M/S Mahyco Vegetable Seeds Ltd & ... vs State Of Maha & Ors
2017 Latest Caselaw 1481 Bom

                                     1       Cr WP 517 of 2003

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                  Criminal Writ Petition No.517 of 2003


     1)      M/s Mahyco Vegetable Seeds Ltd.
             Plot No.B-4, Industrial Estate,
             Jalna - 431 203.

     2)      Mr. M.M. Chavan,
             Age 30 years,
             Occupation : Service,
             as Deputy Manager (Legal)
             M/s Mahyco Vegetable Seeds Ltd.
             Plot No.B-4, Industrial Estate,
             Jalna - 431 203.

     3)      Mr. Anil s/o Damodhar Kolte,
             Age 37 years,
             Occupation: Service as
             Senior Manager (SDM)
             C/o M/s Mahyco Vegetable Seeds Ltd.
             Plot No.B-4, Industrial Estate,
             Jalna - 431 203.                .. Petitioners.

                      Versus

     1)      The State of Maharashtra
             Represented by Seed Inspector
             District Quality Control Inspector,
             C/o District Superintending
             Agriculture Officer, Ahmednagar,
             District Ahmednagar.

     2)      M/s. Prithvi Agro Services,
             Kisan Kranti Building,
             Market Yard, Ahmednagar,
             District Ahmednagar.

     3)      Mr. Chaburao Kisanrao Haral,
             Age 45 years,
             Occupation: Proprietor of




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                                         2        Cr WP 517 of 2003

             M/s. Prithvi Agro Services,
             Kisan Kranti Building,
             Market Yard, Ahmednagar,
             District Ahmednagar.

     4)      M/s. Kamdhenu Agro Agencies
             Devbhoyare Fata, Vadzire,
             Taluka Parner,
             District Ahmednagar.

     5)      Annasaheb Madhavrao Sonawale,
             Age 55 years,
             Occupation: Proprietor
             M/s. Kamdhenu Agro Agencies
             Devbhoyare Fata, Vadzire,
             Taluka Parner,
             District Ahmednagar.      .. Respondents.

                                        ----

     Shri. Joydeep Chatterji, Advocate, holding for Shri. N.K.
     Choudhari, Advocate, for petitioners.

     Shri. R.V. Dasalkar, Additional Public Prosecutor, for
     respondent No.1.

                                        ----

                                   Coram: T.V. NALAWADE, J.

                                    Date:      6 April 2017
     JUDGMENT:

1) The petition is filed under Articles 14, 21, 19(1)

(g), 226 and 227 of the Constitution of India and section

482 of the Code of Criminal Procedure for challenging the

order of issue process made by the Judicial Magistrate,

3 Cr WP 517 of 2003

First Class, Parner, District Ahmednagar in S.T.C.

No.55/2003 and also for quashing and setting aside the

proceeding of S.T.C. No.55/2003. Both the sides are heard.

2) Criminal Case No.55/23003 is filed by Seed

Inspector of the State Government against present

petitioners and four other accused for offences punishable

under section 6(b) read with section 7 of the Seeds Act

1966 and under Seeds Rules 1968. Petitioner No.1 - M/s

Mahyco Vegetable Seeds Ltd. Jalna is a producer of seeds.

Accused No.2, petitioner No.2 was working as Deputy

Manager (Legal) and accused No.3, petitioner No.3 of the

present matter was working as Senior Manager (SDM) at

the relevant time and it is the contention of the

complainant that accused Nos.2 and 3 were responsible

for conduct of business of accused No.1 at the relevant

time.

3) Accused Nos.4 and 5 are the dealers appointed

by accused No.1 Company and accused Nos.6 and 7 are

the retailers who collect goods from accused Nos.4 and 5.

Accused Nos.5 and 7, who are respondents, are the

4 Cr WP 517 of 2003

proprietors of accused Nos.4 and 6 concerns and accused

Nos.5 and 7 are responsible for conduct of business of

accused Nos.4 and 6.

