PANKAJKUMAR MUKUNDLAL PATEL - PETITIONER(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR ASHOK D SHAH for Petitioner(s) : MR.MR MENGDE LD.ADDITIONAL PUBLIC PROSECUTOR for Respondent - 1 MR. FOR respondent(s)2-3 ========================================================= CORAM : HONOURABLE JUSTICE H.N. DEVANI Date :07/01/2008 ORAL JUDGMENT 1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:- SCR.A/259/1999 2/13 JUDGMENT “11(A). That the Hon'ble Court may be pleased to issue writ of mandamus to the Investigating officer of Devgadhbaria police station and stop the further investigation in Crime Register No.II- 33/99 registered at Devgadhbaria police station on 10th March, 1999; and further quash the registration of First Information against the accused. (B) That the Hon'ble Court may further be pleased to direct the Investigating Officer of Devgadhbaria police station investigating into the said Crime Register No.II-33/99 to abstain from carrying on further investigation and effecting arrest in pursuance to that investigation against the petitioner accused; (C) That the Hon'ble Court may be pleased to stay the investigation in Crime Register No.II-33/99 of Devgadhbaria police station during the pendency of this petition; (D) That the Hon'ble Court may be pleased to direct the complainant and/or the State Government to pay appropriate compensation for lodging of the criminal complaint against the petitioner accused at Devgadhbaria police station and thereby causing mental harassment; and (E) That any just and proper order may be passed. 2. The facts of the case stated briefly are that pursuant to an order dated 08.03.1999 passed by the Collector, Dahod, a complaint was lodged at Devgadhbaria Police Station on 10.03.1999, which SCR.A/259/1999 3/13 JUDGMENT was registered as Crime Register No.II-33/99 wherein, the petitioner was arraigned as the sole accused. It was the case of the complainant that there is a petrol/diesel pump in the name and style of M/s.R.M. Shukla having Retail Outlet Licence No.16/81 valid up to 31st December, 2000. That the Director, Civil Supplies Office, Gandhinagar had conducted inquiry on 29th October, 1998 and 3rd November, 1998 at M/s.R.M. Shukla and taken a sample of diesel for analysis. The said sample was forwarded to the Forensic Science Laboratory at Ahmedabad, where, on analysis, it was found that there is a difference in the diesel density. It was thus the case of the complainant that the sample of diesel was not conforming to the standards as required as per diesel fuel specifications and accordingly, there was a contravention of provisions of the Motor Spirit and High-speed Diesel (Prevention of Malpractice in Supply and Distribution) Order, 1990. It was thus the case of the complainant that the stock of diesel was found to be adulterated and that the accused had committed SCR.A/259/1999 4/13 JUDGMENT breach of the above referred Order and thus contravened the provisions of Section 3 read with Section 7 of the Essential Commodities Act, 1955 (the Act). 3. Being aggrieved by the lodging of the aforesaid complaint wherein he has been arraigned as the sole accused, the petitioner has filed the present petition challenging the same. 4. Heard Mr.A.D. Shah, learned advocate for the petitioner and Mr.M.R. Mengdey, learned Additional Public Prosecutor on behalf of the respondent-State of Gujarat. 5. Mr.A.D. Shah, learned advocate for the petitioner has vehemently assailed the action of the respondents in arraigning the petitioner as an accused in the First Information Report lodged in respect of the inquiry made on 29th October, 1998 and 3rd November, 1998 at the premises of M/s.R.M. Shukla. SCR.A/259/1999 5/13 JUDGMENT 6. It was submitted that M/s.R.M. Shukla is owned by one Prakash Gajendra Shukla. However, somewhere on 22nd March, 1991, Shri Pareshkumar Mukundlal Patel's name was entered as 'Vahivat Karta' and on 6th January, 1997, the name of Pareshkumar Mukundlal Patel was deleted and, the name of the petitioner – Pankajkumar Mukundlal Patel was entered in the licence of M/s.R.M. Shukla. Thereafter, the name of the petitioner was deleted and Shri Nileshkumar Ratilal Parmar was shown as 'Manager'. Thus, from 17th November, 1997, the petitioner was not in-charge of the affairs of M/s.R.M. Shukla. 7. Drawing attention to the seizure order dated 29th October, 1998 made by the Deputy Director, Civil Supplies, Gandhinagar, it was pointed out that the same was addressed to Shri Nileshkumar Ratilal Parmar as Manager of M/s.R.M. Shukla. It was further pointed out that pursuant to the inquiry by communication dated 11.11.1998, the Assistant Director had called upon Shri Nileshkumar Ratilal Parmar to produce the record SCR.A/259/1999 6/13 JUDGMENT and remain present before the authority. It was further pointed out that in his reply dated 13th November, 1998, said Nileshkumar Ratilal Parmar had informed the Assistant Director that the petitioner was neither the owner nor the administrator of the Pump and that nothing to do with M/s.R.M. Shukla Pump. Attention was drawn to the order dated 29th December, 1998 which is addressed to Shri Prakash Gajendra Shukla and Shri Nileshkumar Ratilal Parmar whereby, the petrol/diesel pump retail licence No.16/81 has been suspended. It is accordingly submitted that all proceedings in respect of the inquiry have been initiated against the proprietor of the firm and the Manager. However, the First Information Report has been lodged against the present petitioner who had nothing to do with the firm in question. 