Crl. Misc. No. M-2215 of 2010 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-2215 of 2010 (O&M) Date of Decision: 25.8.2011. J.Ganesh Murthy ........Petitioner Vs. State of Haryana ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Sumeet Mahajan, Senior Advocate with Mr. Atul Nehra, Advocate for the petitioner. Mr. S.K.Hooda, Addl. A.G., Haryana for the respondent. ..... SABINA, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India for quashing of the orders dated 26.11.2009 (Annexures P-8 and P-8A). During the course of arguments, learned senior counsel for the petitioner has submitted that the petitioner had taken up various points in the application filed by him for discharge. However, the trial court had failed to deal with all the aspects while passing the impugned order. Learned state counsel, on the other hand, has submitted that the application moved by the petitioners for discharge had been rightly dismissed by the trial court. After hearing learned counsel for the parties, I am of Crl. Misc. No. M-2215 of 2010 (O&M) -2 - the opinion that the instant petition deserves to be allowed. The application (Annexure P-5) moved by the petitioner for discharge reads as under:- (1) That the above noted case is pending before this Hon'ble Court for framing of charge. It is submitted that the sample was taken from importer namely M/s Tata Chemicals Limited. And the applicant- accused No.5 has no concern or connection whatsoever with the said importer- Tata Chemicals Limited. (2) That the applicant is not having any connection with this complaint. Complainant by mistake made this applicant as Accused No.5 under the incorrect allegation and assumption that Tata Chemicals Limited is a Marketeer of Cargill India Private Limited's fertilizer which is not supported by any documentary evidence. (3) That Cargill India Private Limited which was Accused No.4 originally is no more standing trial in this case as proceedings against that company have been dropped on the basis of Hon'ble Punjab & Haryana High Court order dated 15.7.2004 in Crl. Misc. No. 20944-M of 2004. Further Cargill India Private Limited is not the 'importer' in the said case or for that specific sample of fertilizer and Tata Chemicals Limited is the importer. Therefore no case is made out by the prosecution against Cargill India Private Limited or the Accused No.5, a Crl. Misc. No. M-2215 of 2010 (O&M) -3 - manager of Cargill India Private Limited. (4) That the applicant submits that the present complaint case has been initiated on the basis of the Analysis Report of Fertiliser sample tested by the Quality Control Laboratory (Fert), Hissar. It is pertinent to mention that as per the Fertiliser Control Order, the Hissar is not a laboratory, which is pre-approved and notified for such purpose by the State Government 'with the prior approval of the Central Government'. In the complaint, neither it is alleged nor any documentary evidence is attached by the complainant to show that the Hissar Laboratory is a notified laboratory with prior approval of the Central Government. (5) Further, as per the decisions of the Hon'ble Punjab & Haryana High Court in matter titled as (i) Yogpal Malik Vs. State of Haryana reported as 2002(4) R.C.R. (Criminal) 435 as well as (ii) S.H. Chisty Vs. State of Haryana reported as 1997(20 R.C.R. (Criminal) 565 and also in the case of (iii) Hardeep Singh Vs. Govt. Food Inspector, Punjab in Criminal Misc. No. 6650-M-2006, the petitioner cannot be proceeded against, he being an employee of the company- Cargill India Private Limited when the entire proceedings against that company itself have already ben dropped and thus the company is no longer facing trial under Section 7 read with Section 10(1) of the Essential Commodities Act. Crl. Misc. No. M-2215 of 2010 (O&M) -4 - Copies of the above referred judgments are all attached with this petition. (6) To quote from the judgment and order of the Hon'ble High Court in the matter of S.H.Chisty Vs. State of Haryana- “......The words 'as well as the company' appearing in Clause (1) of Section 10 are not redundant. This Court is not in a position to subscribe to the view taken by his Lordship in 1996(3) R.C.R. 3 mainly on the ground that had this been the intention of the legislature that every person in charge of the affairs of the unit would be individually liable as an accused without arraigning the company as an accused, the words quoted above, 'as well as company' would not have been superfluous. By deleting above words, the legislature could very well say that every person who at the time the contravention was committed or in charge was responsible to the company for the conduct of the company's affairs shall be deemed to have committed the offence and shall be liable to be prosecuted. The words 'as well as the company' has a lot of significance and it cannot be brushed aside ......... Be that as it may, the plain reading of Section 10 which is equivalent to Section 33 of the Insecticides Act would show that a person Crl. Misc. No. M-2215 of 2010 (O&M) -5 - responsible for the manufacturing unit individually cannot be prosecuted without adding the company as an accused which has not been done in the present case which is evident from the complaint Annexure P-1. In these circumstances, the prosecution against the petitioner cannot be allowed to go....” Reply (Annexure P-9) to the said application filed by the complainant read as under:- (1) That para no.1 of the application is not denied. (2) That para no.2 of the application is wrong, incorrect, hence denied and not admitted. The said Laboratory is authorized by the Government. (3) That para no.3 of the application is wrong, incorrect, hence denied and not admitted. Wrong version has been mentioned in this para by the applicant. (4) That para no.2 of the application is wrong, incorrect, hence denied and not admitted. Wrong version has been mentioned in this para by the applicant. (5) That para no. 5 of the application is not related to reply the same. (6) That the last para of the application is wrong, incorrect, hence denied and not admitted, the applicant is not entitled to get any relief as prayed for. Thus, the petitioner had taken a specific plea that he Crl. Misc. No. M-2215 of 2010 (O&M) -6 - had no concern or connection with the importer Tata Chemicals Limited. The said fact was not denied by the complainant in the reply to the application. It has also been averred in the application by the petitioner that the complainant under mistaken belief had impleaded the petitioner as accused No.5 on the assumption that Tata Chemicals Limited was a marketeer of Cargill India Private Limited Fertilizer, although there was no documentary evidence in this regard. A perusal of the impugned order dated 26.11.2009 (Annexure P-8) reveals that the trial court in para No.6 of the impugned order held that the only ground taken in the application by the petitioner was that there was no specific allegation against him except stating that he was responsible person. The trial court has apparently not dealt with all the pleas taken by the petitioner in the application for discharge. The contentions raised by the petitioner in para Nos. 1 and 2 of the application have not been dealt with by the trial court while disposing of the application. In these circumstances, it would be just and expedient to set aside the impugned order and direct the trial court to pass a fresh order on the application moved by the petitioner for discharge in accordance with law. Accordingly, this petition is allowed. The impugned orders dated 26.11.2009 (Annexure P-8 and Annexure P-8A) are set aside. The trial court is directed to pass a fresh order on the application moved by the petitioner for discharge in accordance with law. (SABINA) JUDGE August 25, 2011 Gurpreet