Anirudha Rastogi vs State of U.P.and Others

This writ petition has been filed for quashing an FIR under Sections 3/7, E.C. Act read with Sections 406, 407, 409, 415, 417 and 420 IPC, PS Gajraula, District Jyoti Ba Phoole Nagar (in short, JP Nagar) in Case Crime No. 961 of 2006.

Briefly, the allegations in the FIR were that an inspection as made on 1122005 by a team constituted by the District Magistrate, JP Nagar, consisting of SDM, Hasanpur, DSO, JP Nagar, SI, Weights and Measures, Amroha, Deputy Manager, I.S.I.O.C.L. Moradabad and Assistant Commissioner, Food and Civil Supplies, Moradabad, on the petitioner''s retail outlet of M/s. Hindustan Agencies, Gajraula and samples of diesel and petrol were taken. These samples were produced before the Forensic Laboratory, Agra, for analysis alongwith a letter of the District Magistrate, JP Nagar on 14122005. By letter dated 1252006 the Scientific Officer and Joint Director of the Forensic Laboratory sent their analysis report which found that the sample of diesel in bottle Nos. 5 and 6 was found to be adulterated. In this manner the petitioner was said to have violated the Control Order and the guidelines issued by the Government of India and Government Orders issued by the U.P. Government and an opportunity was given to the petitioner''s outlet M/s. Hindustan Corporation, Gajraula, to explain the said adulteration. On not finding the reply to the said show cause notice satisfactory, the FIR dated 2172006 was lodged by the supply inspector, tehsil Dhanora, against the petitioner.

We have heard Sri N.C. Rajvansi, Senior Advocate, assisted by Sri Ram Kishore Pandey, for the petitioner and learned AGA for the respondents.

It is contended by the learned Counsel that the counter affidavit had been called for in this case on 482006 but as no counteraffidavit has been filed, hence no coercive steps should be taken against the petitioner.

We are not impressed by the argument of the learned Counsel. In this case, there is allegation of adulteration of petrol and diesel. We had held in Crl. Misc. Writ Petition No. 1167 of 2007, Yashpal Singh v. State of U.P. and Ors., decided on 822007, as follows :

�Adulteration of kerosene oil with diesel, petrol and mobiloil is now becoming a cancer in our society and is causing immense damage to a large number of vehicles and harming the interest of innocent owners who go to filling station for filling their vehicles and staying investigation or granting stays of arrest in such matters can be extremely detrimental to society.�

As prima facie an offence of adulteration is disclosed, we see no reason to extend the earlier orders staying arrest of the petitioner simply on the ground that that the counter affidavit has not been filed. Even if the State and police are not watchful of their duties to the society and to the consumer, this Court must always be vigilant and a sentinel on the qui vive.

The said contention that the samples were sent with delay and the report was received after 5 months, it is also a matter of defence and it will be open to the petitioner to raise it during the trial at the appropriate stage, but it provides no ground for quashing the FIR.

The petitioner''s Counsel placed reliance on a decision in Harbanslal Sahnia and Anr. v. IOC Limited and Ors., AIR 2003 SC 2120. No doubt in that case some rules for taking the sample within 10 days was mentioned and the emphasis was made that there should be quality and density testing of the sample at the retail outlet itself in the presence of the dealer with necessary equipments and the same was held to be a sufficient ground for allowing the special appeal against the judgment of the High Court refusing to set aside the order to terminate the appellant''s dealership. As we have stated above, if there is any deficiency or delay in taking of the sample or in the conduct of the analysis for testing adulteration in the fuel, it would be open to the petitioner to raise these pleas during trial by reference to the appropriate rules and decisions. But at this stage it would be premature to permit the petitioner to raise the said plea in this writ petition.

Even the factum that the petitioner has obtained a stay order dated 3172006 in Civil Misc. Writ Petition No. 40396 of 2006 against an order dated 2272006 suspending the petitioner''s licence can provide no ground to the petitioner for quashing of the FIR or obtaining a stay of his arrest in these proceedings. In this connection it has been held by the Apex Court in State of Bihar v. Purshottam Singh, 2004 SCC(Cri) 63, that the criminal prosecution cannot ipso facto be quashed by the High Court on the solitary ground that the departmental proceedings have been quashed.

In this view of the matter, there is no force in this writ petition which is dismissed. The interim order granted earlier is vacated.