Criminal Application No.987 of 1996

12th October, 2006

Petitioner Counsel: Mrs. NETRALI AGRAWAL,Mr. A. H. KASLIWAL
Respondent Counsel: Mr. P. M. SHINDE

Cases Cited:
Korra Srinivas Rao S/o. Krishnamurthy Vs. State of Maharashtra, 2002(4) Mh.L.J.368 [Para 13]

JUDGMENT

JUDGMENT :- Heard.

2. By this application, the applicant seeks to quash and set aside the proceedings in Regular Criminal Case No.711/1991 on the file of C.J.M. Nanded for the offence punishable U/s.420, I.P.C.

3. The fats leading to the said case and the present application may be stated in brief thus :

The applicant used to run a seeds shop in the name and style of Amol Fertilizers as dealer of Mahyco Seeds at Varirabad, Nanded. One Balaji Vithalrao Devne, resident of Udgir, who is a farmer went to the shop on 25-9-1991 for purchase of Sunflower seeds bag of Mahyco Company. He purchased one bag consisting of 3 Kg. seeds of Sunflower. Maximum retail price of that seeds bag was Rs.432/-. However, the applicant charged Rs.750/- from him for the said bag and also refused to issue any bill/memo or receipt for the same. As the applicant did not issue bill or receipt on sale of the bag of seeds, said Balaji became suspicious that the seeds could be bogus. Therefore, he immediately approached Police Station Vazirabad, Nanded and lodged the report. After receiving that report, P.S.I. Shivaji Patil of Vazirabad Police Station called two panch witnesses and informed them about the complaint of Balaji. It was decided to treat Balaji as a punter and to send him to the shop of the applicant for purchase of Sunflower seeds again. Currency notes of Rs.750/- were handed over to him. Numbers of those currency notes were noted down. The punter, Panch witness and the Police party went to that side again. As per directions Balaji went to the shop to purchase 3 Kg. bag of Hybrid Seeds of Sunflower. The applicant sold him a bag of 3 Kg. Sunflower seeds with certain mark of Mahyco Company, description of the seeds and maximum retail price Rs.412=50 Ps. However, he received Rs.750/- and did not issue any receipt or bill for the same. As per instructions, punter Balaji gave signal and immediately Police and Panchas went to the shop and seized the above referred currency notes of Rs.750/- from the applicant. Printed receipt book revealed that the applicant was dealer of Mahyco Seeds Co. but the bag of the seeds was not properly labelled and sealed. In view of this P.S.I. Shivaji himself lodged F.I.R. and registered Crime No.356/91 U/s.420 of I.P.C. He recorded statements of some witnesses including the punter. He also collected information from the office of Maharashtra Hybrid Seeds Co.Ltd., Jalna (Mahyco) which revealed that the bag of the seeds with batch number was not the product of Mahyco.

4. After completing investigation the Police filed charge-sheet in the Court of C.J.M. on 9-12-1991. On 10-3-1992 vide Exh.9 Charge was framed against accused for the offence punishable U/s.420 I.P.C. with specific allegation that he had dishonestly induced Balaji to pay Rs.750/- as the price of Sunflower seeds while in fact, the price was Rs.432/- and further that he had sold him one unsealed bag of Sunflower seeds which was not of any Company and thereby he had committed offence. Thus, in the charge framed by the learned C.J.M. there are two parts. First is about charging excess price and second is about sale of unsealed bag of Sunflower which were not product of any Company. Evidence of P.W.1 was recorded on 18-2-1993 and evidence of P.W.2 and 3 was recorded on 15-4-1993. Statement of accused was also recorded U/s.313 Cr.P.C. on 16-9-1993. It appears that thereafter, the A.P.P. conducting the case made an application to issue summons to witness N. B. Bhartia, Assistant Administrative Officer of Maharashtra Hybrid Seeds Co.Ltd. to prove that the said bag of seeds was not a product of Mahyco. It appears that thereafter for long time either the accused was not present or the witness did not turn up.

