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M.P.SINGH versus THE STATE OF PUNJAB THROUGH CHIEF, AGRIC

High Court of Punjab and Haryana, Chandigarh

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M.P.Singh v. The State of Punjab through Chief, Agric - CRM-21302-m-2005 [2006] RD-P&H 3400 (24 May 2006)

1 CRIMINAL MISC. NO. 21302-M OF 2005

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

***

CRIMINAL MISC. NO. 21302-M OF 2005

DATE OF DECISION: May 31, 2006

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M.P.Singh son of Shri Vas Dev Singh, resident of kothi no. 6, Sector 11, Chandigarh.

Versus

1. The State of Punjab through Chief, Agricultural Officer, Faridkot;

2. M/S Guru Nanak Khad Store, Faridkot, through its partners:- a) Narinder Kumar son of Shri Brij Kishore, r/o Mohalla Pandtan Wala, House No. B-233, Faridkot;

b) Shri Rajinder Parshad Jain, son ofShri Faquir Chand Jain, resident of Bala ji Colony, Faridkot;

c) Shri Ajay Gaur son of Shri Ram Parkash Gaur, Resident of Mohalla Talab, House No.B-6/145, Faridkot.

3. M/S Shiv Shakti Cement Store, Old Grain Market, Faridkot, through its partners:-

a) Narinder Kumar son of Shri Brij Kishore, resident of Mohalla Pandtan Wala, House No.B-233, Faridkot;

b) Shri Rajinder Parshad Jain, son of Shri Faquir Chand Jain, resident of Balaji Colony, Faridkot.

4. Shri M/S S.F.L.Industries Limited, SCO No. 457-458, Sector 35-C, Chandigarh.

5. Shri Naiter Singh, Production Manager, resident of Village & P.O. Railmajra District Nawanshahr, Punjab.

****

CRIMINAL MISC. 31217-M OF 2005.

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Harbhajan Singh son of Shri Atma Singh, resident of House No. 57, Golf Links, New Delhi.

Versus

1. The State of Punjab through Chief Agricultural Officer, Faridkot;

2. Jagjit Singh; 2 CRIMINAL MISC. NO. 21302-M OF 2005

3. Manjit Singh;

4. Avtar Singh;

5. Sukhdev Singh, all residents of and partners of M/S Rajiana Kheti Store, Bhaghapurana, Tehsil Moga, District Faridkot.

6. Shri Rajinder Singh, Production Manager, c/o M/S Shivalik Fertilizers Limited V.P.O. Rail Majra, District Ropar and also at M/S S.F.L. Industries Limited, SCO No. 457-458, Sector 35-C, Chandigarh.

....Respondents.

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CRIMINAL MISC. NO. 31215-M OF 2005

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Shri Deepak Singh son of Shri Harbhajan Singh, resident of House No. 235, Sector 9, Chandigarh.

Versus

1. State of Punjab through Chief Agricultural Officer, Faridkot;

2. Jagjit Singh;

3. Manjhit Singh;

4. Avtar Singh;

5. Sukhdev Singh, all partners of M/S Rajiana Kheti Store, Bhaghapurana, Tehsil Moga District Faridkot.

6. Shri Rajinder Singh, Production Manager, C/o M/S Shivalik Fertilizers Limited VPO Rail Majra, District Ropar and also at M/S S.F.L. Indistries Limited, SCO No. 457-458 Sector, 35-C, Chandigarh.

*****

CRIMINAL MISC. NO.43743-M OF 2005.

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Mrs. Rupinder Kaur wife of Late Shri Surinder Singh, Resident of 57, Golf Link, New Delhi.

Versus.