4) On 1-9-2002 the complainant, Seed Inspector,

visited the business premises situated at Devbhoyare Fata,

Vadzire, Tahsil Parner of accused No.6, the retailer and

necessary procedure like giving intimation notice was

followed by the Seed Inspector. During inspection, the

complainant drew sample of seeds of onion of variety

-Nasik Red, and the sample was from Lot No.R00-66-29-

JLP-60657 from accused No.6. The sample was marked as

Sample No.09012308720022003-S. Representative

samples were prepared from this sample after following

the procedure by the Seed Inspector and one sample was

handed over to accused No.6. On 2-9-2002 the second

portion was sent by the complainant to Seed Testing

Laboratory Pune for the purpose of analysis and the third

sample was retained with the senior officers of the

Department.

                                        5       Cr WP 517 of 2003

     5)               The report of the Seed Testing Laboratory Pune

was received on 1-10-2002 and the report was to the

effect that the seeds failed in germination test. As against

required percentage of 70% the germination percentage

of 41% was found.

6) After receipt of the aforesaid report, the

complainant gave notices to the accused Nos.1,4 and 6,

the manufacturer, the dealer and the retailer. They replied

the notices. The complaint came to be filed on 31-1-2003

and the order of issue process was also made on 31-1-

2003. In stead of filing revision, present proceeding came

to be filed on 5-12-2003. It appears that initially the

matter was only admitted on 18-6-2004 but on 19-1-2006

the matter was again admitted and on that date, interim

relief like stay to the proceeding was granted. The matter

remained pending since then. It appears that first time in

January 2017 then learned Single Judge heard the matter

but the matter was adjourned as the counsel for the

petitioners sought time for showing some citations. This

Court insisted for advancing arguments and after giving

two adjournments the matter came to be heard on 4-4-

6 Cr WP 517 of 2003

2017. Thus, it can be said that from the year 2003 the trial

Court could not make progress in the matter due to the

pendency of present matter in this Court.

7) The learned counsel for the petitioners argued

that (i) there is no material to the effect that accused

Nos.2 and 3 (present petitioner Nos.2 and 3) are involved

in the management of accused No.1, company and they

are responsible for conduct of business of accused No.1

company; and (ii) due to late filing of complaint in the

Court, the petitioners have lost their right to get sample

tested through Central Seeds Laboratory under section

16(2) of the Seeds Act, 1966.

8) So far as the first ground is concerned, it can

be said that in the reply given by accused No.1, company,

to the notice issued by the Seed Inspector, nowhere it is

the contention of accused Nos.1 to 3 that a particular

employee or person is responsible for the conduct of the

business of the company. The reply dated 31-10-2002 is

signed by accused No.2 Shri. Chavan by giving his

designation as Deputy Manager (Legal). The reply shows

that it is not disputed that accused Nos.4 and 5 are the

7 Cr WP 517 of 2003

dealers of the company and from the dealer, the accused

No.6 had collected the goods from which the sample was

purchased by the Seed Inspector. The contents also show

that accused No.2 has the knowledge about the conduct of

the business and he has given particulars of the procedure

followed for manufacture and supply of seed by accused

No.1. Request was made in the reply to the Seeds

Inspector to get the seeds tested through "Other Seed

Testing Laboratory". The learned counsel for the

petitioners submitted that the information was supplied to

the Department of the Seed Inspector in the past in

Statement I and Statement II and in those statements

names of accused Nos.2 and 3 were not informed. The

learned counsel for the petitioners further submitted that

for Ahmednagar District different officers were appointed

by the company and so action cannot be taken against

accused Nos.2 and 3 who were working in Jalna office. In

the present proceeding some record like photo copy of

declaration, which is notarized, is produced to show that

accused Anil Kolte, Senior Manager was to work in Jalna

and one Ajay Bhamare was to work for Pune which

covered Ahmednagar. This Court has carefully gone

8 Cr WP 517 of 2003

through the photo copy of the said affidavit. Though there

is no record of receipt of such declaration by the

Government Department, this affidavit also does not show

that such restriction for liability was declared. On the

contrary, the declaration shows that respondent Anil Kolte

was the authorized person to sign principal certificates.

