This Criminal Original Petition is filed to quash the private complaint in C.C. No.189 of 2006 on the file of Judicial Magistrate No.II, Udumalpet, wherein the petitioners are prescribed for the alleged offence under Sections 7(1) (a) (ii) of Essential Commodities Act 1955 read with Sections 19(a) of the Fertilizers Control Order 1985 and 2(q), 2(h) and 19(a) of the Fertilizers Control Order 1985.
2.The allegations in the complaint is that on 03.08.2005 at 11.30 a.m. the respondent on the routine inspection went to the shop of A-6 M/s.Sakthi Agro Service, Udumalpet, which is owned by the A.T.S.Nadhakumar. At the time of his inspection, A.S.P.Sivakumar the salesman was present and the respondent took three samples from the bag containing Super Paspate alleged to have been supplied by A-1, the first petitioner herein. On analysis by the Agricultural Analyst on 05.09.2005, the fertilizer was found to be not of prescribed standard since it was less than 0.91% (the prescribed standard is 16%) and thereafter, on 09.09.2005 again the shop of A-6 was inspected and found all the fertilizers supplied by A-1 were sold. A statutory notice had been issued on 16.09.2005 to the accused calling for an explanation and the first petitioner sent his explanation on 30.09.2005 refuting the allegation. According to him, he did not sell the alleged fertilizer to A-6 M/s.Sakthi Agro Service. Since the explanation was found to be not satisfactory, the respondent after obtaining necessary sanction filed the complaint before the Learned Judicial Magistrate No.II, Udumalpet.
3.Mr.V.Elangovan, learned counsel for the petitioner submits that there is no material to show that the fertilizer, from which, the samples were taken was manufactured and supplied by the petitioners. He would submit that in the explanation to the show cause notice, the petitioners have specifically denied the said fact and despite the said explanation, the authorities without giving an opportunity to the petitioners has filed the complaint which is contrary to the principles of natural justice. He would further contend that the fertilizer which is said to have lifted from the shop of A-6 cannot be said to be of substandard, and at the most it could be only of non-standard as the variance was only negligible that is 0.91%.
4.On a perusal of the complaint, it is seen that the Analyst report dated 05.09.2005 given by the Fertilizer Quality Control Lab has stated that the fertilizer is of substandard quality as it contained only 15.09% as against 16% and the permissible tolerance limit is only 0.1%. The variance in the fertilizer sold by A-6 is 0.91% which according to the respondent/complainant is of non-standard one.
5.Section 19 of the Fertilizer Control Order 1985 specifically prohibits the sale of non-standard fertilizer. On the information furnished that the petitioners have sold the fertilizers to A-6 shop, they have been prosecuted for selling the fertilizer which is of substandard. It is for the petitioners to prove that the declared sample of the fertilizer was not sold by them to A-6 shop. On a bare perusal of the complaint, it is seen that the sample of fertilizer was lifted by the authorities in accordance with the provisions of Fertilizer Control Order 1985 and prosecution has been initiated according to law. The evidence is yet to be adduced by the complainant and the petitioners would be given a right of defence and now it is premature to judge the ultimate decision which the Court may take. The question whether the petitioners have sold the fertilizers to A-6 shop requires examination of evidence in the trial and the same cannot be decided at this stage.
6.The scope of interference by this Court at threshold by exercising power under
Section 482 of the Code of Criminal Procedure has been succinctly stated by the Hon'ble Supreme Court reported in STATE OF HARYANA vs.
BAJANLAL AND OTHERS AIR 1992 SC 604 it is held as follows:
"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under
Article 226 or the inherent powers under
section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the code except under an order of a Magistrate within the purview of
Section 155(2) of the Code.
3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under
section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7.The present case does not belong to any of the aforesaid categories. That apart, the petitioners had filed discharge petition before the learned Magistrate on the same grounds and the said petition has been dismissed by the learned Magistrate after considering all the contentions raised by the petitioners.
8.In view of the reasons stated above, I am of the considered view that there is no scope to interfere with the criminal prosecution initiated against the petitioners and accordingly, the criminal Original Petition is dismissed. Consequently, connected miscellaneous petition is dismissed.
ms/sri