1. State of Punjab through Chief Agricultural Officer, Faridkot;

2. Jagjit Singh;

3. Manjhit Singh; 3 CRIMINAL MISC. NO. 21302-M OF 2005

4. Avtar Singh;

5. Sukhdev Singh, all partners of M/S Rajiana Kheti Store, Bhaghapurana, Tehsil Moga District Faridkot.

6. Shri Rajinder Singh, Production Manager, C/o M/S Shivalik Fertilizers Limited VPO Rail Majra, District Ropar and also at M/S S.F.L. Indistries Limited, SCO No. 457-458 Sector, 35-C, Chandigarh.

*****

Petition under Section 482 of the Code of Criminal Procedure for quashing the complaint filed under Section 19(i)(a) of the Fertilizer Control Order, 1985 read with Section 7 of the Essential Commodities Act, 1955.

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Present: Shri Anand Chibber, Advocate, for the petitioner in all the petitions.

Shri Narinder Kapoor, Assistant Advocate General, Punjab, for the respondents.

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R.S.MADAN, J

This order of mine shall dispose of all the four criminal misc.

petitions bearing Nos.21302, 31217, 31215 and 43743-M of 2005, fully described above, as in all these petitions common question of law and facts are involved.

In all these petition, the petitioners by way of filing the instant Criminal Misc. Petitions under Section 482 of the Code of Criminal Procedure have crave the indulgence of this Court for quashing the complaints dated 21.12.1999 and 6.10.1994 (Annexure P-1 in all the petitions) filed under Section 19(i) (a) of the Fertilizer Control Orfder, 1985 read with Section 7 of the Essential Commodities Act, 1955, and read with Section 12(aa) of the Essential Commodities Act, 1995, pending in the courts at Moga and Faridkot exercising the powers of Special Judge, and the summoning orders dated 5.3.2003 and 25.2.2005 (Annexure P-2 in all the petitions) respectively.

In brief, the facts of case bearing No. 21302-M of 2005 are that on 4 CRIMINAL MISC. NO. 21302-M OF 2005

28.5.1998 Shri Kuldeep Singh, Fertilizer Inspector along with Harbans Singh, Agricultural Sub Inspector, Faridkot visited the shop of M/S Guru Nanak Khad Store and found Shri Narinder Kumar, Partner of the firm present at that time.

After disclosing his identity and the purpose of visit to Shri Narinder Kumar, checked the record and found 541 bags ( each 50 Kgs. Packing) bearing lot No.

137-D-18 of Single Super Phosphate 16% in stock , which were duly machine stitched. He prepared the requisite forms J, K and F at the spot. He tried to associate with him one of the customer from those who were present at the shop but none of them was willing to join as a witness. He then joined Harbans Singh, Agrl. Sub Inspector as a witness and took his signatures on form J. He then selected five bags from the stock of 541 bags, according to the table provided in Schedule II-2(i)(c) of Fertilizer Control Order, 1985. The selected bags were 100th

, 200th

, 300th

, 400th

and 500th

. From all the selected bags, he drew samples by inserting clean and dry sampling probe (made of brass) diagonally in the bags and took 300 grams sample on dry and clean polythene sheet from each bag.

Weighing about 1500 grams composite sample was also drawn from the five bags, was mixed with dry and clean wooden rod to make composite sample as homogenous. The so collected composite sample was then spread out on clean hard surface and divided into three equal portions of about 400 grams each, which constitute the test samples. After completing all other requisite formalities, one sealed sample and form J was handed over to Shri Narinder Kumar, at the spot and the other portions of the samples along with forms J and K were deposited in the office of Agricultural Development Officer on 1.6.1998, who retained one sample in store and the third sample was deposited in the Fertilizer Testing Laboratory, Ludhiana on 2.6.1998 with form "K", by Shri Dayal Singh,Beldar, Faridkot against proper receipt.

The expert after analyzing the sample declared it non-standard as 5 CRIMINAL MISC. NO. 21302-M OF 2005

only 11.47% phosphorous contents were found instead of 16%. Copy of the analyst report along with show cause notice were served upon the dealer, distributor and manufacturer. A copy of the report was also sent to the Court concerned for placing the same on the record of the case. Thus, there was violation of Section 19(i)(a)(c)(v) of the Fertilizer Control Order, 1985. It is alleged that Shri Naiter Singh, being Production Manager was also responsible for manufacturing and selling the non-standard fertilizer.

