ANIL KUMAR MISRA Vs. STATE OF U P

JUDGEMENT

(1.) By the petition under Section 482 of the Code of Criminal Procedure, the petitioners have sought for the quashing of the first information report dated 26-10-1990 purporting to have been made under Sections 12, 19, 27, 28, 39-A, 40, 40-B, 46 of U.P. Regulation of Cold Storage Act, 1976, lodged by opposite-party No. 2 at Police Station Itaunja, District Lucknow which has been recorded as Crime No. 156/90. The petitioners have annexed the copy of the first information report as annexure- 1 to the petition under Section 482 of the Cr. P. C.

(2.) The petitioners are the partners of the firm named as 'Misra Cold Storage' which is running Cold Storage & Ice Factory in village Itaunja, District Lucknow. According to petitioners' case the petitioners' cold storage was established in 1979 and it was daily licensed under the aforesaid U.P. Regulation of Cold Storage Act, 1976 (hereinafter referred to as the Act). The licences, according to petitioners, used to be duly renewed from time to time and it was also renewed in the year 1990. According to petitioners case the petitioners have been running the aforesaid could storage absolutely in accordance with the provisions of the Act, rules and relevant Control Orders during all this period since its establishment without any complaint from either the hirers or from any authority under the provisions of the Act of the Cold Storage. The petitioners' case is that they store in their cold storage only potatoes during the season which commences from middle of May and runs up to the middle of November each year. The petitioners' case is that they have always taken due and reasonable care of the goods deposited as man of ordinary prudence would do. That petitioners themselves are also agriculturists they also keep their produce of potato in the said cold storage. The petitioners' case is that in the current year i.e. 1990 the petitioners stored approximately two thousand bags of potatoes which was their own produce. According to petitioners' case in the current year out of Fifty four thousand bags of potatoes which had been stored in the petitioners' cold storage about Fifty one thousand bags have been taken out by hirers without any complaint about the condition of the potato stored in the cold storage. The petitioners have further alleged that their cold storage is being run by electricity for maintaining (sic) duplicate feeder (sic) direct feeder for (sic) regular supply of elecricity. In paragraph 10 of the petition, the petitioners have stated that the temperature of each chamber is recorded every days in the log book several times and that there are three chambers in the petitioners cold storage. The petitioners have given the shiftwise temperature of the three chambers during dry and wet season which is as under:Room No. 1 Room No. 2 Room No. 3 Dry Wet Dry Wet Dry Wet 10 A.M. 34 1/2 32 1/2 35 33 35 33 12 Noon 34 32 34 1/2 32 1/2 34 1/2 32 1/22 P.M. 34 32 34 32 34 32 4 P.M. 34 32 34 32 34 32 The petitioners have mentioned that their cold storage is managed by Shri Dinesh Chandra Shukla Manager and two others Shri Bhim Shanker Misra and Shri Suresh Chandra Shukla who maintain the record of the cold storage.