5. On 5-6-1996, the application filed present application U/s.482, Cr.P.C. to quash the proceedings, mainly on the ground that under clause 13 of the Seeds (Control) Order, 1983 only Seed Inspector can enter and search any premises of the shop to see that the provisions of the Seeds Act are complied with. Under Clause 13(c) he can also send samples of seeds for analysis tot he laboratory to confirm whether the seeds conforms to the standard of quality prescribed. It is contended that all the powers of investigation under the Seeds (Control) Order, 1983 are vested in the Seed Inspector. As the Seeds (Control) Order, 1983 is enacted U/s.3 of the Essential Commodities Act and it is a special legislation, the prosecution could be only under the Seeds (Control) Order and not U/s.420, I.P.C. In any case, the offence was not cognizable and the Police officer could not register the offence, investigate it and file charge-sheet.

6. The learned counsel for the applicant vehemently contended that all the powers of inspection, investigation etc. under the Seeds (Control) Order as well as under Seeds Act and Seeds Rules are vested in a Seed Inspector appointed under the provisions of Section 13 of the Seeds Act. She also contended that Section 19 is a penal provision for contravention of any provision of the Seeds Act or Rules made thereunder and such contravention is punishable in case of first offence with fine which may extend to Rs.500/- and for subsequent offence with imprisonment which may extend to six months or with fine which may extend to Rs.1,000/- or with both. As the sentence provided for the offence is less than 3 years or with fine only, in view of Part II of Schedule I of Cr.P.C., the offence is non-cognizable and in view of the provisions of Section 155, Cr.P.C. no Police officer shall investigate a non-cognizable case without the order of Magistrate having power to try case or to commit the case for trial. She contended that as the offence is pertaining contravention of the Seeds Act and the Seeds (Control) Order and as the said contravention is a non-cognizable offence, the Seed Inspector could file a complaint before the Magistrate. She contended that under the Seeds Act, Seeds Rules and Seeds (Control) Order, complete power of investigation is with Seed Inspector and therefore, Police officer cannot investigate the offence.

7. On the other hand, Mr. Shinde, learned A.P.P. vehemently contended that present case is basically for overcharging price of the seeds. According to him as per the report lodged by Balaji and as per the charge framed by C.J.M. it is clear that the allegation against accused is that he had charged Rs.750/- for a bag of 3 kg. Sunflower seeds while its price was Rs.432/- or Rs.412-50. He had induced Balaji to pay more than what was prescribed price and thus he had cheated him and the offence U/s.420, I.P.C. is committed. This offence is independent of the contravention of the provisions of the Seeds Act or the Seeds (Control) Order and therefore, the Police officer had power to register the offence and to investigate the same.

8. To appreciate the arguments of the learned counsel for both the sides it will be necessary to make a reference to the relevant provisions of the Seeds Act and Seeds (Control) Order. Preamble of the Seeds Act clearly provides that it is an Act to provide for regulating the quality of certain seeds for sale and for matters connected therewith. Section 3 provides for constitution of Central Seed Committee to advise the Central Government and the State Governments on the matters arising out of the administration of this Act and to carry out other functions assigned to it by or under this Act. Section 4 provides for establishment of Central Seed Laboratory and State Seed Laboratory. Section 5 provides that if the Central Government, after consultation with the Committee, is of the opinion that it is necessary or expedient to regulate the quality of seed of any kind or variety to be sold for purposes of agriculture, it may, by notification in the Official Gazette, declare such kind or variety to be a notified kind or variety for the purposes of this Act and different kinds or varieties may be notified for different States or for different areas thereof. U/s.6 Central Government may specify minimum limits of germination and purity with respect to any seed of any notified kind or variety and the mark or label etc. to indicate that such seed conforms to the minimum limits of germination and purity. Section 7 and 8 provide for regulation or sale of seeds of notified kinds or varieties and for establishment of Certification agency. Under Section 9 Certification agency may grant certificate about the quality and standard of the seed. Section 10 provides for Revocation of certificate and Section 11 provides for appeal against such revocation. Section 13 provides for appointment of Seed Inspectors and Section 14 provides for powers of the Seed Inspectors about taking of samples, to enter and search premises etc. For taking samples and sending the sample to Seed Analyst he has to follow the procedure laid down in Section 15. Section 16 provides for Report of the Seed Analyst. Section 19 provides for the penalties for contravention of any provisions of this Act or any rule made thereunder as well as provides for punishment for preventing Seed Inspector from taking sample or from exercising the powers conferred upon him under the said Act.