9) The learned counsel for the petitioners placed

reliance on the observations made by the Apex Court in

the case reported as AIR 2010 SC 2986 (State of NCT of

Delhi v. Rajiv Khurana). He took this Court through

paragraph 18 wherein some observations are made with

regard to necessity to state the duties and responsibilities

of the accused with regard to the conduct of business of

the company. There cannot be dispute over the

observations made by the Apex Court in this case. It is

already observed that there is specific allegation against

the petitioners, accused, who are managers that they are

involved in the management of the company. In this

regard, the provision of Section 21 of the Seeds Act, 1966

needs to be kept in mind. Relevant portions are Section

21(1) and 21(2) and they run as under :

9 Cr WP 517 of 2003

"21. Offences by companies.-- (1) Where an offence under this Act has been committed by a company, every person who at the time the offence 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 offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.-- For the purposes of this section,--

(a) "company" means anybody corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm."

10) The provision of section 21(1) of the Act shows

that every person he may be Director or not but who is in

charge of the business of and is responsible to the

company for the conduct of the business of the company

can be deemed to be guilty of the offence. It can be said

10 Cr WP 517 of 2003

that unfortunately in the present matter persons who

could have been made accused and who were in charge of

and responsible for the conduct of the business of the

company viz. Mahyco Company as per section 21(1) of the

Act are not made accused and they are spared. Section

21(2) shows that when managers are involved it is always

open to the complainant to prove that offence is

committed with consent and connivance of such managers

and in that case such managers can be deemed to be

guilty of the offence and shall be liable to be proceeded

against. Relevant material against the two managers,

accused Nos.2 and 3 is already quoted. In view of the

factual aspects of the present matter and the aforesaid

position of law, this Court holds that accused Nos.2 and 3

have no room to say that the process could not have been

issued against them. In the present matter the point

involved is little-bit different but it can be said that it is

not the contention of the petitioners that there was

compliance of the provisions of Rules 7 and 8 of the Seeds

Rules, 1968. In view of these circumstances also the

aforesaid contention made by the two managers cannot be

considered.

                                        11         Cr WP 517 of 2003

     11)              On the second point viz. loss of opportunity to

get the second sample tested through Central Seed

Laboratory, the submissions made show that the accused

persons did not exercise right given to them under section

16(2) of the Act. On this point the learned counsel for the

accused submitted that the expiry date of the seed was 7-

11-2002 and as the complaint was filed on 31-1-2003,

after the expiry period, there was no opportunity to the

accused to exercise this right. It was submitted that

summons was actually served on the accused on 17-5-

2003 and so such right was not exercised by the accused.

The relevant portion of section 16(2) runs as under:-

"16. Report of Seed Analyst.-- (1) . . . .

(2) After the institution of a prosecution under this Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending any of the samples mentioned in clause (a) or clause (c) of sub-section (2) of section 15 to the Central Seed laboratory for the report and on receipt of the application, the Court shall first ascertain that the mark and the seal or fastening as provided in clause (b) of sub-section (1) of section 15 are intact and may then despatch the sample under its own seal to the Central Seed Laboratory which shall thereupon send its report to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of the analysis."

                                           12            Cr WP 517 of 2003

     12)              The      learned   counsel     for      the      petitioners,

accused placed reliance on some observations made by

the Apex Court and also different Benches of this Court in

following cases :-

(i) AIR 1967 SC 970 (Municipal Corporation of Delhi v.

