M.N.Jawahar vs State of Punjab

M.L. Singhal, J.

This is criminal misc. petition filed by M.N. Jawahar, Joint General Manager (D&T) now working as General Manager (Distribution and Imports) of M/s Southern Petrochemical Industries Corporation Limited, 97 Mount Road, Madras, under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India whereby he has prayed for the quashing of the complaint Annexure P1 filed under Section 7 of the Essential Commodities Act (hereinafter to be referred as the Act) read with clause 19(1)(a) of the Fertilizer Control JUDGMENT against him.

Facts which have given rise to this petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India are as under :

On 13.12.1994 Ashok Kumar, Fertilizer Inspector Hoshiarpur accompanied by Jasbir Singh Parmar, Agricultural Development Officer visited the premises of M/s Tember Fertilizers and Pesticides, New Grain Market, Hoshiarpur. At that time, Jasbir Singh who is retailer of fertilizer Diaammonium phosphate 18:46 was present in the said business premises. Stock of 212 bags each weighing 50 Kgs. of Diaammonium phosphate 18:46 SPIC Brand was lying with the said firm for sale to the public. Shri Ashok Kumar, Fertilizer Inspector, disclosed his identity to Sh. Jasbir Singh, retailer and then manifested his intention to seize sample of Diaammonium phosphate 18:46 with a view to have the same analysed. In compliance with the procedure given in the Fertilizer Control JUDGMENT Sh. Ashok Kumar, Fertilizer Inspector selected 4 bags at random. All these bags were of the same brand having been stored, arranged and kept in rows in the shop systematically. 4 to 5 kgs. of fertilizer was taken out of each of the said 4" bags with probe which was inserted from one corner to another. Fertilizer so drawn was put on dry polythene sheet and was kept on hard surface. It was divided into four equal parts. Then he removed two diagonally opposite parts. This operation was operated till a composite sample remained to about 1.5 kgs. weight. It was divided into three equal parts of about 400 grams each in weight. Each of the samples was transferred to a clean dry, thick gauged polythene bag. Each test sample was prepared and was further put into dry, empty cloth bags along with formJ. Shri Jasbir Singh put signatures on formJ i.e. seizure memo. Five copies of formJ were prepared at the spot duly signed by Ashok Kumar, Fertilizer Inspector, attested by Sh. Jasbir Singh Parmar, Agricultural Development Officer, Hoshiarpur. Three copies of formJ were put in three test samples. Each sample bag was tied with thread so as to make it air tight. These test samples were sealed by Ashok Kumar with his seal. FIHIH Pir H.Q.''. Jasbir Singh, proprietor of retail firm also put his seal bearing mark `TEPH'' on these samples. Two Kforms were also filled and completed in the presence of Jasbir Singh, proprietor of the retail firm as well as in the presence of Jasbir Singh Parmar, Agricultural Development Officer. One part of three sealed test samples along with formJ was handed over to Jasbir Singh sole proprietor of the retail firm. Second test sample along with Kform was deposited in the fertilizer quality control laboratory, Faridkot. Third test sample was deposited with the office of Chief Agricultural Officer, Hoshiarpur together with formK. Analytical Chemist, Incharge of the Fertilizer Quality Control, Laboratory, Faridkot analysed the sample and found vide analyst report that the sample was not according to the specifications inasmuch as water soluble P2O5 content was less than the prescribed in the Fertilizer Control

On receipt of the analyst report Annexure P3 complaint annexure P1 was filed under clause 19(1)(a) of the Fertilizer (Control) JUDGMENT 1985 read with Section 7(1)(a)(ii) of the Essential Commodities Act 1955.

In his prayer for quashing of the complaint Annexure P1 qua him Sh. M.N. Jawahar petitioner has pleaded that in complaint Annexure P1 there is no allegation against him that he was incharge of and responsible to the company for the conduct of its business or manufacturing unit of the fertilizer. The said fertilizer was manufactured/supplied by M/s Southern Petrochemical Industries Limited, Madras. There is no allegation in the complaint that sample was found nonstandard and that he had connivance or knowledge in the nonstandard quality of the said fertilizer. Under Section 10(1) of the Act if an offence was committed by a firm, prosecution has to allege and prove by placing material on record that the persons sought to be made liable were incharge of and were responsible to the firm for the conduct of its business. No prosecution has been launched against the company. Prosecution has been launched against the petitioner on the assumption that he was incharge of and was responsible to the company for its business. Section 10 of the Act provides that firm/company has also to be proceeded against. If any contravention of the Act or the Fertilizer (Control) JUDGMENT takes place a partner/employee of the firm/company cannot be held liable without the company being held liable. M/s Southern Petrochemicals Limited, Madras was the supplier of alleged fertilizer. The petitioner was doing business not for his personal benefit but for the benefit of the company. Without arraigning the company he could not be proceeded against. It is further pleaded that the vires of the Fertilizer (Control) order were challenged in a number of writ petitions one of which is CWP No. 5643 of 1995 in which it was held that right of reanalysis is valuable right as certificate of the Director supersedes the report of the Public Analyst. When no right of reanalysis of the sample is provided in the Fertilizer (Control) JUDGMENT there is violation of Articles 19 and 21 of the Constitution of India and the prosecution under Section 7 of the Act read with clause 19 of the Fertilizer Control JUDGMENT has to be quashed.