9. The Seeds Rules 1968 are made by the Central Government by virtue of powers conferred U/s.25 of the Seeds Act. The Seeds Rules actually provide for the procedure to be followed by the Central Seed Committee, laboratories, Seed certification agencies and the procedure about marking and labelling of the seeds and their enclosures, certification of seeds etc.

10. The Seeds (Control) Order, 1983 was issued by the Central Government in exercise of powers U/s.3 of the Essential Commodities Act. Clause (3) of the Seeds (Control) Order makes it mandatory for the dealers of seed to obtain a licence in prescribed form as per clause (4). Clause (5) provide that the licensing authority may issue license after making enquiry as it may thinks fit, or it may also refuse to issue license. Under clause (6) validity of licence shall be three years. Clause (7) provides for refusal of licence. Clause (8) provides that every dealer of the seeds shall display in his place of business (a) the opening and closing stocks, on daily basis of different seeds held by him and (b) a list indicating prices of rates of different seeds. Clause (9) provide that every dealer shall give a cash or credit memorandum to a purchaser of seeds. Clause (12) provides for appointment of Inspectors and Clause (13) provides for powers of the Inspectors with a view to secure compliance of this Control order. Clause (15) provides that the licensing authority may after giving the holder of the licence an opportunity of being heard, suspend or cancel the licence on the grounds (a) that the licence has been obtained by misrepresentation as to the material particular; or (b) that any of the conditions of the licence has been contravened. It is material to note that the Seeds (Control) Order does not declare any act as a punishable offence nor provides for any punishment. For contravention of any of the conditions or the provisions of the licence or the Control Order, the licensing authority may only suspend or cancel the licence. It means if the dealer does not display a list indicating price or rates of different seeds as required under clause (8) or does not give a cash or credit memorandum to the purchaser of the seeds as required under clause (9), after necessary enquiry his licence may be either suspended or cancelled but there is no provision for prosecution or punishment in the Seeds (Control) Order.

11. The scheme and the different provisions of the Seeds Act are quoted above. Under Section 19 of the Seeds Act, punishment is provided only for contravention of any of the provisions of the Seeds Act or any Rules made thereunder. If the Seeds Act and the Rules made thereunder are carefully looked into, it will be clear that they pertain only to maintenance of the minimum standard or quality of the seeds and has nothing to do with the price of the same. It is true that as far as maintenance of quality of the seeds, marking of the seeds bags or sale of unauthorised seeds etc., the matter will be covered under the Seeds Act or under the Seeds (Control) Order. However, neither the Seeds Act nor the Rules framed thereunder deal with the price of the seeds or with charging excess price of the same. Neither the learned counsel for the applicant nor learned A.P.P. have brought to my notice any notification or order issued under the Seeds (Control) Order about fixation of price of the seeds. If any price is fixed under the Seeds (Control) Order which itself is issued U/s.3 of the Essential Commodities Act, the contravention of such notification would be an offence punishable U/s.7 of the Essential Commodities Act and the offence would be congnizable U/s.11 of the Essential Commodities Act. In absence of any such provision, it must be held that the Seed Inspector has nothing to do with charging of prescribed price or excess price of the seed. If the maximum retail price is fixed and the dealer induces a customer to pay more than maximum retail price, it may amount to cheating the customer and the offence may be covered U/s.420, I.P.C.

