S.C. SHARMA Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS judgment shall dispose of Crl.M. No. 27651-M of 1997 and Crl.M. No. 11066-M of 2001, as common questions of law and facts are involved in both these petitions. However, for the purpose of convenience, facts of the case bearing Crl.M. No. 27651-M of 1997 may be noticed.

(2.) THIS petition has been filed by accused petitioners S.C. Sharma, Managing Director, Hind Fertilizers and Chemicals Industries Pvt. Ltd. and M/s Hind Fertilizers and Chemicals Industries Pvt. Ltd., through its Managing Director (petitioner No. 2), under Section 482 Cr.P.C., seeking quashing of the criminal complaint under Section 7 of the Essential Commodities Act, 1955, read with Sections 420, 427, 34, 120-B, 149 read with Section 161 IPC and all consequential proceedings arising therefrom. It was alleged that the petitioner No. 1 is the Managing Director of the petitioner No. 2 company and that both the petitioners are arrayed as accused in the criminal complaint, pending before the Special Judge, Rohtak, filed by complainant, respondent No. 2. It was alleged that the petitioner company manufactures various kinds of fertilizers, having valid registration certificate in this regard from the competent authority, under the Fertilizer (Control) Order. It was alleged that a notice was served by complainant-respondent No. 2, upon the petitioners, alleging that he alongwith about 70 persons had bought certain products from the shop of respondent No. 3 M/s Ram Nath and later on they suffered damages to their crops and sought compensation. It was alleged that reply to this notice was given by the petitioners, alleging therein that respondent No. 3 was not authorised dealer of the petitioner company. It was alleged that so far as present complaint instituted by respondent No. 2 against petitioners was concerned, there was no material against the petitioners, inasmuch as alleged dealer was not authorised dealer of the petitioner company and the petitioner company had no knowledge about sale of the products, if any, by the alleged dealer, respondent No. 3. It was alleged that Special Judge had erred in law by taking cognizance of the complaint filed by respondent No. 2 against the petitioners. It was alleged that no sample was taken and without following the set procedure, the sample could not be found to be sub-standard. It was alleged that the criminal complaint and all subsequent proceedings taken thereon qua petitioners were liable to be quashed. It was alleged that neither any sample was drawn nor any sample was got tested from the concerned laboratory and as such no offence had been committed by the petitioners. It was accordingly prayed that the criminal complaint and all subsequent proceedings taken against the petitioners be quashed. In the petition under Section 482 Cr.P.C. petitioners had impleaded State of Haryana as respondent No. 1, complainant Ram Kumar as respondent No. 2 and alleged dealer Ram Nath @ Pappi, Prop. M/s Do Bhai Fertilizers as respondent No. 3. No reply was filed by complainant respondent No. 2 Ram Kumar. However, a reply was filed by State of Haryana to the effect that on the complaint made by Deputy Director, Agriculture, Rohtak, FIR No. 7 dated 6.1.1997 under Section 7 of the Essential Commodities Act read with Sections 420 IPC and 3/19 of the Fertilizer (Control) Order (wrongly stated as Fertilizer Act) was registered against Ram Nath @ Pappi and that after completion of the investigation, challan was presented in the court and the same was pending adjudication in the court of Special Judge, Rohtak. Subsequently, petitioners placed on record copy of the summoning order, Annxure P11 and copies of the statements made by the complainant as witnesses during preliminary evidence as Annexures P8 to P10. So far as Crl.M. No. 11066-M of 2001 is concerned, the same has also been filed by the same petitioners, seeking quashment of the criminal complaint filed by respondent No. 2, Satbir, on similar grounds. In this petition also no reply has been filed by the complainant respondent No. 2.

(3.) LEARNED counsel for the accused petitioners in both the cases has submitted before me that there was no allegation in the criminal complaint that the complainant had purchased the fertilizers against any cash memo. It was submitted that only cash memo could show the brand name of the fertilizers allegedly purchased by them. Reliance in this regard has been placed on the law laid down by the Hon'ble Supreme Court, in the case reported as Consumer Action Group v. Cadbury India Ltd. and another, 2000(1) Recent Criminal Reports 548. It was further submitted that there was absolutely nothing on record to show that accused petitioners had sold any fertilizers to accused No. 1 namely Ram Nath @ Pappi, propriety of M/s Do Bhai Fertilizers, from whom the complainant had allegedly purchased the fertilizers. It was further submitted that there is nothing on record to show that accused No. 1 Ram Nath @ Pappi was having any licence for the sale of fertilizers. Similarly, there was nothing to show that he was dealer of the present petitioners for the sale of fertilizers. It was further submitted that no sample of the alleged fertilizer was drawn by any person in authority nor the alleged sample was ever sent to the Analyst for analysis and as such it could not be said that any offence had been committed by the petitioners. Reliance in this regard was placed on the law laid down by a Division Bench of this Court, in the case reported as Ashwani Kumar v. State of Punjab and another, 1993(2) Recent Criminal Reports 145. It was further submitted that under Section 12-AA(2) of the Essential Commodities Act, 1955 (as applicable at the relevant time), it was provided that when trying an offence under this Act, the Special Court may also try an offence, other than an offence under this Act, with which the accused may, under the Code, be charged at the same trial, provided that such other offence, is under any other law for the time being in force, triable in a summary way. It was submitted that as per the summoning order, besides the offence under Section 7 of the Essential Commodities Act, the petitioners have been summoned for the offences under Sections 420, 427, 120-B, 161, read with Section 34 IPC, in the criminal complaint, which is subject matter of Crl.M. No. 27651-M of 1997 and under Sections 420, 427, 120-B, 161, 149 IPC, in the criminal complaint which is subject matter of Crl.M. No. 11066-M of 2001. It has been submitted that out of these offences only offence under Section 427 IPC is an offence which could be tried summarily, in view of the provisions of Section 260 Cr.P.C., whereas the offences under Sections 420 and 161 IPC are not summarily triable, as both the offence are punishable with imprisonment for more than 2 years.