Darshan Singh vs State of Punjab

Harmohinder Kaur Sandhu, J.

Darshan Singh, Salesman of Ganga Cooperative Agricultural Service Society Limited, has filed this petition under Section 482 Criminal Procedure Code for quashing of FIR No. 111 dated 25.7.1990 Annexure P2 registered at Police Station, Lehra, under section 7 of the Essential Commodities Act read with Clause 19(1)(a) of Fertilizer Control JUDGMENT 1985 and all subsequent proceedings rising therefrom.

The above referred case was registered against the petitioner at the instance of Gurdial Singh, Fertilizer, Inspector, LehraGaga, who drew a sample of DAP Fertilizer from the premises of the Society on 24.1.1990 in the presence of Shri Ramesh Chander. Sample was drawn from each lot separately in a clean newspaper sheet and the collected material was thoroughly mixed and three representative samples were prepared each weighing 500 grams in thick gauged polythene bags. One sample was sent to the Analyst Chemist, Punjab Ludhiana, who found the same to be nonstandard. On receipt of this report Chief Agricultural Officer, Sangrur, sent a letter to Senior Superintendent of Police, Sangrur for registration of the case against Darshan Singh, Salesman of the Society and Shri T.R. Chadha, Chief Manager, Indian Potash Limited, 727 Pathari Road, Madras.

The petitioner alleged that the sample was not drawn in a proper manner and the fertilizer was found nonstandard for not drawing the sample in prescribed method. According to the report Annexure P1 of the Analyst the sample was found not according to the specification and it was nonstandard. Disposal of nonstandard fertilizer was not a crime and only restrictions were on the manufacture, sale and distribution of fertilizer which was not of prescribed standard. There were no allegations against the petitioner that he was incharge of and was responsible for the conduct of business of the Society. Unless he was shown to be incharge of or responsible to the manufacturing unit of the said fertilizer, he could not be hauled up for any offence. It was further alleged that no prosecution could be launched against the petitioner without arranging the society as an accused. The offences under the Essential Commodities Act were triable by the Special Court in a summary manner and the challan should have been presented within six months as envisaged under Section 167 of the Code of Criminal Procedure. The case was registered on 25.7.1990 and the petitioner was arrested on 27.7.1990, but the Challan was presented on 3.3.1992 i.e. after the expiry of six months. No application for extension of time for further investigation was moved by the investigating officer.

In the written statement it was contended that sample of fertilizer was drawn strictly in accordance with the procedure laid down in ScheduleII of Fertilizer Control JUDGMENTs, 1985. The sample was declared substandard and, thus, there was a violation of the Fertilizer Control JUDGMENTIt was admitted that nonstandard fertilizer could be disposed of but there were some conditions for the disposal of the same as provided in Clause 23(b) & (c) of the Fertilizer Control JUDGMENTIt was further maintained that the petitioner was fully incharge of handling the sale of fertilizer of the Society and was responsible for violation of the provisions of the order.

I have heard the counsel for the parties.

It was argued on behalf of the petitioner that the sample was seized from the premises of the Ganga Cooperative Agricultural Service Society Limited. The petitioner was the Salesman of the Society but in the first information report it was nowhere alleged that he was incharge of and responsible for the conduct of the business of the society. So without impleading the society and without mentioning this fact that he was incharge, he could not be presecuted as such. A reference was made to Section 10 of the Essential Commodities Act, 1955 which provide, if the persons contravening an JUDGMENT made under Section 3 is a company, every person who at the time of the contravention was committed was incharge and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Explanation : For the purpose of this section a company means any body corporate and includes a firm and other association of individuals. It was urged that the expression ''company'' included within its ambit a Cooperative Society and, thus, if any contravention of any order promulgated under Section 3 of the Essential Commodities Act was violated, the Society as well as person who at the time of contravention was Incharge of the business of the society would be responsible for such contravention. In support of his contention the learned Counsel placed reliance on the case of Jaipal Singh v. State of U.P. and others, 1982 Crl. L.J. 430. In this case it was held that in view of explanation of Section 10 of the Act the expression ''Company'' included within its ambit a Cooperative Society.

In the above mentioned case although it was observed that a Cooperative Society comes within the perview of a company and was liable for any contravention of an order promulgated under Section 3 of the Act, a salesman too was prima facie liable being responsible for the conduct of the business of the Society.

It was further observed :

"In the instant case if the allegation that levy sugar entrusted to society for distribution to various rationholders, had been sold by its employee in black be correct, there can be no doubt that the society which was the authorised retailer would be guilty of contravention of the provisions contained in Clause 3(b) of the U.P. Sugar (Control) JUDGMENTAs the petitioner was at the time of such contravention working as the salesman of the Society and was incharge of its business, he would also, be, in view of the provisions contained in Section 10 of the Act, equally responsible for such contravention and he can be accused of committing an offence punishable under Section 3/7 of the Essential Commodities Act. Merely because the detaining authority did not while stating in the ground that the petitioner appeared to have committed an offence punishable under Section 3/7 of the Essential Commodities Act make a reference to the provisions of Section 10 of the Essential Commodities Act which made him liable for such offence is of on consequence."

In the instant case a showcause notice was given to the petitioner copy of which is Annexure R/2 and he sent reply Annexure R3 alleging that he was not incharge of the fertilizer from which sample was drawn. A note was also given by the Secretary to the effect that the fertilizer in question was in the charge of ExSalesman Amarjit Singh who had not handed over the charge to the Society. It is, thus, primafacie made out that in fact the salesman is incharge of the fertilizer and he sells it to various farmers. The question whether the exsalesman handed over the fertilizer to the petitioner or not can be determined only after evidence is led. The liability of the person who is actually guilty will be fixed after trial and the complaint can proceed against the petitioner on the principle of deemed guilt. If he is not responsible, he can always take a plea before the trial court and invite a decision thereon. The first information report cannot be quashed on that ground.

The question whether the sample was drawn as per rules will also be decided at the time of trial. In the first information report the manner in which the sample was drawn and the quantity of the sample drawn are specifically mentioned and prima facie this case does not suffer from any infirmity on that account.

It was urged on behalf of the petitioner that the offences under the Essential Commodities Act are triable in a summer manner and the challan should have been presented within six months in accordance with the provision of Section 167 of the Code of Criminal Procedure, but in the instant case challan was presented after the expiry of six months from the date of arrest of the petitioner and no application for permission of the Court for extension of time was moved, so FIR was liable to be quashed on this ground.

This contention of the learned counsel is also without merit. In State of West Bengal v. Falguni Datta and others, 1993(2) Recent Criminal Reports 431 : 1993 Supreme Court Cases (Criminal) 815 , it has been held that even in a case where the police report under Section 173(2) of the Code of Criminal Procedure has been filed after the expiry of six months the Special Court was competent to entertain the police report, restricted to six months investigation and take cognizance on the basis thereof. The FIR, therefore, cannot be quashed on this ground that the challan was presented in Court after the expiry of six months.

No other point was pressed before me.

The petition is devoid of any merit and the same is hereby dismissed.