Whereas in all the three other Criminal Misc. petitions, the samples of Single Super Phosphate 16% were drawn by Shri Rachpal Singh, Agricultural Development Officer, on 23.8.1993 from the shop of M/S Rajiana Kheti Store, Baghapurana. After complying with all the requisite formalities he took the samples after making the same homogenous, handed over one sample with form J at the spot, retain one sample in the office and the third sample was sent to the Analyst, who after analyzing the same found the same to be "non- standard". He found the contents of the sample only 14.43% as against 16%.

After the receipt of the report of the Analyst, a copy thereof along with show cause notice was sent to the , Production Manager, responsible for manufacturing the non-standard fertilizer. A copy of the report in Form J was also sent to all concerned partners of the firm.

The learned trial court after hearing the learned counsel for the parties and going through the documents available on the record, vide orders dated 5.3.2003 passed in Criminal Misc. No. 21302-M of 2005 and 25.2.2005 (Annexure P2 in all the remaining petitions), summoned the accused to face trial, which they have challenged by way of filing these four Criminal Misc.

petitions under Section 482 of the Code of Criminal Procedure.

I have heard the learned counsel for the parties and have carefully gone through the material available on the record.

6 CRIMINAL MISC. NO. 21302-M OF 2005

The learned counsel for the petitioner submitted that under the Fertilizer Control Order, 1985, under clause 24 of the Fertilizer Control Order it is necessary for every manufacturing organization and pool handing agency to appoint a responsible officer of the company on their behalf for the compliance of the provisions of the orders. Section 24 of the Fertilizer Control Order is reproduced as under:-

"24. Manufacturers (Importers) Pool handling agencies to appoint officers responsible with compliance of the order:- Every manufacturing organization (Importer) and pool handling agency shall appoint in that organization and in consultation with the central government, an officer, who shall be responsible for compliance with the provisions of this order".

The learned counsel next contended that merely a person who is a Director of the Company cannot be held liable for the affairs of the company unless it is proved that he is directly Incharge of the Company and is also responsible for the conduct of its business. The prosecution launched against all the Directors of the Company is liable to be quashed. Reference was made to State of Haryana Versus Brij Lal Mittal and others (1998) 3 Comp. L.J. 1 (SC).

Learned counsel referred that all the accused petitioners have been summoned in the instant case under Section 319 of the Code of Criminal Procedure. The essential requirements of Section 319 Cr.P.C. have not been complied with in the instant case. Section 319 of the Code of Criminal Procedure is reproduced as under:-

"319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from 7 CRIMINAL MISC. NO. 21302-M OF 2005

the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then-

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced".

Learned counsel then referred to Michael Machado and another Versus Central Bureau of Investigation and another- AIR 2000 Supreme Court 1127, wherein in paragraphs 11 and 12 of the judgment, their Lordships of the Apex Court has observed as under:-

"The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some 8 CRIMINAL MISC. NO. 21302-M OF 2005

other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words " the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons".

After citing the abovesaid legal position with respect to the summoning order, learned counsel for the petitioner referred to the summoning 9 CRIMINAL MISC. NO. 21302-M OF 2005

order passed in Criminal Misc. No. 21302 of 2005 (Annexure P-2).

It is contended by the counsel that Shri M.P.Singh petitioner was an Ex-employee of M/S SFL Industries Limited and had resigned from the services of the company w.e.f. 5.10.2000 and he has been summoned on 5.5.2003 to face the trial on the basis of statement made by Shri Naiter Singh (copy attached as Annexure P-4 with the petition), arrayed as one of the accused in the complaint and was responsible for the manufacturing of the produce of the company, which reads as under:- " It is stated that I am working as Security Supervisor with M/S SFL Limited. I submit in this regard that in the year 1998 Shri M.P.Singh resident of House No.6, Sector 11, Chandigarh was the Managing Director of this Company. I was never responsible for the quality control or for the production".

