Bombay High Court

Ramnarayan S/O Bansilal Mundada vs The State Of Maharashtra And Anr on 11 December, 2017

Bench: S.S. Shinde

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                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1289 OF 2016


 Ramnarayan s/o Bansilal Mundada,
 Age-57 years, Occu:Business,
 R/o-Paithan, Tq-Paithan,
 Dist-Aurangabad.
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,
    Through Public Prosecutor,
    Hon'ble High Court of Judicature
    at Bombay, Bench at Aurangabad,

 2) Sandeep s/o Dashrath Shirsat,
    Age-Major, Occu:Agriculture Officer
    and Seed Inspector,
    Panchayat Samittee, Paithan,
    Tq-Paithan, Dist-Aurangabad.   
                                 ...RESPONDENTS

                      ...
    Mr.D.S. Bharuka Advocate for Petitioner.
    Mr.D.R. Kale, A.P.P. for Respondent No.1.
    Mr.S.R. Dheple Advocate for Respondent No.2. 
                      ...

               CORAM:   S.S. SHINDE AND
                        MANGESH S. PATIL, JJ.

DATE OF RESERVING JUDGMENT : 5TH DECEMBER, 2017

DATE OF PRONOUNCING JUDGMENT: 11TH DECEMBER, 2017

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JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. This Petition is filed with following

prayers:

"(B) The Charge-sheet bearing R.C.C. No.384/2015 pending before the learned Judicial Magistrate, First Class, Paithan may kindly be quashed and set- aside and Petitioner, who is arrayed as Accused No.1 in the Charge-sheet may kindly be discharged.

(C) Order of issue of process, if any, against the Petitioner may kindly be quashed and set-aside."

3. The brief facts giving rise to this

Petition are as under:

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A) It is the case of the Petitioner that he

is dealing in business of different seeds,

fertilizer and other agriculture items since more

than 20 years in the name and style as "Rameshwar

Krushi Seva Kendra", Paithan. It is submitted that

on 9th June, 2015, Respondent No.2 visited shop

of the Petitioner and he satisfied himself that

the Petitioner was selling the seeds as per

Government Regulation dated 8th June, 2015 at the

rate of Rs.830/- per bag and issuing purchase

bills. Thereafter Respondent No.2 left the shop of

the Petitioner and again after 15 minutes came

back to the shop. At that time many agriculturist

had gathered for purchasing seeds. One Shivpal

Gangaram Rathod, resident of Khoda-Tanda was also

present and he purchased 10 bags of golden cotton

seed of Vithal variety. The Petitioner issued the

bill of 10 bags at the rate of Rs.830/- per bag.

It is the case of the Petitioner that Respondent

No.2 without satisfaction of real facts and

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without any complaint from any agriculturist

present there or any complaint of Shivlal Gangaram

Rathod about charging excess rate of Rs.900/- ber

bag, drawn a false panchnama by alleging that, the

Petitioner has collected Rs.9000/- from Shivlal

Gangaram Rathod for 10 bags instead of Rs.8300/-

and has not issued purchase bill to the said

person.

B) It is the further case of the Petitioner

that Respondent No.2 also visited another shop of

Sunil Lalasaheb Sawar, namely "Ishwar Krushi

Kendra" Paithan,. Respondent No.2 on 10th June,

2015 filed a complaint at Paithan police station

against the Petitioner and Sunil Lalasaheb Rawas

and police registered Crime No.43 of 2015 for the

offences punishable under Section 420 of the

Indian Penal Code, Section 8 of Seeds Control

Order, 1983, Section 4 of Maharashtra Cotton Seeds

(Regulation of Supply, Distribution, Sale and

Fixation of Sale Price) Act, 2009 (for short

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"Maharashtra Cotton Seeds Act, 2009") and

Section 3 of Essential Commodities Act, 1955. It

is submitted that the Petitioner was released on

anticipatory bail on 24th August, 2015 by the

learned Sessions Judge.

4. Learned counsel appearing for the

Petitioner referring to the grounds taken in the

Petition, submitted that the Maharashtra Cotton

Seeds Act, 2009 made applicable on 3rd July, 2009

and this Act was specifically enacted to regulate

the supply, distribution, sale and fixation of

sale price of cotton seeds and for the matters

connected therewith or incidental thereto. Under

the said Act cotton seeds are not notified under

Section 5 and consequently no sale of such seeds

is regulated under Section 7 of the Maharashtra

Cotton Seeds Act, 2009. It is submitted that as

per the said Act, cotton seed is not an essential

commodity within the meaning of the Essential

Commodities Act, 1955 as amended in the year 1985

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and amended by the Essential Commodities

(Amendment Act 2006). Similarly, provisions of the

Seed (Control) Order, 1983 which was issued under

Section 3 of the Essential Commodities Act, are

not applicable so far as they relate to the cotton

seeds.

