Madhya Pradesh High Court
Raj Kumar Suhane vs The State Of Madhya Pradesh on 15 December, 2021
Author: Rajendra Kumar (Verma)
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HIGH COURT OF MADHYA PRADESH: BENCH: INDORE
S.B. Hon'ble Shri Justice Rajendra Kumar (Verma)
M.Cr.C. No.4385 of 2021
Raj Kumar Suhane
v/s.
State of M.P.
For appellant: Shri Mangesh Bachawat, Advocate for appellant.
For respondent: Mrs. V. Phaye, Public Prosecutor for State.
_____________________________________________________________
ORDER
(Deliver on this 15/12/2021)
******
This petition has been filed under Section 482 of Cr.P.C for seeking
quashment of FIR dated 22.6.2019, registered at crime No.0228 of 2019 at
police station Kanwan, district Dhar for commission of offence punishable
under Section 420 of IPC and under Section 3 and 7 of the Essential
Commodities Act and for offence U/Clause 19(c) of the Fertilizer (Control)
Order, 1985.
(2) Facts of the case are that the petitioner is the Director of M/s. Agro
Phos India Ltd a company registered under the Companies Act, 1956,
having its registered office at M-87, Trade Centre, 18M, South Tukoganj,
Indore and the petitioner is not at all responsible for compliance of the
provisions of the Fertilizer (Control) Order, 1985. The M/s. Agro Phos is
into the business of manufacturing, storing, packing, distributing,
transporting of fertilizers, chemicals. The company manufactures and supply
Single Super Phosphate, Boronated Super Phosphate and Zincated Super
Phosphate and other NPK fertilizers. These fertilizers falls in to the Union
List of the Constitution of India and therefore, the Central Govt. has
promulgated the Fertilizer (Control) Order, 1985 (Annxure P/5) of its power
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available to it under the provision of the Essential Commodities Act, 1955
for the purpose of regulating the manufacturing, sale and distribution of the
fertilizers in the entire territories of the country.
(3) The prosecution case is that a complaint dated 21.6.2019 was
submitted by the Agriculture Extension Office (Fertilizer Inspector)
Development Block Badnawar, district Dhar, alleging that on the basis of
various complaint received from the farmers, the weight of the bags of
fertilizers supplied by the petitioner company is below then 50 Kgs and
same amounting to fraud played and cheating and therefore, FIR has been
registered.
(4) Learned counsel for the petitioner submits that Agriculture Extension
Officer as well as the Inspector was required to lodge the complaint against
the Compliance Officer of the company, as per Fertilizer (Control) Order,
1985 (Annexure P/5). However, the same was not done and police officers
of the concerned police station without appreciating the provisions of
Fertilizer (Control) Order, 1985 as well as the Act straightaway lodged the
FIR (Annexure A/1) against the petitioner. It is also submitted that Joint
Director of the Farmer Welfare and Agriculture (Fertilizer) Department vide
letter (Annexure A/7) dated 24.8.2019, clarifying the legal aspects and
appreciating the Clause 24 of the FCO, 1985, informed the Fertilizer
Inspector about the status of the Compliance Officer of the company and
directed to take further action in the matter.
(5) It is also submitted that in pursuance to the letter dated 24.8.2019 of
the Joint Director Agriculture Department, the complainant in the case, i.e.,
Fertilizer Inspector vide letter dated 26.8.2019 (Annexure A/8), also
clarified the status of the petitioner informing the SHO police station
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Kanwan and stated that the petitioner is holding the post of Managing
Director in the Company whereas, as per the Clause 24 of the Fertilizer
(Control) Order, 1985, one Mahendra Singh is the Compliance Officer in
behalf of the company and he shall be sole responsible for any action or
offence committed by the Company.
(6) It is also submitted that basic element for bringing the matter into the
net of the provisions of the Fertilizer (Control) Order and Essential
Commodities Act are completely missing in the matter. In the present case
the company appointed Mr. Mahendra Pratap Singh, as the Compliance
Officer, even the same was intimated to the Inspector and the Dy. Director
Agriculture, Ratlam, then too the action was taken against the present
petitioner. Relying on the order passed by this Court vide order dated
20.2.2020 passed in M.Cr.C.No.9257 of 2016 (Birendra Kumar Mishra vs.
State of M.P. & Ors.) and the order of the Apex Court in the case of Zandu
Pharmaceutical Works Ltd. v/s. Md. Sharaful Haque, reported as AIR
2005 SC 9, the petitioner prayed for quashment of the FIR and all
proceedings arising out of the same crime No.228 of 2019, registered at
police station Kanwan, district Dhar.
(7) Learned Public Prosecutor for State has submitted that as regard to
objection pertaining to non-compliance of Clause 24 of the Fertilizer
(Control) Order, 1985, the petitioner and manufacturing company has never
informed the answering respondents about their appointed officers
(Compliance Officer) and first time in the present application the name of
the Compliance Officer has been disclosed and therefore the petitioner
cannot seeks shelter under Clause 24 of the Fertilizer (Control) Order, 1985.
