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 Section 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 and Ice Factory in village Itaunja, District Lucknow. According to petitioners' case the petitioners' cold storage was established in 1979 and it was duly 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 agriculturist, 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 electricity. In paragraph 10 of the petition, the petitioners, have stated that the temperature of each chamber is recorded every day 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 chamber during dry and wet season which is as under :

(3.) TO this petition, supported by an affidavit, counter-affidavit has been filed on behalf of opposite parties 1 and 3 but no counter-affidavit has been filed on behalf of the District Horticulture Officer, irrespective of the fact that specific allegations of mala fide and malice have been made in the petition. It may be mentioned here that it has admitted in paragraph 11 of the counter-affidavit with reference to the allegations of paragraph 11 of the petition that it is correct that neither in the Act nor the Rules framed under the Act nor under any Control Order there is any condition which may be said to have prescribed mandatorily the minimum or the maximum temperature to be maintained by the licensee. It has only been stated that from technical point of view the chamber of cold storage must have the temperature of 3 degree F. H. It may also be mentioned here that allegations of paragraph 4 of the petition to the effect that for the last 12 years prior to the relevant year 1990 the petitioners had been running the cold storage in accordance with the provisions of the Act and Rules and relevant Control Order since the establishment of the cold storage and there had been no complaint either from hirers or from any of the parties in respect of the goods stored there or for proper functioning of the cold storage have not been denied or commented in the counter-affidavit filed by the opposite party No. 3 i.e., Sub - Inspector Police Station Itaunja. It is also admitted that potato season runs from the middle of May to middle of Nov. Each year during which the potato is stored in the cold storage. According to the case of opposite-party No. 3 the petitioner's cold storage have violated the provisions of law. In the counter-affidavit it has also been stated that there is no provision for giving any prior notice by the District Horticulture Officer to the licencee running the cold storage and that the sudden inspection by a competent officer, according to the affidavit of Sub-Inspector had been perfectly valid. The Sub-Inspector in his affidavit has stated that no first information report was lodged against Shri Durg Vijai Singh, the District Horticulture Officer when he had demanded Rs. 10,000 from the petitioners nor was any information or complaint sent to any police officer. In the counter-affidavit it was stated by Sub - Inspector that some nineteen cultivators had made complaint to the Director Horticulture but the complaint was sent by the Director to the competent officer and in those circumstances the competent officer i.e. District Horticulture Officer inspected the cold storage and he having found the breach of law and rules lodged the first information report and the same had been entered as a crime case as mentioned above. Rejoinder affidavit had been filed in reply to the counter-affidavit filed on behalf of opposite-party No. 3. In the rejoinder-affidavit it has further been stated that since after 25-7-1987, the District Horticulture Officer does not exercise the power of Licensing Officer, as such, he could neither have carried out inspection of the petitioners' cold storage nor was he entitled nor could be, as such, lodge the first information report, Annexure 1 to the writ petition and that according to the averments in the rejoinder-affidavit the District Horticulture Officer acted without jurisdiction and legal authority in lodging the first information report on the basis of the alleged inspection, which, according to the petitioners was an illegal act. It was also stated in the rejoinder-affidavit that in fact none of the cultivators or hirers had any grievance against the petitioners while taking the delivery of the stored potatoes nor the District Horticulture Officer had forwarded to the petitioners the alleged complaints of the cultivators or farmers said to have been received by the District Horticulture Officer (sic) which, according to the petitioners ought to have been brought to the notice of the petitioners if the said complaints had been received by opposite party No. 2, the District Horticulture Officer. According to the petitioners the said allegations in the first information report were a mere concoction. The petitioners in the rejoinder-affidavit have also denied the correctness of the required temperature for the storage of potato in the cold storage to be 34 degree F. Dry and 32 degree