On behalf of the petitioner, it is contended by the learned counsel that M.P.Singh petitioner was appointed in the Company, vide Annexure P-5, on 15.10.1998, as Operating Officer and he was asked to join the duties of the Company on 1.11.1998. Consequent upon the appointment letter M.P.Singh joined the duties but resigned with effect from 30.9.2000 as is evident from Annexure P-7. He has contributed in the Provident Fund with effect from December, 1998 and continued contributing towards the Provident Fund till May,

1999. Thus according to the learned counsel M.P.Singh was never appointed as Managing Director of the Company nor he was any way responsible for the manufacturing the product of the firm on the date when the sample was ceased by the Fertilizer Inspector on 28.5.1998. No criminal liabilities can be fastened upon the petitioner M.P.Singh because there is no evidence available on the record which suggests that M.P.Singh was in any way responsible for the 10 CRIMINAL MISC. NO. 21302-M OF 2005

production of fertilizer for the Company. The summoning order passed on an application under Section 319 of the Cr.P.C is very much against the essential ingredients of Section 319 Cr.P.C. because there is no evidence on the record .

Therefore, the summoning order qua M.P.Singh dated 5.03.2003 is an abuse of the process of Court and the same is not sustainable. Reference has already been made to Michael Machado and another Versus Central Bureau of Investigation and another- AIR 2000 Supreme Court 1127.

The learned counsel for the respondent-State was unable to controvert the arguments of the learned counsel for the petitioner.

In Criminal Misc. No. 31217-M of 2005 Harbhajan Singh Versus The State of Punjab, the learned counsel for the petitioner contended that Harbhajan Singh petitioner has been wrongly summoned by the court to face trial because he had resigned from the directorship of the company with effect from 28.6.1997. In support of his contention, the learned counsel drew the attention of this court towards document Annexure P-5, from which it is clear that even if the petitioner was on the board of directorship of the company on the date i.e. 23.8.1993, when the alleged sample was drawn and was found to be of non-standard quality, could not be held responsible for the affairs of the Company unless it is shown that he was Incharge of the production of fertilizer in the company. Annexure P-5 is the Photostat copy of form No. 32, which is issued by the Registrar of Companies, Punjab, Himachal and Chandigarh, Jalandhar City bearing the date 5.3.2002. A perusal of Form No.32 attached with this certified copy shows that Shri Harbhajan Singh son of Shri Atma Singh, the petitioner herein ceased to be Director of the Company on resignation, with effect from 28.6.1997. A perusal of the complaint and the statement of PW-1 Rachpal Singh, Inspector, (Annexure P-8) itself show that when the sample was drawn, Rajinder Singh was the Production Manager. The 11 CRIMINAL MISC. NO. 21302-M OF 2005

said Rajinder Singh filed Criminal Misc. No. 12356-M of 1998 in this court and the proceedings against him were quashed by this Court on the grounds that neither the company was arrayed as accused nor there is any averments in the complaint that the said Rajinder Singh was the incharge and responsible to the company for conduct of its business.

Learned counsel for the petitioner contended that Harbhajan Singh petitioner has been wrongly summoned by the Court to face trial. A perusal of the statement of PW-1 Rachhpal Singh, Inspector Fertilizer (Annexure P-8) shows that in the cross examination he stated "that he is not aware of the functioning of the firm". Unless the prosecution leads the evidence to the effect that Harbhajan Singh petitioner was the Director of the Company and was responsible for the manufacturing business of the Company, being Incharge of the Production Unit, he cannot be held responsible for the affairs of the Company merely that he is the Director of the Company, he cannot be held responsible on behalf of the company. In the case of State of Haryana Versus Brij Lal Mittal 's case (supra) it has been observed that every director would not be arranged as an accused unless he is shown to be Incharge of the Manufacturing Unit of the company. Thus, keeping in view the ratio of law laid down in the aforesaid authority, the summoning order is liable to be quashed.