(8) Heard the learned counsel for the parties and perused the record.
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(9) The question before this Court is whether in view of the grounds
contained in the petition, the desired relief of quashment can be afforded to
the petitioner or not.
(10) Clause 24 of the Fertilizer (Control) Order, 1985, is reproduced as
below :-
"24. Manufacturers/[importers]/Pool handling agencies to
appoint officers responsible with compliance of the order :-
Every manufacturing organization [importer] and pool handling
agency shall appoint in that organization and in consultation
with the Central Government, an officer, who shall be
responsible for compliance with the provisions of this order."
(11) Learned counsel has referred to a circular of the Government of India
dated 1.8.1997 (Annexure P/5), which has been addressed to Secretary
Agriculture of all the State / Union Territories wherein a direction has been
made that Enforcement Officers be advise to file cases against designated
officers in the event of any offence committed and not against any body else
who is not designated for the purpose. Learned counsel submits that in view
of the aforesaid circular which has been issued for strict compliance of
Clause 24 (supra), FIR could have been lodged only against the Compliance
Officer.
(12) The petitioner has filed Annexure A/4 Circular/memorandum issued
by the Directorate of Kisan Kalyan Tatha Krishi Vikas, Madhya Pradesh,
which it has been mentioned that Mr. Mahendra Pratap Singh S/o. Amar
Singh has been authorized for quality related issues as per FCO for the State
and he is the Compliance Officer appointed under Fertilizer (Control) Order,
1985.
(13) Complainant Rajesh Verma, Agriculture Extension Officer (Fertilizer
Inspector), he is subordinate to Dy. Director of Kisan Kalyan Tatha Krishi
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Vikas of the concerned district and it should have been in well knowledge
of Rajesh Verma Agriculture Extension Officer that Mr. Mahendra Pratap
Singh was the Compliance Officer appointed under Fertilizer (Control)
Organization.
(14) Learned counsel for the petitioner has relied upon the judgment in the
case of Vishwa Pal Singh vs. State of Punjab, reported as (2011) SCC
on-line P&H 4897 in which prosecution had been lodged against
Vishwa Pal Singh, the petitioner whereas one Vishnu Prasad was
appointed as Compliance Officer under Clause 24 of FCO, 1985. The
court allowed the petition and FIR and all subsequent proceedings were
directed to be quashed. This Court vide order dated 20.2.2020 passed
M.Cr.C.No.9257 of 2016 has quashed all the proceedings and FIR
against the petitioner Birendra Kumar Mishra. In Zandu
Pharmaceutical Works Ltd (supra), the Apex Court has observed the
following which reads as under :-
"It would be an abuse of process of the Court to allow any
action which would result in injustice and prevent
promotion of justice. In exercise of the powers, Court would
be justified to quash any proceeding if it finds that
intimation/continuance of it amounts to abuse of the process
of court or quashing of these proceedings would otherwise
serve the ends of justice. When no offence is disclosed by
the complaint, the court may examine the question of fact.
When a complaint is sought to be quashed, it is permissible
to look into the materials to assess what the complainant has
alleged and whether any office is made out even if the
allegations are accepted in toto."
(15) FIR which has been lodged is Annexure A/1 dated 22.6.2019. Thus,
prior to lodging of FIR, memorandum/Circular (licence) (Annexure A/4)
regarding appointment of Mr. Mahendra Pratap Singh, as a Compliance
Officer has been issued by Directorate Kisan Kalyan Tatha Krishi Vikas,
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Bhopal (M.P.) on 4.6.2018. Hence, in view of Clause 24 of Fertilizer
(Control) Order read with Circular dated 1.8.1997, the prosecution could
have been lodged only against Mr. Mahendra Pratap Singh. The defence of
the respondent that no information had been received regarding appointment
of Mr. Mahendra Pratap Singh before lodging of FIR is rejected in view of
the discussions above.
(16) The present case is no different from the cases of Vishwa Pal Singh
(supra) and Birendra Kumar Mishra (supra). FIR could not have been
registered against the present petitioner, i.e., Raj Kumar Suhane, Managing
Director and it could be lodged/registered only against Mahendra Pratap
Singh, Compliance Officer.
(17) Consequently, the petition under Section 482 of Cr.P.C, stands
allowed and the prosecution against the petitioner stands quashed which
would include quashment of FIR and all subsequent proceedings against
him.
(18) Accordingly, the petition filed under Section 482 of Cr.P.C, stands
allowed in above terms.
(Rajendra Kumar (Verma)
Judge
Digitally signed by SHAILESH
MAHADEV SUKHDEVE
SS/- Date: 2021.12.16 15:42:47
+05'30'