F. wet or 1.30 celsius, the petitioners have denied the correctness of the data. The petitioners case is that there being nothing on record to indicate about the qualification, knowledge or experience of the officer concerned who purports to have issued the opinion (Annexure-3) to the counter-affidavit i.e. the opinion of the alleged expert cannot be deemed to be an expert opinion. Supplementary affidavit had been filed on 11-7-1991 whereunder it has been stated that the District Horticulture Officer had been delegated only the powers under Section 40 of the Act vide Notification dated July 11, 1978, Annexure-61 and so according to the petitioners the District Horticulture Officer had no power to lodge the first information report as the delegation was limited to the exercise of powers under Section 40 of the Act. To this supplementary affidavit a counter-affidavit has been filed on behalf of the opposite party No. 2 i.e., the District Horticulture Officer and this counter-affidavit to supplementary affidavit appears to have been sworn and filed by Shri Durg Vijai Singh, District Horticulture Officer, Lucknow. Only paragraph 4 of the supplementary counter affidavit is material. In reply to paragraph 4 of the supplementary affidavit it has been stated that though Section 40 of the Act deals with the power of Licensing Officer regarding inspection of the cold storage. In the present case the Licensing Officer was not allowed to inspect the records of the cold storage, as such there was no option left with the Licensing Officer and he lodged the first information report against the owner of the said cold storage. A perusal of this paragraph shows that thee was no specific denial of the allegation contained in paragraph 4 of the supplementary-affidavit that there was no delegation under Section-40 of the Act, of the power to lodge the first information report vide counter-affidavit dated 5-9-1991. A rejoinder-affidavit to the counter-affidavit of opposite party No. 2 to the supplementary-affidavit was filed on behalf of the petitioners on 26-11-1991 whereunder it has been re-asserted that it is wrong to say that Licensing Officer was not allowed to inspect the records of the cold storage and, therefore, he lodged the first information report. The petitioners further reasserted that as a matter of fact neither the petitioners nor any of their clerks, were present in the cold storage premises at the time when the District Horticulture Officer, Lucknow had visited the cold storage on 25-10-1990, and, as such, on being informed about this fact that neither the petitioners nor any of their clerk was available by Shri Narendra Singh Chaukidar, on the gate the District Horticulture Officer had returned without making inspection and there was no question of not showing the records by the petitioners to District Horticulture Officer on the said date of visit of the District Horticulture Officer as petitioners had no prior information or notice of the same. The petitioner further stated that power though had been delegated to the District Horticulture Officer by earlier order dated 11-7-1978 but that had been withdrawn and the said order was cancelled by subsequent orders dated 25-7-1987 by the Director of Horticulture and Fruit Utilisation, Uttar Pradesh, in exercise of power under Section 2(g) of the Act, and, as such, according to the petitioner District Horticulture Officer had no power of Licensing Authority and so he could neither make lawful inspection of the cold storage and its records nor could lodge the imposed first information report. The petitioners have annexed the order dated 25-7-1987 passed by Director of Horticulture whereunder it has been provided that “exercising the power conferred under Section 2(g) of the Act,” the Director Horticulture empowered the Deputy Director (Potato) Uttar Pradesh to exercise the powers of Licensing Authority, Cold Storages, Uttar Pradesh, where by all the orders passed earlier were cancelled. The learned counsel for the petitioners submitted that by this order the Deputy Director (Potato) Uttar Pradesh had been authorised and conferred the power of Licensing Authority cold storage and all other earlier notifications issued in this regard were being cancelled. On behalf of the opposite parties a further supplementary counter-affidavit was filed and alongwith that supplementary counter-affidavit, true copies of notifications dated 11-8-1978 as well as dated 28-2-1987 and 25-7-1987 have been annexed. By notification dated 27-7-1987 modification was introduced to the effect by adding the following expression, the expression added is: “ NIDESHALAYA STAR PAR LICENSING ADHIKARI KE SHAKTIYON KA PRAYOG KARNANE HETU”. On behalf of the petitioners the petition had been argued vehemently by Shri S. C. Misra, learned counsel for the petitioners at great length and on behalf of the opposite-parties Shri Brieshwar Nath, learned Loka Abhiyojak Government Advocate did put in appearance and made his submissions contesting the petition.