Karnataka High Court

Shri.V.P.Desai vs The State Of Karnataka on 30 October, 2024

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                                                              NC: 2024:KHC-D:16012
                                                          CRL.P No. 102487 of 2024




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                              DATED THIS THE 30TH DAY OF OCTOBER, 2024
                                                BEFORE
                                  THE HON'BLE MS. JUSTICE J.M.KHAZI
                                 CRIMINAL PETITION NO.102487 OF 2024
                                       (482(Cr.PC)/528(BNSS))
                      BETWEEN:

                      SHRI V.P.DESAI,
                      AGE. 60 YEARS, OCC. BUSINESS
                      DESIGN BIOCIS PRIVATE LIMITED,
                      GENUPALYA, KUMBALGOD BENGALURU,
                      TQ. AND DIST. BENGALURU.
                                                                       ...PETITIONER
                      (BY SRI N.L. BATAKURKI, ADVOCATE)

                      AND:

                      THE STATE OF KARNATAKA,
                      REP. BY KUM LAXMI TELI S.,
                      FERTILIZER INSPECTOR CUM AGRICULTURE OFFICER,
                      LOKAPUR-587122,
                      TQ. MUDHOL, DIST. BAGALKOT,
                      REP. BY STATE PUBLIC PROSECUTOR,
                      HIGH COURT BLDG, DHARWAD.
                                                                      ...RESPONDENT
Digitally signed by   (BY SRI PRAVEENA Y.DEVAREDDIYAVAR, HCGP)
MOHANKUMAR B
SHELAR
                            THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
Location: HIGH
COURT OF              CR.P.C. SEEKING TO ADMIT THE PETITION AND QUASH THE ORDER
KARNATAKA             OF ISSUE OF PROCESS FOR THE OFFENCES P/U/O 19 OF FERTILIZER
                      (ORGANIC, INORGANIC, MIXTURE, (CONTROL) ORDER, 1985 AND
                      R/W SEC. 3 AND 7 OF THE ESSENTIAL COMMODITIES ACT, BY THE
                      PRL. CIVIL JUDGE AND JMFC, MUDHOL IN C.C.NO.245/2023 DATED
                      18.07.2023 AND ALSO QUASH THE COMPLAINT AGAINST THE
                      ACCUSED NO.2/PETITIONER HEREIN IN THE INTEREST OF JUSTICE
                      AND EQUITY.

                          THIS CRIMINAL PETITION, COMING ON FOR DICTATING
                      ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                              NC: 2024:KHC-D:16012
                                         CRL.P No. 102487 of 2024




CORAM:    THE HON'BLE MS. JUSTICE J.M.KHAZI

                           ORAL ORDER

(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)

In this petition filed under section 482 of Cr.P.C., the

petitioner, who is arraigned as accused No.2 has

challenged the initiation of criminal prosecution in

C.C.No.245/2023 on the file of the Principal Civil Judge

and JMFC, Mudhol for the offences punishable under

Section 19 of the the Fertiliser (Inorganic, Organic or

Mixed (Control) Order, 1985 ('Fertiliser (Control) Order,

1985 ('Fertiliser (Control) Order, 1985' for short) r/w

Section 3 and 7 of the Essential Commodities Act, 1955.

2. Brief facts leading to filing of the present

petition are that the Fertilizer Inspector and Agricultural

Officer, Lokapur (hereinafter referred to as "complainant"),

filed a private complaint under section 200 of Cr.P.C.

against the petitioner/accused No.2 and another alleging

that on 22.11.2022 at 11.11 a.m., complainant inspected

the M/s Hosakote Fertilizers, Lokapur and found that the 1

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k.g. packet of 100% water soluble fertilizer 19:19:19

manufactured by DSCIGN Biosys Private Limited was not

bearing Mark S.O.2900(E) dated 24.10.2015 which is

violation of Clause 2(h) and 19(c) Fertiliser (Control)

Order, 1985. Complainant also collected sample of

fertilizer as per Annexure-5 and sent one sample to the

Deputy Director of Agriculture, Fertilizer Control

Laboratory, Dharwad for testing. Vide report dated

07.12.2022, it is stated that the sample is not in according

to specification and fails in water soluble potash nutrient

content and thereby the accused have violated Clause 2(h)

and 19(c) of the Fertiliser (Control) Order, 1985,

punishable under Section 7 of the Essential Commodities

Act. In this regard, the complaint under Section 200 of

Cr.P.C. is filed.

3. The accused has appeared before the trial

court. When the case was posted for plea, he has come up

with the present petition seeking quashing of the criminal

proceedings on the ground that as per Section 10 of the

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Essential Commodities Act, the company is not arraigned

as accused and in its absence, the petitioner is not liable

to answer the charges.

4. On the other hand, the learned HCGP would

submit that the action of the complainant in filing the

complaint and registering the case is justified and it is a

matter of trial and it is for the petitioner to prove his

innocence during trial.

5. Heard the arguments and perused the records.

6. Admittedly, the charges leveled against the

petitioner is that he has violated Clause 2(h) and 19(c) of

the Fertiliser (Control) Order, 1985 and it is punishable

under with Section 7 of the Essential Commodities Act,

1955.

7. Section 10 of the Essential Commodities Act,

1955, deals with the offence by Companies and it reads as

follows:

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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 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 accordingly.

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8. Perusal of Section 10 of the Essential

Commodities Act, 1955 makes it evident that wherever

contravention is by a Company, then every person who, at

the time the contravention was committed, was in charge

of and 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.

Therefore, petitioner is made liable on account of he being

seller and Administrative Officer of the manufacturing

Company in question and therefore, until and unless the

company is arraigned as accused, the petitioner cannot be

held responsible.

9. In fact, the Hon'ble Apex Court in Aneeta

Hada Vs. Godfather Travels and Tours Private

Limited1 while considering the offence committed by the

company has held as follows:

(2012) 5 SCC 661

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"53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant.

            ...           ...                       ...


      56. We    have    referred    to    the       aforesaid

passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company.

The learned counsel for the respondents have vehemently urged that the use of the term "as well as" in the section is of immense significance and, in

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its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words "as well as" have to be understood in the context.

59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three- Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 :

1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove."

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10. In the light of the above judgment and having

regard to the fact that the company is not arraigned as

accused, this court is of the considered opinion that the

complaint is not maintainable as against the petitioner and

therefore, the proceedings are liable to be quashed insofar

as the petitioner is concerned. Accordingly, I proceed to

pass the following:

ORDER

The Criminal petition is allowed.

The impugned proceedings in

C.C.No.245/2023 pending on the file of the

Principal Civil Judge and JMFC, Mudhol for the

offences punishable under Section 19 of the

Fertiliser (Inorganic, Organic or Mixed (Control)

Order, 1985 ('Fertiliser (Control) Order, 1985

r/w Section 3 and 7 of the Essential

Commodities Act, 1955 insofar as petitioner is

concerned, is hereby quashed.

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In view of disposal of the matter, pending

interlocutory applications, if any, do not survive

for consideration and are disposed of

accordingly.