Prayer of the petitioner M.N. Jawahar has been opposed by the respondent urging that the petitioner was Incharge of and responsible to the business of the company. He was the person responsible for the quality control aspect of the fertilizer manufactured by the company. He was appointed under the Fertilizer (Control) JUDGMENT 1984 as a person responsible for the quality and production of this fertilizer by the firm M/s Southern Petrochemicals Industries Corporation Limited.

It has been submitted by the learned counsel for the petitioner that according to the allegations made in the complaint fertilizer in question was manufactured by M/s Southern Petrochemical Industries Corporation Limited. Without the firm/company having been arraigned, no complaint is competent so far as the person who is incharge of or responsible to the company for the conduct of the business of the company is concerned. In support of this submission he drew my attention to the provisions of Section 10(1) of the Essential Commodities Act. Section 10(1) of the Essential Commodities Act lays down that if the person contravening an order under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, 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, provided that nothing contained in this subsection shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

On the strength of the provisions of Section 10 ibid he has submitted that it is the company who is principally liable because the profits if any go into the coffers of the company. Person incharge of and responsible to the company for the conduct of the business of the company will come afterwards. If the complaint is not directed against the company, no complaint is competent against the said person. He has sought to draw sustenance for this submission from judgments in Vidyawati and others v. State, 1988(2) Recent CR 471 , Som Nath and another v. State of Punjab, 1993(2) Recent CR 582 , G.S. Nagpal v. State of Punjab, 1994(1) Recent CR 347 , R.C. Gupta v. State of Haryana, 1994(2) Recent C.R. 418 and V.K. Sharma v. State of Punjab, 1996(2) Recent C.R. 217. It is true that in these authorities the view taken is that prosecution against an employee of the company without arraigning the company as an accused is not competent as employee of the company will be liable to be punished only if it is found that the company was itself responsible for the contravention. He has drawn by attention to the State of Madras v. C.V. Parekhand, AIR 1971 SC 447 in support of his submission that liability of person incharge of and responsible to the company for the business of the company can arise only when contravention is by the company itself.

So far as M.N. Jawahar petitioner is concerned there is certificate Annexure R2 by the company itself that he was person responsible for quality control aspect of the fertilizer manufactured by the company during 19931994 and 19941995. Learned AAG Punjab on the other hand has drawn my attention to 1996(3) Recent C.R. 393 in support of the submission that person incharge of and responsible to the business of the company is liable for contravention. Under Section 10(1) of the Essential Commodities Act when the offence is committed by the company then the company is responsible and also the person incharge of and responsible to the company for the conduct of its business.

In this case, however, there can be no reason to quash this complaint against the petitioner as there is power vesting in the Court under Section 319 of the Code of Criminal Procedure to summon any one against whom there is accusing finger though he may not have been sent up for trial. Similarly the right of the complainant is not foreclosed for invoking the power vesting in the Court under Section 319 of the Code of Criminal Procedure. The complaint is in the initial stages.

It is question of evidence whether M.N. Jawahar was incharge of and responsible to the company for the conduct of its business. It can be proved at the trial that he was incharge of and responsible to the company for the conduct of the business of the company.

It has been submitted by learned counsel for the petitioner that the sample of Diaammonium phosphate 18:46 was found to be deficient only in water solubility which has not affected its quality and it has not caused wrongful gain to the company or concerned dealer. It has been submitted that the Director, Agriculture has instructed the Chief Agriculture Officer not to proceed against such dealers. He has drawn my attention to Annexure P4 in this behalf.

Suffice it to say that it is not for this Court to take this aspect into account. It is for the executive authorities to take this aspect into account, if they permit withdrawal of such prosecution and the Court accepts the withdrawal. As per analysis report sample of the fertilizer did not conform to the prescribed standards and as such was not according to the specifications.

Even otherwise it is not that rarest of rare cases that this Court should exercise power vesting in it under Section 482 of the Code of Criminal Procedure and quash prosecution. In Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892 the apex Court examined the extent of the inherent power conferred by Section 482 of the Code of Criminal Procedure on the High Court and observed as under :

"The inherent power conferred by Section 482 of the Code of Criminal Procedure should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Of course no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage."

In view of what I have stated above, I am of the opinion that the interest of justice does not demand that this Court should quash prosecution at the very outset. So, this Criminal Misc. Petition fails and is dismissed.