5. Learned counsel further submitted that to

implement the provisions of the Maharashtra

Cotton Seeds Act, 2009, under Section 3 of the

said Act a Controller is appointed and powers are

vested with the Controller for regulating,

maintaining and increasing the supply or

distribution or sale of cotton seeds. It is

submitted that under the provisions of the

Maharashtra Cotton Seeds Act, 2009, only

Controller can by an order in writing, regulate

any person engaged in the supply, distribution and

sale of cotton seeds to comply with direction as

may be specified in the notification. Controller

can only direct to sell the cotton seeds at such

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price as may be fixed by the State Government. It

is submitted that after Enactment of the

Maharashtra Cotton Seeds Act, 2009, provisions of

Seeds Act and Seeds (Control) Order are not

applicable in respect of cotton seeds.

6. Learned counsel further submitted that

under Section 13 of the Maharashtra Cotton Seeds

Act, 2009, for contravention of Section 4 of the

Act punishment is provided. Under Section 15 of

the Maharashtra Cotton Seeds Act, 2009, Court can

take cognizance of an offence punishable under the

Maharashtra Cotton Seeds Act, 2009, only on

complaint in writing made by the Controller and

any other person authorized by the Controller.

Learned counsel submitted that the police has no

authority to take cognizance of any complaint in

respect of offence under the provisions of the

Maharashtra Cotton Seeds Act, 2009.

7. It is further submitted that police

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station, Paithan had taken cognizance of a

complaint filed by Respondent Nol.2 - Sandeep

Dashrath Shirsat who was only Seeds Inspector and

Agriculture Officer of Panchayat Samittee, Paithan

and on the basis of complaint of the said officer,

crime was registered as Crime No.115 of 2015 for

the offences punishable under Sections 4 and 13 of

the Maharashtra Cotton Seeds Act, 2009, Section 8

of Seeds (Control) Order, 1983, Section 3 of the

Essential Commodities Act and Section 420 of the

Indian Penal Code. It is submitted that the

police has no authority to take cognizance and

deal with the matter.

. It is further submitted that police of

Paithan police station filed a charge-sheet

against the Petitioner and the same was registered

as R.C.C. No.384 of 2015. It is submitted that

learned Judicial Magistrate, First Class, Paithan

has wrongly and illegally taken cognizance of the

offence contrary to the provisions of Section 15

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of the Maharashtra Cotton Seeds Act, 2009. Under

the provisions of the said Act, the learned Court

below can take cognizance only upon a complaint in

writing made by the Controller and as such

cognizance of the complaint by the police by an

unauthorized officer was also illegal, as the

police has no power to take cognizance and

investigate the matter. It is further submitted

that the learned J.M.F.C., Paithan against the

provisions of law has taken cognizance of offence

and registered the case against the Petitioner and

on the basis of the same, issued process against

the Petitioner. Learned counsel therefore, submits

that the act of police and act of the learned

J.M.F.C. is illegal, void and as such the charge-

sheet is liable to be quashed and set aside.

8. On the other hand, learned A.P.P.

appearing for the State and learned counsel

appearing for Respondent No.2 invite our attention

to the allegations in the First Information Report

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(for short "the F.I.R.") and also the statement of

the witnesses recorded during the course of

investigation and submit that after proper

investigation charge-sheet has been filed before

the Court of J.M.F.C. at Paithan. The

Investigating Officer has collected sufficient

material and on the basis of said material trial

can proceed. It is submitted that Respondent No.2

was appointed as Seed Inspector by Notification

dated 13th October, 2010, issued by the

Agriculture, Animal Husbandry, Dairy Development

and Fisheries Department, Government of

Maharashtra and therefore he was authorized

officer to make enquiry and file the complaint and

the J.M.F.C. Paithan has rightly taken cognizance

of the said offence.

9. Learned counsel appearing for Respondent

No.2 invites our attention to the provisions of

Section 7 of the Maharashtra Cotton Seeds Act,

2009, and submits that there can be appointment of

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Seed Inspector under the said provision by the

State Government. Accordingly, Respondent No.2 is

appointed as Seed Inspector and he has exercised

his powers under the provisions of the Maharashtra

Cotton Seeds Act, 2009 as well as the provisions

of the Essential Commodities Act and the

provisions of Seeds Act, 1966.

