Criminal Misc. No. M-18839 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-18839 of 2008 Date of Decision: 03.02.2010 Dr. D.N. Verma son of Sh. Banarsi Verma, Manager (Quality Control) of Indian Farmers Fertilizer Cooperative Limited (IFFCO), Kandla, Gujarat. ... Petitioner Versus The State of Punjab through Chief Agriculture Officer, Ludhiana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Dinesh Goyal, Advocate, for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 1 – State. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing Complaint, under Section 7 of the Essential Commodities Act, 1955, read with Clause 19, pending before the Chief Judicial Magistrate, Ludhiana, and all the subsequent proceedings, arising therefrom, has been filed by the petitioner. 2. On 12.06.01, Sh. Baljinder Singh Gill, Development Officer, alongwith Sh. Pritpal Singh ADO, Jandiali, Ludhiana, Criminal Misc. No. M-18839 of 2008 2 exercising the powers of Fertilizer Inspector, Sahnewal, raided the premises of Sahnewal Cooperative Marketing Society Ltd., which was indulging in the business of fertilizer, vide licence No. 32/327 (valid upto 24.05.03). The Fertilizer Inspector, showed his intention, to take the sample of the fertilizer, to Dharam Singh, Manager, and Arun Kumar Sood, Clerk, working in the said firm. He also tried to join some non-official member with the raiding party, but in vain. Thereafter, exercising the power, under Clause 28(1) (b) of the Fertilizer Control Order, 1985, he took the sample of Di-ammonium Phosphate “IFFCO” N 18%, P 46%, from four bags, manufactured by Indian Farmers Cooperative Ltd., Kandla, Gujarat, in accordance with the procedure, laid down, as per Schedule II Part 'A' of Fertilizer Control Order, in the presence of Dharam Singh, Manager, and Arun Kumar Sood, Clerk, as also Sh. Pritpal Singh, ADO, Jandiali. At the time of taking out the sample of fertilizer, from the bags, he inserted probe diagonally, from one corner to another and poured the same, approximately weighing 6-7 kgs., on a dry polythene sheet. Thereafter, the sample, was mixed with the hard paper to make its contents homogenous. The sample was divided into four equal parts, on the sheet, and mixed till it remained 1 ½ kgs in weight. Thereafter, three test samples of the fertilizer, weighing 400 gms each, were prepared and converted into parcels duly sealed with the seals, bearing impressions F1 and F1 2 MN. 'J' forms, were also filled up, and signed by the Fertilizer Inspector and attested by Sh. Pritpal Singh, ADO, Jandiali, witness to the recovery. After Criminal Misc. No. M-18839 of 2008 3 completing all the formalities, as per Schedule II Part A of the Fertilizer Control Order, 1985, the Fertilizer Inspector, sent two sample parcels alongwith forms J & K, to the office of Chief Agricultural Officer, Ludhiana, wherefrom, Sh. Surjit Singh, AEEO, sent one sample parcel, to the Analytical Chemist Incharge, Fertilizer Testing Laboratory, Ludhiana, on 13.06.01, through Darbara Singh, Sewadar. The report of the Analytical Chemist Incharge, dated 12.07.01, was received, according to which, the sample of fertilizer, was opined to be not according to specifications, showing N. 17.5% as against 18% and P44.8% as against 46%. Thereafter, on 16.07.01, the Chief Agricultural Officer, Ludhiana, issued show cause notices, to Sahnewal Cooperative Marketing Society Ltd., for violation of Clause 19(1) (a) of the Fertilizer Control Order, 1985, and provisions of Fertilizer Control Order, 1985 of Indian Farmers Fertilizer Cooperative Ltd. Kandla, Gujarat. Copy of the show cause notice, was also sent to the Chief Manager, IFFCO, Kandla, alongwith copy of the analysis report. A show cause notice dated 27.07.01, was also served upon Iqbal Singh, Manager, IFFCO, Ludhiana, for violation of Clause 19(i) (a) of Fertilizer Control Order, 1985. A show cause notice dated 03.08.01, was also served upon Deep Narain Verma, Manager Quality Control, IFFCO, Kandla. It was stated that Dharam Singh, Manager of Sahnewal Cooperative Marketing Society Ltd. and Arun Kumar Sood, were responsible for the conduct of business of the aforesaid firm, and, as such, supplied fertilizer to the CASS/farmers under DRC No. 32/327. It was further stated that, Criminal Misc. No. M-18839 of 2008 4 thus, accused No. 2, 3, 4 and 6, in general, and the petitioner, in particular, being the persons responsible for the act and conduct of the business of accused No. 1 firm, violated the provisions of Clause 19(1) (a) of the Fertilizer Control Order, 1985, by manufacturing / selling /stocking /supplying/ distributing offering for sale and exhibiting for sale of sub-standard fertilizers. 3. I have heard the Counsel for the parties, and, have gone through the record of the case, carefully. 4. The Counsel for the petitioner, submitted that, in the complaint, it was nowhere alleged, by the complainant/respondent, that the petitioner, was incharge of, and responsible, to Indian Farmers Fertilizer Cooperative Limited (IFFCO), Kandla, Gujarat, for the conduct of its business. He further submitted that, in the absence of such an averment, having been made, in the complaint, no prosecution, against the petitioner, describing him, as a nominated person of the said Company, could be launched. He further submitted that, even there was no document, on record, to the effect, that the petitioner, was incharge of , and responsible, to the said Company, for the discharge of its day to day functions. He also placed reliance, on Sabitha Ramamurthy and another Vs. R.B.S. Channabasavaradhya, 2006(4), RCR (Criminal), 296 (SC), Monaben Ketanbhai Shah and another Vs. State of Gujarat and others, 2004(7), SCC, 15, M.P. Singh Vs. State of Punjab and others, 2006(4), RCR (Criminal), 146, R.G. Srivastava Vs. State of Punjab and another, 2003(2), RCR (Criminal), 54, and, Dr. Manu Criminal Misc. No. M-18839 of 2008 5 Seth, Managing Director, M/s Tata Chemicals Limited, Bombay House, 24 Homi Modi Street, Fort Mumbai Vs. Food Inspector through the Advocate General, State of Punjab, Chandigarh and others, 2008(4), RCR (Criminal), 648, in support of his contention. He further submitted that continuation of the complaint and the subsequent proceedings, arising therefrom, is nothing but an abuse of the process of the Court. 