8. Learned advocate submitted that the petitioner was not in charge of the petrol/diesel pump since 17th November, 1997 and that for an incident subsequent thereto, the complaint had SCR.A/259/1999 7/13 JUDGMENT been filed, that too solely against the petitioner. It was urged that Prakash Gajendra Shukla as proprietor and Nileshkumar Ratilal Parmar as Manager are the persons who were in- charge and would accordingly be responsible for any irregularity or offence in respect of M/s.R.M. Shukla. It was further submitted that registration of offence against the petitioner was not justified as the same was not covered under the provisions of Section 10 of the Act. Drawing attention to the provisions of Section 10 of the Act, it was submitted that it is only such person who at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention. It was submitted that the petitioner was neither in- charge nor in any manner responsible for the business of the company at the time when the contravention was committed and accordingly, the provisions of Section 10 are not attracted qua the petitioner. In conclusion, it was submitted SCR.A/259/1999 8/13 JUDGMENT that the complaint against the petitioner is absolutely without any justifiable ground and filing of such complaint is abuse of the process of investigation and accordingly, the same deserves to be quashed. 9. Mr.M.R. Mengdey, learned Additional Public Prosecutor had placed reliance upon the two affidavits-in-reply filed by the Mamlatdar, Civil Supplies, Devgadhbaria. It was submitted that Prakash Gajendra Shukla was owner of M/s.R.M. Shukla petrol-pump and unauthorisedly and without consent or permission of the Government, sold the same to Shri Mukundlal C. Patel by way of power- of-attorney. That, at the time of inspection, it was found that the legal heir of Mukundlal C. Patel viz. Mr.Pankajkumar Mukundlal Patel was in- charge of the administration and was holding the business of the petrol-pump. It was, accordingly, submitted that the petitioner was acting as proprietor of M/s.R.M. Shukla petrol/diesel pump and was involved in adulterating the diesel and had accordingly committed breach of Sections 3 SCR.A/259/1999 9/13 JUDGMENT and 7 of the Act. It was argued that the complaint has rightly been lodged against the petitioner who had become the owner of the petrol pump in question. 10. Having considered the submissions advanced by the learned advocates for the parties and upon perusal of the record of the case, it is apparent that the name of the petitioner had been deleted from the licence of M/s.R.M. Shukla on 17.11.1997 and the name of Nileshkumar Ratilal Parmar had been entered as Manager. Pursuant to the inquiry conducted by the Director, Civil Supplies Office, Gandhinagar, all communications have been addressed to Shri Nileshkumar Ratilal Parmar as Manager or to both Prakash Gajendra Shukla as owner and Nileshkumar Ratilal Parmar as manager of M/s.R.M. Shukla. The reply dated 13th November, 1998 given by Nileshkumar Ratilal Parmar to the letter dated 11th November, 1998 makes it amply clear that it was brought to the notice of the authorities that the petitioner was neither the owner of the pump nor an administrator thereof SCR.A/259/1999 10/13 JUDGMENT and that he had nothing to do with M/s.R.M. Shukla petrol/diesel pump. In fact, even the order dated 29.12.1998 whereby the licence of the firm was suspended is addressed to Prakash Gajendra Shukla and Nileshkumar Ratilal Parmar. Thus, it is amply clear that the authorities were well aware that Prakash Gajendra Shukla is the owner/proprietor of the firm in question and that Nileshkumar Ratilal Parmar is the Manager thereof. 11. In the background of the aforesaid facts, it is apparent that as on the date when the inquiry was conducted and the sample of diesel was seized, the petitioner was not in any manner concerned with the firm in question. The learned advocate for the petitioner is therefore, justified in contending that only the proprietor i.e. Prakash Gajendra Shukla and person in-charge i.e. Nileshkumar Ratilal Parmar could be held responsible for any contravention in connection with M/s.R.M. Shukla petrol/diesel pump. However, it appears that the said persons have not even SCR.A/259/1999 11/13 JUDGMENT been named as co-accused in the said complaint wherein the petitioner arraigned as the sole accused. What is disconcerting is the fact that for the reasons best known to the authorities concerned, all other proceedings under the Act viz. service of seizure memo; notice to the manager to remain present; order suspending licence; etc. have been addressed to the proprietor and the Manager and it is only the First Information Report which has been lodged against the present petitioner. 12. Section 10 of the Act which makes provision for offences by companies provides that if the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. A bare reading of the aforesaid provision makes it amply clear SCR.A/259/1999 12/13 JUDGMENT that it is only such person who was in-charge of or was responsible for the business of the company who shall be liable to be proceeded against. In the facts of the present case, it is apparent that insofar as the petitioner is concerned, he was neither in charge of nor responsible to the company for the conduct of the business of the company at the time of commission of the alleged offence. Hence, the contention that insofar as the petitioner is concerned, the provisions of Section 10 of the Act are not attracted, deserves acceptance. 13. Though it has been contended on behalf of the State that the petitioner was the owner of the firm in question by virtue of a power-of- attorney, the actions of the respondents belie the say of the respondents, in that, it is the respondents themselves who have addressed all communications pursuant to the inquiry in question to Prakash Gajendra Shukla as owner and Nileshkumar Ratilal Parmar as Manager of the firm in question. Hence, the said contention does not SCR.A/259/1999 13/13 JUDGMENT merit acceptance. 14. In the light of the facts and legal provisions noted hereinabove, this Court is of the view that there is no justification coming on record for arraigning the petitioner as an accused for contravention of the provisions of Section 3 read with Section 7 of the Act alleged to have been committed by M/s.R.M. Shukla petrol/diesel pump as the petitioner was not in any manner concerned with the firm in question at the time the contravention was committed. Hence, the First Information Report in question is required to be quashed. 15. In the result, the petition succeeds and is accordingly allowed. The First Information Report being Crime Register No.II-33/99 registered at Devgadhbaria Police Station on 10th March, 1998 and any proceeding pursuant thereto are hereby quashed. Rule is made absolute accordingly. (H.N. DEVANI, J.) Hitesh