Ghisa Ram);

(ii) 2015 ALL MR (Cri) 2134 (Managing Director, Mahyco Seeds Ltd. vs. State of Maharashtra) (Nagpur Bench;

(iii) 2010 ALL MR (Cri) 2818 (Shivkumar @ Shiwalamal Narumal Chugwani v. State of Maharashtra) (Nagpur Bench);

(iv) Decision of Aurangabad Bench of this Court in Criminal Writ Petition No.1188 of 2014 (Shridhar Dattatraya Dahanagare v. The Govt. of Maharashtra) dated 3-3-2015;

(v) Decision of Aurangabad Bench of this Court in Criminal Writ Petition No.296 of 2015 (The Maharashtra Hybrid Seeds Co. Ltd. v. The Government of Maharashtra) dated 27-7-2015.

13) It can be said that in view of the observations

made by the Apex Court in he case of Ghisa Ram cited

supra, different Benches of this Court quashed the

proceedings file under the provisions of the Prevention of

Food Adulteration Act, 1954 and also under the provisions

of Seeds Act, 1966. This Court has carefully gone through

13 Cr WP 517 of 2003

the reported case of Ghisa Ram cited supra. That case was

criminal appeal filed by the prosecution to challenge the

acquittal. Food article "curd" was involved in the matter

and when right was exercised by the accused under the

relevant provisions of the Prevention of Food Adulteration

Act, 1954 to get the sample tested through Central Food

Laboratory, report was received that sample was

decomposed. The decomposition was due to the delay

caused in sending the sample. In view of the

circumstances the Apex Court held that the right given

under the similar provision of the Prevention of Food

Adulteration Act was lost and so the accused was entitled

to acquittal.

14) In the present matter the accused did not

exercise such right. Neither in the Seeds Act nor in the

Prevention of Food Adulteration Act there is any provision

raising presumption in favour of the accused that if shelf-

life period is over, the sample is not fit for testing and on

that point, the prosecution cannot be instituted or

cognizance cannot be taken of the offence. It needs to be

kept in mind that the purpose of various Acts like Seeds

14 Cr WP 517 of 2003

Act, 1966, Prevention of Food Adulteration Act, 1954 and

the Insecticides Act, 1968 is different. The adulteration as

defined in Prevention of Food Adulteration Act, 1954

shows that it can be of many kinds and in many cases

where foreign substances are mixed, there will be no

question of raising presumption that sample was unfit

after shelf-life period. Even the food article can be

preserved for longer period in the same condition under

controlled conditions. This aspect always needs to be kept

in mind by the Court and the Court is expected to go with

the presumption that the authority like Seed Inspector or

Food Inspector has taken care to see that under the

controlled condition the sample which can be sent to

Central Laboratory is preserved. That can be done in view

of provision of section 114 of the Evidence Act. If the

Court does not start with this presumption then it will not

be possible to file prosecution when the sample is

collected just before few days of the date of the expiry and

most of the accused will escape from criminal liability.

Thus it is all matter of evidence and at initial stage the

Court is not expected to use extraordinary jurisdiction and

quash the proceeding in such cases. While exercising

15 Cr WP 517 of 2003

extraordinary jurisdiction the Court is also expected to

keep in mind the conduct of the accused like to avoid to

exercise the right given under the provisions like Section

16(2) of the Act. It appears that the accused themselves

have misused the process of law by filing present

proceeding when they had not exercised the right given

under section 16(2) of the Act. As there is no report of the

Central Laboratory in the matter like present one, the

report of the State Laboratory can be safely used by the

prosecution.

15) The instances of selling substandard seeds are

increasing day by day and two years back due to absence

of germination entire crop of Soyabeen in Marathwada

region had failed. Present matter is of the year 2002 and it

can be said that as the Courts were not that strict, such

instances have now increased. It can be said that even

the Government Department is not that strict and they

are not taking action against the persons who are

responsible to the company for conduct of the business.

In the present matter the Managing Director could have

been made accused. In view of these circumstances, this

16 Cr WP 517 of 2003

Court holds that it is not possible to quash the proceeding

itself. It is unfortunate that due to present matter the

case itself could not make progress since the year 2003.

Not only the accused persons but even the system needs

to be blamed for the pendency. In the result, the petition

stand dismissed. Rule discharged. Interim relief is

vacated.

Sd/-

(T.V. NALAWADE, J.)

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