12. It may be noted that in the present case, the alleged offence may be divided in three parts. One is pertaining the allegation that the applicant had charged Rs.750/- for a bag of 3 kg. Sunflower seeds while its maximum retail price was Rs.412-50 or Rs.432/- and thereby he had fraudulently or dishonestly induced the customer, so deceived to pay him more than the prescribed price and thus he committed the offence of cheating punishable U/s.420, I.P.C. Second part is about non-issuance of the receipt or cash memorandum tot he purchaser of seeds as required under clause (9) of Seeds (Control) Order. Violation of that provision would be an offence punishable U/s.7 of the Essential Commodities Act but for that purpose under clause (12) an Inspector is appointed and powers of such Inspector are prescribed under clause (13) of the Seeds (Control) Order. It means such Inspector only could lodge a report or complaint and on his complaint or report the cognizance of the offence could be taken. Third part of the matter is pertaining the sale of uncertified seeds with false marks or labels or without labels or marks. For such contravention of provisions of Section 7 of Seeds Act, the procedure could be followed in the Seeds Act and the culprit could be punished U/s.19 but for that purpose again the Seed Inspector can take an action. In view of this, it is clear that the Police officer had no power either to take action under the Seeds Act or under the Seeds (Control) Order. The action could be taken on the basis of report or complaint of Seed Inspector or the Inspector appointed under the Seeds Act or Seeds (Control) Order respectively. I have already pointed out that no notification or order issued by the Central or the State Government under the Seeds (Control) Order prescribing the price of Sunflower seeds has been brought to my notice by the counsel for the applicant or the State. Therefore, it may be held that as far as offence of cheating by charging excess price is concerned, it is an offence U/s.420 I.P.C. which is congnizable and the Police Officer could take cognizance of the same. To that extent the F.I.R. and proceedings followed thereon have to be sustained. The learned C.J.M. framed the charge which, was pointed out earlier consist of two parts, first part is pertaining charging of price in excess of the maximum retail price and second is about sale of unsealed bag of Sunflower seeds which are not of any Company. The second part is clearly covered under the Seeds Act while first part is covered U/s.420 I.P.C. In my opinion, the second part may be quashed and set aside as the Police officer had no power to take cognizance and to register the offence and to investigate the same.

13. The learned counsel for the applicant vehemently relied upon Korra Srinivas Rao S/o. Krishnamurthy and another Vs. State of Maharashtra and others, 2002(4) Maharashtra Law Journal 368, wherein it was held that the Seed Inspector can launch proceedings in respect of complaints of farmers regarding failure of crop due to defective quality of seeds after detail investigation by himself and the Police authorities cannot investigate such cases, in view of Rule 23-A(2) of the Seeds Rules, 1968. There can be no dispute about this legal position. I have already pointed out that the Seeds Act and the Rules framed thereunder are mainly for the purpose of maintenance of the quality of the seeds. The matter in Korra Srinivas Rao (supra) was about the complaints of farmers regarding failure of crop due to defective quality of seeds and therefore, it was held that only the Seed Inspector under the Act can investigate the offence. In the present case, there is no such complaint and therefore, this authority is not applicable to the facts of the present case.

14. In view of the facts and legal position stated above, it must be held that the proceedings in Regular Criminal Case No.711/1991 pending before C.J.M. Nanded only to the extent of the allegation that the accused/applicant had sold one sealed bag of Sunflower seeds not of any Company, is liable to be quashed. However, there is no legal flaw as far as the prosecution of the applicant U/s.420 of I.P.C. for cheating Balaji by dishonestly inducing him to pay excess price. Therefore, to that extent the trial may proceed.

15. In view of the above, the application is partly allowed and the proceedings to the extent of Charge about sale of unsealed bag of Sunflower seeds, not of any Company, is hereby quashed but the trial U/s.420 of I.P.C. for cheating Balaji by charging excess price shall continue. As the matter is now more than 15 years old, the learned C.J.M. shall try to dispose of the same as early as possible.

16. Rule made absolute partly.

Application partly allowed.