Bombay High Court
Ms Bayer Bio-Science Pvt. Ltd. Bayer vs State Of Maharashtra Through District ... on 5 February, 2025
2025:BHC-NAG:1099
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) No.465 OF 2024
1. M/s. Bayer Bio-Science Pvt. Ltd.,
Bayer House Central Avenue Road,
Hiranandani Estate Thane (West),
400 607.
2. Shri Anil Rathi, Regional Manager,
Aged about 43 years,
Occupation : Service,
R/o. c/o. Bayer CropScience Pvt. Ltd.,
1st Floor Shubhlaxmi Complex,
Opp. Vidyut Bhavan, Durga Chowk,
Akola 444 001. : APPLICANTS
...VERSUS...
State of Maharashtra,
through District Agriculture and Seed Inspector,
Zilla Parishad, Akola,
Shri Gopal Rajaram Bonde,
Aged about Major, R/o. Akola. : RESPONDENT
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. Amol Deshpande, Advocate for Applicants.
Mr. C.A. Lokhande, Additional Public Prosecutor for respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
AND
CRIMINAL APPLICATION (APL) No.466 OF 2024
1. M/s. Bayer Bio-Science Pvt. Ltd.,
Bayer House Central Avenue Road,
Hiranandani Estate Thane (West),
400 607.
2. Shri Anil Rathi, Regional Manager,
Aged about 43 years,
J-apl465.24.and 466.24.odt 2/10
Occupation : Service,
R/o. c/o. Bayer CropScience Pvt. Ltd.,
1st Floor Shubhlaxmi Complex,
Opp. Vidyut Bhavan, Durga Chowk,
Akola 444 001. : APPLICANTS
...VERSUS...
State of Maharashtra,
through District Agriculture and Seed Inspector,
Zilla Parishad, Akola,
Shri Gopal Rajaram Bonde,
Aged about Major, R/o. Akola. : RESPONDENT
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. Amol Deshpande, Advocate for Applicants.
Mr. V.A. Thakare, Additional Public Prosecutor for respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : URMILA JOSHI-PHALKE, J.
DATE : 05th FEBRUARY, 2025.
JUDGMENT :
1. Heard.
2. Rule. Rule made returnable forthwith.
3. By this application under Section 482 of the Code of Criminal
Procedure (hereinafter referred to as, the "Code"), the applicants prays for
quashing of the proceeding in Criminal Case No.5136/2019 and 5137/2019
pending with the Chief Judicial Magistrate, Akola for the offences punishable
under Section 13(2) of the Maharashtra Cotton Seeds (Regulation of Supply,
Distribution, Sale and Fixation of Sale Price) Act, 2009 (hereinafter referred
to as, the "Maharashtra Cotton Seeds Act, 2009"). The applicant No.1 is a
company registered under the provisions of the Companies Act, 1956.
J-apl465.24.and 466.24.odt 3/10
M/s. Bayer Bio-Science Private Limited is the company which manufactures
seeds and engaged in the business of production and marketing of hybrid
seeds such as cotton, Corn Paddy, Pearl Millet, Wheat and Mustard. The
company carrying on the business of production and marketing of various
seeds across India. The applicant is also holding the licence under the
provisions of the Maharashtra Cotton Seeds Act, 2009 to sell and storage of
cotton seeds in the State of Maharashtra. The Directorate of Agriculture,
Office of Commissionerate of Agriculture, Maharashtra State, Pune had
granted licence for carrying out business of genetic seeds and validity of the
said licence from 2.6.2017 to 1.6.2020, bearing licence No.LCCD10010017
issued on 19.3.2019.
4. The respondent is a public servant and designated as District
Agriculture Officer and Seed Inspector (Quality and Control) for entire
agriculture development office, Agriculture Department, Zilla Parishad,
Akola. That the respondent is Seed Inspector appointed under Section 7 of
the Maharashtra Cotton Seeds Act, 2009 vide notification dated 13.10.2010.
