Gujarat State Fertilizer And ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 380 MP

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         THE HIGH COURT OF MADHYA PRADESH
                        MCRC 11357 of 2021
  Gujarat State Fertilizer and Chemical Limited Company and Anr.
                     Vs. State of MP and Anr.

Gwalior, Dated :01/03/2021

      Shri Sanjay Kumar Bahirani, Counsel for the applicants.

      Smt. Uma Kushwah, Panel Lawyer for the respondent No.1/ State.

This application under Section 482 of CrPC has been filed seeking

quashment of the FIR in Crime No.454/2019 registered at Police Station

Joura, District Morena for offence under Section 3/7 of Essential

Commodities Act.

It is the case of the applicants that the applicant no.2 is the retired

Senior Manager of Gujarat State Fertilizer and Chemical Limited which

is registered under the Companies Act, whereas the applicant no.1 is the

Company itself. It is the case of the applicants that the applicant

No.1/Company imports various kinds of fertilizers for supply of the same

to the societies and other institutions. The licence in this regard under

Clause 8(3) has also been obtained. It is submitted that before selling the

fertilizers to the said institutions and societies, quality test is conducted

in the laboratory and thereafter, the fertilizers are supplied after following

the entire procedure required under the Fertilizer Control Order, 1985 [ in

short '' FCO'']. It is further mentioned that the applicant No.1/Company is

running its manufacturing units.

According to the applicants, on 16/07/2018, the Fertilizer Inspector

inspected the go-down of Cooperative Society Maryadit, Joura, District

THE HIGH COURT OF MADHYA PRADESH MCRC 11357 of 2021 Gujarat State Fertilizer and Chemical Limited Company and Anr.

Vs. State of MP and Anr.

Morena from where the sample of DAP fertilizers were collected and as

per the report, the fertilizer was found to be of un-substandard quality in

the light of specification given in the Act. It is further submitted that the

report of Analysis was prepared on 12 th July, 2018 but the same was

supplied to the applicants on 03/10/2018, whereas it should have been

supplied within a period of fifteen days. The applicant No.1/Company

also applied for reanalysis in the Central Laboratory, Faridabad.

However, the prayer of the applicants for retesting the sample was neither

considered nor sample of the Company was sent to the laboratory for

referee analysis under sub-section (2) of Sec.29(b) and Section 32(a) of

FCO and in the meanwhile, FIR was registered. After registration of the

FIR, the applicants again requested for retesting the sample which has

been accepted and now, the sample was called on 19/09/2019 for testing

the same. It is submitted that as per the provisions of Section 30(2)(3) of

FCO, the sample should be tested within thirty days from the date of

receipt of sample in the Laboratory and the result of the said sample

should be communicated within fifteen days from the date of receiving of

report but in the present case, neither the test result has been declared nor

any kind of report has been communicated to the applicants. On

02/12/2020, the applicants again requested the Joint Director to grant

permission to get analysis the referee sample but no action has been

THE HIGH COURT OF MADHYA PRADESH MCRC 11357 of 2021 Gujarat State Fertilizer and Chemical Limited Company and Anr.

Vs. State of MP and Anr.

taken.

It is also the case of the applicants that the applicant

No.1/Company has applied for retesting the sample but the report has not

been received. It is submitted that Kamlesh Prataprai Pancholi was

responsible for conduct of business of the Company and the sample was

also taken in his presence but he has not been made an accused and,

therefore, in the light of the judgment passed by Punjab and Haryana

High Court in the case of R.G. Shrivastava vs. State of Punjab,

reported in 2003 FAJ PN 389, the prosecution cannot lead evidence

contrary to the complaint.

It is submitted that the name of the applicant No.2 has neither been

mentioned in the FIR nor he has been added as an accused in the FIR

separately, but the police is trying to arrest him.

Heard the learned Counsel for the applicants.

So far as the contention of the applicants with regard to non-

impleadment of Kamlesh Prataprai Pancholi is concerned, this

application under Section 482 of CrPC has been filed on the affidavit of

Kamlesh Prataprai Pancholi himself. It is alleged that Kamlesh Prataprai

Pancholi is the retired employee of Gujarat State Fertilizer and Chemical

Limited Company/ applicant No.1, then it is clear that Kamlesh Prataprai

Pancholi has no authority whatsoever to file this application on behalf of

THE HIGH COURT OF MADHYA PRADESH MCRC 11357 of 2021 Gujarat State Fertilizer and Chemical Limited Company and Anr.

Vs. State of MP and Anr.

applicant No.1 or applicant No.2. Even Vaklatnama has been executed by

Kamlesh Prataprai Pancholi.

The applicants have also not filed any resolution of Board of

Directors of applicant No.1/Company thereby authorizing Kamlesh

Prataprai Pancholi to file this application under Section 482 of CrPC on

behalf of applicant No.1/ Company. Further, no document has been filed

along with this application showing that the applicant no.2 has authorized

Kamlesh Prataprai Pancholi to file this application under Section 482 of

CrPC on his behalf.

Thus, it is clear that the present application has been filed by an

unauthorized person. Under these circumstances, in case if this

application is dismissed, then the applicants may disown the filing of this

application by saying that they had never authorized Kamlesh Pratap Rai

Pancholi.

Under these circumstances, this application is dismissed as has

been under the Affidavit and Vaklatnama of an ''unauthorized

person''.

(G.S. Ahluwalia) Judge

MKB

MAHENDRA KUMAR BARIK 2021.03.03 14:45:25 +05'30' VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00'