5. On the other hand, the Counsel for the respondent, submitted that, in para No. 10 of the complaint, it was, in clear-cut terms, averred that, accused No. 4 (Indian Farmer Fertilizer Cooperatives Ltd. Kandla, Gujarat), is the manufacturing unit, and accused No. 5 (Sh. Deep Narain Verma), petitioner, is the person, responsible and working as Manager Quality Control Officer, IFFCO, Kandla, Gujarat. He further submitted that, it was also specifically averred, in para 10 of the complaint, that accused Nos. 4 to 6, committed the violation of the provisions of Clause 19(1)(a) of the Fertilizer Control Order, 1985, by manufacturing/supplying/distributing/offering for sale/exhibiting for sale/stocking for sale/stocking and marketing of sub-standard DAP, IFFCO. He further submitted that the averments, contained in the complaint, were clear, to the effect, that the petitioner, was the person incharge of and responsible to the said Company, for the conduct of its business. He further submitted that the evidence, was not required, to be mentioned, in the complaint. He further submitted that the allegations, contained in the complaint, are required, to be Criminal Misc. No. M-18839 of 2008 6 proved, by way of evidence. He further submitted that the petitioner, was liable for the commission of offence, and the complaint, as also the subsequent proceedings, are not liable to be quashed. 6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in Criminal Misc. No. M-18839 of 2008 7 following categories of cases, the High Court, in exercise of its powes, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1)Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2)Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same, do not disclose the commission of any offence, and make out a case Criminal Misc. No. M-18839 of 2008 8 against the accused. 4)Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Criminal Misc. No. M-18839 of 2008 9 accused, and with a view to spite him due to private and personal grudge. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 7. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in State of Haryana and others' case (supra), is applicable, to the same, or not. In para No. 10 of the complaint, it was in so many words, stated by the complainant, that the petitioner, is the person responsible and working as Manager, Quality Control, IFFCO, Kandla, Gujarat. The petitioner, being the Manager, Quality Control, was charged with the duty, to maintain the quality of the fertilizer manufactured. When the sample of the fertilizer taken, was analyzed, by the Laboratory, it was not found upto the prescribed specifications. The sample was, therefore, found to be adulterated not standard. Not only this, Deep Narain Verma, petitioner, also submitted, in his affidavit, dated 03.10.02, the mention whereof, was also made, in the complaint, that he had been appointed, as responsible person, under Clause 24 of the Fertilizer Control Order, 1985. He also stated, in the affidavit, that he shall be responsible for the quality of NPK 12:32:16 and DAP Criminal Misc. No. M-18839 of 2008 10 18:46:0, under Clause 24 of Fertilizer Control Order, 1985. Complaint is not an encyclopedia. During the course of the evidence, to be produced, in the complaint, the complainant, will prove, as to the mode and manner, in which, the petitioner, was incharge of, and responsible, to the Company, for the conduct of its business. The very nature of the duty of the petitioner, was to maintain the quality of fertilizer. If the quality of fertilizer, was found to be sub-standard, then certainly, he could be said to be a person incharge of responsible for the said violation. In the cases, relied upon, by the Counsel for the petitioner, it was laid down, that the mere averment, in the complaint, that all the Directors, were responsible for clearance of liability, did not meet the statutory requirement of making them incharge and responsible for the conduct of the business of the company. The aforesaid cases, were decided, on the peculiar facts and circumstances, prevailing therein. In the instant case, besides the clear-cut averment, made in the complaint, as to, in which manner, the petitioner, was liable for the commission of offences, being Manager, Quality Control, reliance was also placed, on the affidavit, which was submitted by him, that he was wholly solely responsible for complying with the provisions of Clause 24 of the Fertilizer Control Order, 1985. Under these circumstances, the facts of the instant case, being clearly distinguishable, from the facts of the aforesaid cases, no help, can be drawn, by the Counsel for the petitioner, from the ratio of law, laid down, therein. The continuation of the complaint and the subsequent proceedings, arising therefrom Criminal Misc. No. M-18839 of 2008 11 cannot be said to be sheer abuse of the process of the Court. The same are not liable to be quashed. 8. For the reasons, recorded above, Criminal Misc. No. M- 18839 of 2008, being devoid of merit, must fail, and the same is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 9. Registry is directed, to comply with the order, by sending the copies thereof, to the Court concerned immediately. 03.02.2010 (SHAM SUNDER) Amodh JUDGE