5. On 21.5.2019 the respondent Seed Inspector visited the
premises of applicant No.1 and drive sample of seeds of cotton and divided it
into three parts. Out of three seed samples one portion was handedover to
the applicant No.1 and his signature was obtained on Form No.VIII. As per
Section 7(2) of the Maharashtra Cotton Seeds Act, 2009, the Seed Inspector
is having power to enter, search any premises and draw samples and detain
or seize the cotton seeds. The Seed Inspector gave a notice to the present
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applicant on 21.5.2019 with an intention for taking sample of seed from
stock for the purpose of test or analysis in Form No.VI and drive sample in
Form No.VIII in respect of hybrid Cotton Safal-555 Non-BT Lot
No.4172800006, bearing sample No.23012600420192012. The second
portion of seed sample was sent to analyst on 28.5.2019 in Form V to the
Seed Testing Laboratory on 28.5.2019. In perusal to that the said Testing
Laboratory, Nagpur forwarded his report dated 6.6.2019. On the basis of
report from the Laboratory the Seed Inspector alongwith said report issued
show cause notice on 2.7.2019 to the applicants thereby called upon them to
tender an explanation regarding adverse findings recorded by the Seed
Testing Laboratory, Nagpur. On 20.6.2019 the said show cause notice was
replied by the applicants by denying all allegations made in the said show
cause notice. Being dissatisfied with the reply given by the applicant No.1,
the respondent Seed Inspector had served the notice on 23.9.2019 informing
that he is intending to file a complaint in the Court for the violation of
provisions of the Maharashtra Cotton Seeds Act and accordingly filed
complaint bearing No.5137/2019. Similarly, another complaint was filed by
the respondent on an allegation that on 21.5.2019 he intends to visit the
company for taking sample of seed from stock for the purpose of test or
analysis in Form No.VI and accordingly drew sample in Form No.VIII in
respect of hybrid Cotton Safal-555 Non-BT Lot No.4172800006 bearing
sample No.23012600420192012. The second portion of seed sample was
sent to analyst in Form No.V to the Seed Testing Laboratory, Nagpur on
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28.5.2019. The report of Seed Testing Laboratory was received on 6.6.2019.
On the basis of said report again respondent issued show cause notice on
2.7.2019 to the applicants calling explanation regarding adverse finding
recorded by the Seed Testing Laboratory, Nagpur. The applicants replied the
said notice by denying all allegations on 26.7.2019.
6. Being aggrieved and dissatisfied with the said explanation the
respondent Seed Inspector issued a notice informing that he is intending to
file complaint against the applicants for the violation of Sections 6(B) and
7(C) of the Seeds Act 1966 and Section 2(VIII), 2(X) and Section 13(2) of
the Maharashtra Cotton Seeds Act, 2009. Learned counsel appearing for the
applicants referred the grounds taken in the petition and submitted that the
Maharashtra Cotton Seeds Act, 2009 made applicable and the Act was
specifically inacted to regulate the supply, distribution, sell and fixation of
sell price of cotton seeds for the matters connected therewith or incidental
thereto. Under the said Act cotton seeds are not notified under Section 5
and consequently no sell of such seed is regulated under Section 7 of the
Maharashtra Cotton Seeds Act, 2009. He 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 supply or
distribution or sell 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 engage in the supply, distribution and sell of
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cotton seeds to comply with the directions as may be specified in the
notification. The Controller can only direct to sell the cotton seeds at such
price as may be fixed by the State Government. It is further submitted that
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. The respondent Seed
Inspector has no authority to file a complaint in respect of offences under the
provisions of the Maharashtra Cotton Seeds Act, 2009.
7. Another point raised by the applicants is that the samples were
sent for analysis on 28.5.2019, report is received on 6.6.2019. On receipt of
report another notice was issued asking the applicant to explain adverse
findings recorded by the Seed Testing Laboratory, Nagpur on 2.7.2019. The
notice was replied on 26.7.2019 and proceeding was filed on 9.10.2019.
The opportunity was not granted to the present applicants to re-analyse the
sample during the shelf-life of the said seeds.
8. In respect of the contention learned counsel placed reliance on
decision of this Court in Criminal Application No.568/2018, decided on
11.12.2018, Criminal Application No.439/2023, decided on 25.9.2023.
Maharashtra Hybrid Seeds Company Limited Vs. State of Maharashtra,
reported in 2015 ALL MR (Criminal) 2213, Mahik Vegetable Seeds Limited
Vs. State of Maharashtra 2018 ALL MR (Criminal) 910 SC.
9. Per Contra, learned Additional Public Prosecutor strongly
opposed the said application on the ground that second portion of the seed
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sample was sent to analyst on 28.5.2019. Thereafter, on 6.6.2019 the Seed
Testing Laboratory, Nagpur sent its report. On receipt of the report show
cause notice was issued and reply was sought. Thereafter, complaint was
filed. Though the complaint was filed on 9.10.2019 which is after expiration
of validity of seed but the sample of seed as well as report of analyst was
submitted to the applicants before expiration of validity period and it is done
in continuity. As per Section 9(3) of the Maharashtra Cotton Seeds Act,
2009 the Seed Inspector on the basis of report of the seed analyst under
sub-section(1) instituted proceeding for prosecution as the seed was
BT positive. Thus, the application is devoid of merits and liable to be
rejected.