It is pertinent to mention here that one Rajinder Singh was the Production Manager of the Company on the date when sample was drawn i.e.

on 23.08.1993. He had filed Criminal Misc. No. 12356-M of 1998 before the Hon'ble High Court and the proceedings were quashed by this Court on the grounds that neither the Company was arrayed as an accused nor there is any averments in the complaint that said Rajinder Singh was Incharge and responsible for the Company for the conduct of the business of the Company.

Thus, according to the learned counsel there is no evidence on the record that 12 CRIMINAL MISC. NO. 21302-M OF 2005

Harbhajan Singh was the Director of the Company and was managing the affairs of the Company at the relevant time. In the absence of any evidence, the summoning order qua Harbhajan Singh petitioner is not sustainable.

Similarly in Criminal Misc. No. 31215-M of 2005 Deepak Singh Versus The State of Punjab and others, it has been contended on behalf of the petitioner that document Annexure P-5, a copy of which has been issued by the Registrar of Companies, Jalandhar City shows that Deepak Singh has resigned from the Directorship of the Company with effect from 25.12.1990. The said document was sent to the Registrar of the Companies, by Shri S.K.Goel, Company Director vide receipt No. 3066 dated 2.1.1991. Admittedly the sample in this case was drawn on 23.8.1993 when Deepak Singh was not the Director of the Company. Therefore, the summoning order passed by the learned trial court with respect of Deepak Singh petitioner is not sustainable in the eyes of law.

There is force in the contention of the learned counsel for the petitioner.

Now coming to Criminal Misc. No. 43743-M of 2005, Rupinder Kaur Versus The State of Punjab and others, the petitioner has attached a document Annexure P-5, a perusal of which shows that Rupinder Kaur has joined as Additional Director on 22.04.1997 and became the whole time Director on 7.7.1997. It is also proved from the documents available on the record that he replaces her late husband who died on 15.7.1984, as per death certificate issued by the Registrar, Births and Deaths. As per complaint Annexure P-1, the sample was taken by the Inspector on 23.08.1998. Thus, she cannot be held responsible for the criminal affairs of the Company prior to her joining. The summoning order qua Rupinder Kaur is also not sustainable.

At the end , the learned counsel contended that the prosecution has not led any documentary or oral evidence on the record to hold the petitioners in all the four petitions responsible for the affairs of the Company on 13 CRIMINAL MISC. NO. 21302-M OF 2005

the date when the samples were ceased by the Fertilizer Inspector. Therefore, the summoning of the petitioners under Section 319 of the Code of Criminal Procedure, in all the four petitions, is bad in the eyes of law and an abuse of the process of the Court.

On the other hand, learned counsel for the State was unable to controvert the contention of the learned counsel for the petitioner but simply pleaded that the learned trial court has rightly summoned the accused- petitioners and therefore, these petitions need to be dismissed.

After hearing the learned counsel for the parties and going through the documents and the case law cited before me by the learned counsel for the parties, I am of the view that all the four petitions are fit where the inherent powers as envisaged under Section 482 of the Code of Criminal Procedure, can be exercised by this Court.

It is well settled canon of justice that the offenses committed by some one can not be shifted on the others unless it is shown that on the date of seizure of the sample, the petitioners were Incharge of the Production Unit of the Company. In the absence of any evidence, all the four petitions deserve to be allowed. Consequently, the complaint qua the petitioner in all the four petitions (Annexure P-1) and the summoning orders of the petitioner (Annexure P-2) are hereby quashed. A copy of the order be sent to the Court concerned.

(R.S.Madan)

May 31, 2006. Judge

Malik


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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