VIRENDER GOSWAMI Vs. STATE OF PUNJAB AND ANOTHER

JUDGEMENT

(1.) THIS petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) for quashing of criminal complaint No. 149 -2 of 2008 dated 16.4.2008 titled as "State vs. M/s. Aman Khad and others" under Clause 19(a) of the Fertilizer (Control) Order, 1985 (the Order for short), punishable under Section 7 of the Essential Commodities Act, 1955 (Annexure P -2) (the Act for short) and all the subsequent proceedings arising therefrom including summoning order dated 10.8.2011 (Annexure P -1). Learned senior counsel for the petitioner has submitted that the trial Court had erred in summoning the petitioner to face the trial as additional accused on an application moved by the accused in the absence of any evidence available on record against the petitioner. As per the case of the complainant, the fertilizer in question was being manufactured by M/s. U.S. Borax Inc. California. It was being imported and marketed by M/s. Rallis India Ltd. As per the memorandum of agreement, M/s. Rallis India Ltd. was described as the buyer and M/s. U.S. Borax Inc. California was described as seller. As per the Trade Mark License, the licensee would, inter alia, repack and redistribute the product marketed with the Trade Marks in India. Section 2 of the Act was added in the Act w.e.f. 12.2.2007. The Central Government could exercise its powers under Sub section (2) in respect of the commodity to which Parliament has power to make laws by virtue of entry 33 in List III in the Seventh Schedule to the Constitution. As per the said entry No. 33, trade and commerce in and the production, supply and distribution of the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest and imported goods of the same kind as such products. At the time of addition of the said provision in entry No. 33 during debate, it was submitted that words " and imported goods of the same kind as such products" had been added so that they come within the Government regulation.

(2.) LEARNED senior counsel for the petitioner has further submitted that importer was defined in the Order w.e.f. 18.6.1993. Learned Senior counsel has referred to Clauses 2 (o), 7, 19, 21, 21 -A and 24 of the Order to substantiate his argument that manufacturer can be arrayed as an accused if goods are manufactured in India but in case the goods are manufactured in a foreign country and are imported by another company and are marketed by the importing company then only the importing company is liable to be proceeded against if the product is not found as per the standard prescribed under the provision of the Order.

(3.) THE case of the complainant, as per complaint (Annexure P -2), in brief, is that on 22.12.2006, shop of M/s. Aman Khad and Pesticide Bhandar was checked. Samples were drawn from the bags of fertilizer Solubar Disodium Octa Borate Tetra Hydrate Boron 20% (Imported) Manufactured by M/s. U.S. Borax Inc. California, imported and marketing by M/s. Rallis India Ltd.. As per the report of the Analyst, the sample was declared not according to specification and failed in nutrient content. Show cause notice was issued to the dealer along with the test report. Show cause notice was also sent to the importer along with the report of the analyst.