10. I have given careful consideration to the submissions of the
learned counsel appearing for the applicants and learned Additional Public
Prosecutor for the State. Though the learned Additional Public Prosecutor
submitted that the sample which was obtained was Non BT and it has no
shelf-life but reply filed by the State shows that the complaint was filed on
9.10.2019 which is after expiration of validity of seed. Section 2 of the
Maharashtra Cotton Seeds Act, 2009 has come into force on 9 th May 2009.
Section 2 of the said Act deals with definition and Section 2(II) defines
Controller as "Controller means the cotton seeds, Controller appointed by
the Government under Section 3." Section 3 pertains to 'appointment of
controller'. The State Government may, by notification in the official gazette,
appoint an officer possessing such qualification as may be prescribed, to be
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the Controller. From the plain reading of the said Section it could be
gathered that it would require notification in the official gazette to appoint
an Officer having requisite qualification to be the Controller. The powers of
the Controller are enumerated in Section 4 of the said Act. Section 15 of the
said Act shows that Court shall not take cognizance of an offence under the
Act unless the complaint is lodged in writing. Such complaint has to be
made either by the Controller or any other officer authorized by the
Controller for this purpose. In the present case complaint is lodged by the
Seed Inspector. Thus, it is crystal clear that the complaint is neither filed by
the Controller nor any other officer authorized by the Controller for this
purpose. Admittedly, the complaint in the present complaint is filed by
Gopal Rajaram Bonde whose designation is Seed Inspector. The notification
which is filed on record nowhere reveals that Seed Inspector is authorized by
the Controller to file and initiate the proceeding as filed before the
Magistrate. Thus, admittedly, the complainant is not competent person, who
can file the said complaint. This Court has already dealt this issue in the
case of Maharashtra Hybrid Seed Company Private Limited (supra).
11. Another ground raised by the applicant is that no opportunity
was granted to the applicants to re-analyse the sample. Though the learned
Additional Public Prosecutor submitted that Non BT sample has no shelf-life
but in reply it is admitted by the State that the complaint was filed on
9.10.2019 which is after expiration of validity of seeds. Section 9 of the said
Act reads as follows :
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"9. (1) The Seed Analyst shall, as soon as may be,
after the receipt of seed the sample from the Seed
Inspector, analyse the sample at the State Seed Testing
Laboratory and furnish a report on the result of the
analysis to the Seed Inspector.
(2) The Laboratory to which a sample has been
sent by a Seed Inspector for analysis shall send the
analysis report to the concerned Seed Inspector within
thirty days from the date of receipt of the sample to the
Laboratory.
(3) The Seed Inspector may, on the basis of the
report of the Seed Analyst under sub-section (1), institute
proceedings for the prosecution of the producer or
vendor, as the case may be, of the said seed.
(4) After institution of prosecution under this Act,
the accused vendor or the complainant, as the case may
be, on payment of the prescribed fee, may make an
application to the Court, for sending any of the sample
retained with the Seed Inspector or vendor to any of the
Referral Seed Testing Laboratory prescribed under section
6 of the Act, for the analysis. The Court shall first
ascertain that the mark or seal or fastening, as prescribed
is intact. On receipt of the application, the Court may
dispatch the sample under its own seal to any of the
Referral Seed Testing Laboratory specified for the
purpose, which shall, thereupon, within a period of thirty
days from the date of receipt of sample, send its report to
the Court, in the prescribed form.
(5) The report sent by the Referral Seed Testing
Laboratory under sub-section (4) shall supersede the
report given by the Seed Analyst under sub- section (1)."
12. Learned counsel for the applicants has rightly submitted that
the applicants have been deprived of the opportunity to get the sample
tested in terms of sub-section (4) of Section 9. The result of which would
supersede the report dated 6.6.2019. It is not necessary to go into the result
of the test analysis inasmuch as Act of 2009 provides for fair opportunity to
the accused to make an application to the Court for sending the samples
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retained with the Seed Inspector or the vendor or any of the referred Seed
Testing Laboratory prescribed under Section 6 of the Act. Since the
complaint has been filed subsequent to the expiry date of the samples, the
applicants have been prevented from invoking this provision. Thus, the
applicants have made out a case. The continuation of the complaint against
the provisions of law will be an abuse of process of law. Therefore, the
applications deserve to be allowed.
13. The Criminal Case Nos.5136/2019 and 5137/2019 pending on
the file of Chief Judicial Magistrate, First Class, Akola are quashed and set
aside.
14 The applications are disposed of in the above terms.
(URMILA JOSHI-PHALKE, J.)
okMksns
Signed by: Mr. Devendra Wadode
Designation: PA To Honourable Judge
Date: 05/02/2025 14:50:35