10. We have given careful consideration to

the submissions of the learned counsel appearing

for the Petitioner, learned A.P.P. appearing for

the State and learned counsel appearing for

Respondent No.2. With their able assistance, we

have perused the pleadings in the Petition and

annexures thereto. It appears that the Government

of Maharashtra, Department of Agriculture, Animal

Husbandry, Dairy Development and Fisheries

Department issued Notification on 8th June, 2015

thereby regulating maximum price of sale of the

cotton seeds. In the said Notification various

varieties of the cotton seeds are mentioned and

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for that maximum sale price has been mentioned.

The said Notification is issued taking recourse to

Section 10 of the Maharashtra Cotton Seeds Act,

2009.

11. Upon careful perusal of the F.I.R., it

appears that the Petitioner herein who is running

"Rameshwar Krushi Seva Kendra" sold cotton seed

bags to one Shri Shivlal Gangadgar Rathod for

higher price than the one prescribed under the

aforesaid Notification. The allegation is that the

Petitioner though received an amount of Rs.9000/-,

did not issue receipt to Shivlal Gangadhar Rathod

after selling the bags of cotton seed. It is also

alleged that the Petitioner prepared the bill

mentioning therein that each bag was sold for

Rs.830/-, however the said bill was kept by the

Petitioner with him in the shop and the same was

not given to said farmer namely Shivlal Rathod. It

appears that the said incident had taken place on

9th June, 2015. It is relevant to mention that the

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afore mentioned Notification was issued by the

concerned Department of the Government of

Maharashtra on 8th June, 2015. It appears that the

statement of Shivlal Gangadhar Rathod was recorded

on 11th June, 2015. There is no explanation on

record why his statement was recorded on 11th

June, 2015 when it is alleged that cotton seed

bags were sold by the Petitioner for higher price

on 9th June, 2015 at about 12.00 O'clock. It is

also not made clear whether the shop owners who

were authorized to sell the cotton seed bags were

made aware about said Notification.

12. It would be apt to make reference to the

provisions of introductory part/ preamble of the

Maharashtra Cotton Seeds (Regulation of Supply,

Distribution, Sale and Fixation of Sale Price)

Act, 2009, which reads as under:

"An Act to regulate the supply, distribution, sale and fixation of sale

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price of cotton seeds and for the matters connected therewith or incidental thereto. Whereas cotton seeds of certain varieties are not notified under section 5 and consequently no sale of such seeds are regulated under section 7 of the Seeds Act, 1966;

And Whereas cotton seed is not an essential commodity within the meaning of the Essential Commodities Act, 1955 as amended by the Essential Commodities (Amendment) Act, 2006;

And Whereas the provisions of the Seeds (Control) Order, 1983 issued under section 3 of the Essential Commodities Act, 1955 are not applicable in so far as they relate to the cotton seeds."

13. Therefore, it is clarified in the

Maharashtra Cotton Seeds Act, 2009 that cotton

seed is not an essential commodity within the

meaning of the Essential Commodities Act, 1955 as

amended by the Essential Commodities (Amendment)

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Act, 2006. It is further made clear that the

provisions of the Seeds (Control) Order, 1983

issued under Section 3 of the Essential

Commodities Act, 1955 are not applicable so far as

they relate to the cotton seeds. However,

interestingly while registering the F.I.R., it is

mentioned that there is violation of Sections 3

and 7 of the Essential Commodities Act, 1955 and

also the provisions of Seeds Act, 1966 and the

Rules of 1968 and also the Seeds (Control) Order,

1983. Since the aforesaid provisions are not made

applicable to cotton seeds, as it is evident from

the afore mentioned extracted portion from the

Maharashtra Cotton Seeds Act, 2009, the

prosecution of the Petitioner under the said

provisions, would not arise.

14. In the Maharashtra Cotton Seeds Act,

2009, under Section 2 i.e. Definitions, in clause

(2) "Controller" is defined as under:

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"(ii) "Controller" means the Cotton Seed Controller appointed by the Government under Section 3."