(3.) According to the petitioners on 25-10-1990, the District Horticulture Officer opposite party No. 2 without having given any prior notice of his visit for inspection of cold storage reached the cold storage and gave a written notice to Shri Narendra Singh, Chaukidar, in general terms that he wants to inspect the, potato lying in the cold storage premises, Narendra Singh, Chaukidar according to the petitioners expressed inability and noted on the side of notice as there was no responsible person present in the cold storage so he was unable to get inspection done. The petitioner's case is that they live in Lucknow and they or any one of them visitng the cold storage sometimes in a day or two as and when required and that on 25-10-1990 none of the petitioners was in Itaunja nor were they present when District Horticulture Officer visited the cold storage around noon time. The petitioners have further alleged that on 26-10-1990 petitioner No. 1 visited the cold storage and then Narendra Singh handed him over the notice which had been served on Narendra Singh by opposipte party No. 2, the District Horticulture Officer i.e. Annexure 2, to the writ petition. The petitioners further state that immediately thereafter petitioner No. 1 sent a registered letter to the District Horticulture Officer requesting him to fix a date and time when the records may be shown to him. The said letter was sent by registered post vide receipt No. 915 dated .2)6-10-1990 and has been annexed as Annexure 3. The petitioners' case is that it has falsely been stated in the first information report that records of the cold storage were not being shown to him and that petitioners violated the provisions of Section 27/28 and 40 of the Act The petitioners have further denied and stated that it has wrongly been mentioned in the first information report dated 26-10-1990 that a written direction was given for appearance of 'the petitioners or sending an employee for Helping at inspection. The petitioners further case is that petitioners had no prior notice of the District Horticulture Officer's visit to inspect the premises of the cold storage and the potato stored therein. The petitioners' case is that report dated 26-10-1990 had been lodged with haste and with mala fide and malicious intention of the District Herculture Officer and paragraph 19 of the petition the petitioners have mentioned that on account of those facts and circumstances narratd therein the District Horticulture Officer Shri Durg Vijai Singh did bear ill will against the petitioners and so the District Horticulture Officer purposely made a visit on 25-10-1990 i.e. at a time when the season of cold storage was almost over on the false grounds as hardly any stock was left and the report was lodged to harass the petitioners with malicious intention particularly when the inspection visit on 25-10-1990 was made without any prior notice. The petitioners' case is that neither in the Act nor in the Rules nor in the Control Order there is any mandatory condition prescribed as to the maximum or minimum temperature to be maintained by the licencee. They have further stated that no case has been made out of violation of any provision referred to in the first information report nor the first information report prima facie makes out a case of cognizable criminal offence involving complicity of the petitioners. It has further been mentioned that at the instance of the District Horticulture Officer the Station Officer of Police Station Itaunja arrested the petitioners' Manager Shri Dinesh Chandra Shukla from the cold storage of the petitioners on 27-10-1990. The Station Officer of Police Station Itaunja also took away cold storage records. The police accompanying the Station Officer, according to petitioners, did not only arrest Shri Dinesh Chandra Shukla and take the record but maltreated and misbehaved with Shri Shukla and when no case was made out and when the seized record did not disclose any violation of law the Station Officer released on bail Shri Shukla on the furnishing of the bail bonds by pettioner No. 2 for his release and returned all the seized goods. The petitioners further asserted that the District Horticulture Officer had been putting serious threat on the Station Officer to arrest the petitioners and put all kinds of pressure on the pretext of his being close to senior politicians and if the Station Officer did not arrest the petitioners the Station Officer was threatened that he will be in hot waters. The petitioners' case is that the first information report does not make out any ground for violation of the provisions of law and is misconceived in the eye of law. The petitioners' case is that the first information report is the result of malice and ill will borne by the District Horticulture Officer as per allegations in paragraph 19 of the petition under Section 482 of the Cr.P.C. Paragraph 19 reads as under: 19. That the District Horticulture Officer Shri Durg Vijai Singh has been constructing a house in Mahmood Nagar Society on Sitapur Road under the jurisdiction of Police Station (sic) Mandiem. He has an associate ("middle man) named, Jai Karan, reident of village Digoi. In the end of July, 1990 the said Jai Karan had contacted petitioner No. 1 and conveyed the message that the District Horticulture Officer is constructing the house and he needs money. The petitioner No. 1 was informed by Jai Karain that he should pay Rs. 10,000/- failing which he may be put in trouble. The petitioner No. 1 was further informed that other similarly placed cold storage owners had obliged the District Horticulture Officer. The petitioner No. 1 in order to ascertain whether the aforesaid demand was really made by the District Horticulture Officer even contacted him. The District Horticulture Officer admitted having sent Jai Karan for the purpose stated above. However, the petitioner No. 1 expressed his inability to him. Since then the District Horticulture Officer is annoyed and bent upon harassing the petitioners. The District Horticulture Officer, despite his previous visits in the month of August and Sept. 1990 in the said cold storage when he did not find any irregularity of any sort. He, therefore, could not take any action. It is noteworthy that if the temperature in the chamber was really as is mentioned in the first information report in August, 1990 and was inadequate then why for all this period, he did not rite to the petitioners that it violated any Act, Rule or Orders.