Karnataka High Court
Sameer Goel S/O Shri Har Swarup ... vs The State Of Karnataka on 8 August, 2023
Bench: M.Nagaprasannapresided Bymnpj
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CRL.P No. 102836 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 102836 OF 2022
BETWEEN:
SAMEER GOEL S/O SHRI HAR SWARUP GOEL.
AGE. 58 YEARS, OCC. MANAGING DIRECTOR,
CORMANDAL INTERNATIONAL LIMITED,
AT. 1-2-10, SARDAR PATEL ROAD,
SECUNDERABAD-500003.
... PETITIONER
(BY SRI. AVINASH A UPLAONKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ADDL SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH-580011.
2. THE GOVERNMENT OF KARNATAKA,
VISHAL DEPARTMENT OF AGRICULTURE,
NINGAPPA R/BY THE FERTILIZED INSPECTOR
CUM AGRICULTURE OFFICER,
PATTIHAL O/O ASSISTANT DIRECTOR OF AGRICULTURE,
BILAGI, DIST. BAGALKOT-591307.
Digitally signed by
VISHAL NINGAPPA ... RESPONDENTS
PATTIHAL (BY SRI. V.S. KALASURMATH, HCGP FOR R1 & R2)
Date: 2023.08.10
11:36:33 +0530 THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO EXERCISE INHERENT POWERS U/S 482 OF CR.P.C.,
EXAMINE THE RECORDS AND QUASH THE TAKING COGNIZANCE IN
CC NO.83/2020, DATED 20.12.2019, FOR THE OFFENCE U/S 19 OF
FERTILIZER CONTROL ACT AND 3 AND 7 OF ESSENTIAL
COMMODITIES ACT 1955, PENDING BEFORE THE CIVIL JUDGE AND
JMFC COURT AT BILAGI, BAGALKOT, AGAINST THE
PETITIONER/ACCUSED NO.2.
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CRL.P No. 102836 of 2022
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question
proceedings in C.C. No.83/2020, registered for the offence
punishable under Sections 3 and 7 of the Essential
Commodities Act.
2. Learned counsel for the petitioner submits that
issue in the lis stands covered by the judgment rendered
by the Coordinate Bench of this Court in Criminal Petition
No.101235/2023. The Coordinate Bench of this Court has
held as follows:
3. The brief facts of the case are as
under :-
A private complaint came to be filed
by respondent No.2 who is the Fertilizer
Inspector cum Agriculture Officer by name
Basavaraj Sindhigeri with J.M.F.C., Ballari.
Gist of the private complaint averments
reveal in respect of fertilizer quality
control programme, he went to 1st
accused concern as fertilizer inspector. On
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enquiry, he found that unauthorized
godowns were being run and unauthorized
non-standard fertilizer are being sold by
the 1 s t accused. Accordingly, he raided the
said firm and collected the samples which
were being sold in the 1st accused
concern. He drew the mahazar with regard
to drawing of samples and sent the same
to laboratory and found that the samples
are non-standard and therefore, sought
for action against the petitioner herein.
4. Being aggrieved by the action
initiated by the complainant, accused No.3
is before this Court seeking quashing of
further proceedings on the following
grounds:
a. That the impugned proceedings
against the petitioner herein who is just a n
employee of the company is unsustainable
without prosecuting the comp any.
b. That the Section 10 of the Essential
Commodities Act, provides that the employee
of the company as well as the company have
to be prosecuted for the any alleged offences.
The present complaint being instituted
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CRL.P No. 102836 of 2022
without arraying the company as a party to
the proceedings is vitiated by the incurable
defect. Further there is misjoinder of cause of
action as separate complaints ought to have
been filed by the respondent No.2.
c. It is sub mitted that this Hon'ble
court in the case of Shri. Bireshwar Banerjee
Vs. The State of Karnataka in Crl.P.
No.102568/2022 decided on 14/09/2022 has
held that the prosecution under the
provisions of Essential Commodities Act, and
Fertiliser Control Order against individual
without impleading the company is not
maintainable.
d. That the alleged sample was
collected in the absence of the petitioner. The
respondent Nol.2 has not given any
opportunity to get the samples re-analysed
as per the provisions of the fertilizer control
order.
e. It is sub mitted that the a common
complaint as against employees of different
companies wherein the cause of action is
mutually exclusive, the complaint is not
maintainable.
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CRL.P No. 102836 of 2022
f. It is submitted that several
samples of different companies are collected
at the same time. The sample forms do not
disclose whether the samples collected were
from the expired products as such the
complaint is not maintainable.
5. Reiterating the grounds urged in
the petition, Sri.Santosh B Malligawad,
learned counsel for the petitioner
vehemently contended that since the
company which manufactured the fertilizer
of which the sample drawn from the 1 s t
accused-firm is not made as party,
proceeding case against accused No.3 is
uncalled for and sought for setting aside
the registration of case and proceeding
with the criminal case in C.C.No.132/2022.
6. Per contra, High Court
Government Pleader contended that non-
impleading of the company which is the
manufacturer of the fertilizer of which the
sample is drawn is only formal in nature
and therefore, sought for dismissal of the
petition.
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CRL.P No. 102836 of 2022
7. In view of the rival contentions
of the parties, this Court perused the
material on record meticulously.
8. On such perusal of the material
on record, it is seen that Indian Farmers
and Fertilizers Co-operative Limited (for
short, 'IFFCO') is not made as a party to
the private complaint. In order to
appreciate the contentions urged on behalf
of the petitioner, it is necessary to cull out
Section 10 of the Essential Commodities
Act which reads as under:-
"10. Offences by companies.--
(1) If the person contravening an order
made under section 3 is a company, every
person who, at the time the contravention
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
contravention 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 if he proves that the
contravention took place without his
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knowledge or that he exercised all due
diligence to prevent such contravention.
(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 accord ingly. Explanation.--For the
purposes of this section,--
(a) "company'' means any body
corporate, and includes a firm or other
association of individuals; and
(b) "director'' in relation to a firm
means a
partner in the firm."
9. Since the company is not
arraigned as an accused, taking
cognizance by the learned Magistrate
against the compliance officer and
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Liasoning Officer, is impermissible in view
of Section 10 of the E.C. Act referred to
(supra).
Therefore, the order taking
cognizance needs to be quashed by this
Court by exercising the power vested in it
U/sec.482 Cr.P.C. Hence, the following
order is passed.
In the light of issue standing covered by the afore
quoted judgment, the following.
ORDER
The criminal petition is allowed.
Pending proceedings against the petitioner in C.C.
No.83/2020, on the file of the Civil Judge and JMFC, Bilagi
is hereby quashed.
Sd/-
JUDGE
Vb
Ct:Bck