. Section 3 of the Maharashtra Cotton Seeds

Act, 2009 is about the appointment of Controller

and Section 4 is about powers of Controller, which

read thus:

"3. Appointment of Controller.- The State Government may by notification in the Official Gazette, appoint an officer, possessing such qualifications as may be prescribed, to be the Controller,

4. Powers of Controller.- (1) Subject to the control of the State Government, the Controller, if it appears to him to be necessary or expedient for regulating maintaining or increasing the supply or distribution or sale of cotton seeds, may, by order in writing, require any person-

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(i) holding stock of cottonseed to sell the whole or specified part thereof at such prices as may be fixed by the State Government, by publication of notification in the Official Gazette, from time to time and to such persons in such circumstances as may be specified in the notification;

(ii) engaged in the supply, distribution and sale of cotton seeds, to comply with directions, as may be specified in the notification, as to the variety, quality or quantity of the cotton seeds to be sold or delivered by him.

(2) The Controller shall determine the compensation payable for sale of misbranded or spurious or substandard seed, in such manner, as may be prescribed.

(3) Notwithstanding anything contained in any contract or instrument to the contrary, every person to whom an order is issued under sub-section (1) shall

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comply with such order."

15. Section 5 of the Maharashtra Cotton Seeds

Act, 2009 regulates the functions of the

Controller. Therefore, upon conjoint reading of

definition of "Controller", "cotton seeds", the

provision of appointment of controller, powers of

controller and functions of controller, it is

clear that ultimate authority is left with the

controller to make order in writing for

regulating, maintaining or increasing the supply

or distribution or sale of cotton seeds.

16. At the relevant time, Respondent No.2 was

working as Seed Inspector. It is true that

Section 7 of the Maharashtra Cotton Seeds Act,

2009 provides for appointment of Seed Inspector by

the State Government. However, upon careful

perusal of the Notification issued by the

Agriculture, Animal Husbandry, Dairy Development

and Fisheries Department, dated 13th October, 2010

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of which reference has already been made, in which

there is no reference to the Maharashtra Cotton

Seeds Act, 2009 or Section 7 thereof while

appointing the Seed Inspector for particular area.

Section 10 of the Maharashtra Cotton Seeds Act,

2009 authorizes the State Government for fixation

of maximum sale price of all types of cotton

seeds.

17. Section 15 of the Maharashtra Cotton

Seeds Act, 2009, reads thus:

"15. Cognizance of offences.- No Court shall take cognizance of an offence punishable under this Act except upon a complaint, in writing, made by the Controller or any other officer authorized by him for this purpose."

. Upon careful perusal of Section 15

referred herein above, it is abundantly clear that

the Court can take cognizance of an offence

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punishable under the Maharashtra Cotton Seeds Act,

2009 only on the complaint in writing made by the

controller or any other officer authorized by him

for this purpose. During the course of hearing of

the Petition neither the learned A.P.P. nor

learned counsel appearing for Respondent No.2

brought to our notice any such authorization by

the controller in favour of Respondent No.2 or

that Respondent No.2 is appointed by the State

Government taking recourse of Section 7 of the

Maharashtra Cotton Seeds Act, 2009.

18. It is pertinent to note that Respondent

No.2 was appointed by Notification dated 13th

October, 2010 issued by the Agriculture, Animal

Husbandry, Dairy Development and Fisheries

Department of the Government of Maharashtra. The

said Notification reads thus:

"No.Biyane 2010/CR-5/(1)/1A.- In pursuance of the provisions of sub-

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section (1) of section 13 of the Seeds Act, 1966 (54 of 1966) read with rule 22 of the Seeds Rules, 1968 and in supersession of Government Notification, Agriculture, Animal Husbandry, Dairy Development and Fisheries Department, No. Biyane 1707/CR-306/1-A, dated the 13th June 2007, the Government of Maharashtra hereby appoints the persons mentioned in column (2) of the schedule appended hereto to be the Seed Inspectors for purpose of the said Act and specifies the areas mentioned against each of them in column (3) of the said Schedule within which they shall exercise their jurisdiction."

19. In the light of discussion herein above,

in the first place there was delay of more than

two days in recording statement of Shivlal

Gangadhar Rathod. Secondly, the Respondents have

not filed any document on record to show that as a

matter of fact the Petitioner and authorized

sellers of cotton seeds were made aware about the

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Notification issued on 8th June, 2015 of which

reference is already made. Thirdly, the F.I.R.

itself recites as under:-

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[email protected]@2015 jksth fc;k.ks fodzh dsysys gksrs- lnj 'ksrdjh

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R;kl udkj fnyk gksrk- ijarq eh pkSd'kh dsyh vlrk

fodzsR;kus T;knk ?ksrysyh jDde ns.;kl r;kj vlY;kps

ekU; d:u lnj 'ksrd&;kl :- [email protected]& ijr dsys-