2011 ALL MR (Cri) 1752
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.H. JOSHI, J.

Smt. Sarjubai Wd/O. Mishrilal Rathore & Ors.Vs.State Of Maharashtra & Ors.

Criminal Application No.3176 of 2009

11th January, 2011

Petitioner Counsel: Shri. J. M. GANDHI
Respondent Counsel: Shri. T. A. MIRZA

Essential Commodities Act (1955), Ss.3, 7 - Fertilizer (Movement Control) Order (1973), Cl.3 - Fertiliser (Control) Order (1985), Cls.7, 19(a), (b) - Penal Code (1860), S.420 r/w. S.34 - Criminal P.C. (1973), Ss.482, 154 - Quashing of prosecution - Case registered under Essential Commodities Act, I.P.C. and Fertilizers Movement Control Order - Applicants are vendors dealing in sale of seeds, fertilizers, insecticides and other agriculture related implements - F.I.R. registered against manufacturer of fertilizers, quashed - Therefore, held, the applicants cannot be forced to face the trial and F.I.R. as well as the charge-sheet are liable to be quashed and set aside. (Paras 2, 12, 13)

JUDGMENT

A. H. JOSHI, J:- This is an application under Section 482 of Criminal Procedure Code.

2. The applicants are Vendors dealing in sale of seeds, fertilizers, insecticides and other agriculture related implements. They claim that the Crime No.3080 of 2009, registered under Sections 3 & 7 of Essential Commodities Act, under Clause 3 of Fertilizers Movement Control Order, 1973 and under clauses 5, 7, 19(a) & (b) of Fertilizers Control Order, 1985 and under Section 420 read with Section 34 of the Indian Penal Code by Police Station Arni, District Yavatmal on the complaint lodged by the respondent no.3, be quashed and set aside.

3. The ground, on which the complaint is sought to be quashed, is that the sale of fertilizers, subject-matter, was effected at Khandwa, and not in Maharashtra, and the applicants are not responsible for transportation and further sale, if any, for those fertilizers which are controlled commodity in State of Maharashtra. It is next urged that the FIR or charge-sheet does not attribute sale of fertilizers by the petitioners in Maharashtra.

4. Heard Learned Advocate Mr. J. M. Gandhi for the applicants and the learned APP Shri. T. A. Mirza for respondent nos.1 & 2.

5. Perused the First Information Report, affidavit-in-reply, charge-sheet in Regular Criminal Case No.100 of 2010 which is the culmination of the First Information Report subject-matter and the judgment delivered by this Court in Criminal Application No.2642 of 2009.

6. This Court has scanned through and scrutinized the First Information Report with reference to each sentence and each statement contained therein. This Court has also perused the narration contained in the final report.

7. The grievance of the respondent no.3 as represented concurrently through both the documents namely First Information Report as well as the Final Report is summarized as follows :-

"The other accused (not amongst the present applicants) were seen in possession of the fertilizers of the description narrated therein which were possessed by them, procured, transported and stored without valid permission etc., and those were misappropriated when entrusted in their possession on Supratnama. The fertilizers subject-matter were spurious as well and were procured by them from the present petitioners."

8. Learned Advocate for the applicants has pointed out which could not be refuted by the learned APP namely that the complaint as well as final report do not contain a factual statement that :

The fertilizers subject-matter were sold within the territory of State of Maharashtra by the applicants herein.

9. The sale of fertilizers "by the petitioners" within the "territory of State of Maharashtra" is a condition precedent for constituting the act of said sale & transportation as offence under relevant Sections of Essential Commodities Act and Orders referred to pass therein indicated in the First Information Report.

10. The learned APP has placed reliance on the statements of the witnesses namely Mukund Nathuji Patil, Pandurang Dattaji Dhole and Datta Shamrao Deokar. It is seen that these statements are recorded on 8-7-2009, 16-7-2009 and 12-7-2009 i.e. almost 2 to 3 weeks after the date of registration of offence, and even upon accepting every word and line contained in those statements, those do not reveal that the sale was effected in Maharashtra by the applicants herein.

11. As the facts are emerging, the essential ingredient of the sale being effected by the "applicants" "in the territory of State of Maharashtra" not being narrated and made out, be it that the persons who possessed the fertilizers may stand liable for trial if purchase, transportation possession etc. is contrary to law. However, the present applicants who are vendors and prosecution does not say that they have sold the controlled commodity within the State of Maharashtra can be vexed with the trial. Moreover, the investigation is complete and even after investigation, the sale by the applicants in State of Maharashtra is not alleged.

12. This Court has also noted that in Criminal Application No.2642 of 2009 filed by manufacturer, the First Information Report has been quashed in so far as it relates to the manufacturer of the fertilizers.

13. This situation leads to the conclusion that the applicants herein cannot be forced to face the trial and the First Information Report as well as the charge-sheet is liable to be quashed and set aside in so far as the applicants herein are concerned.

14. In the result, criminal application succeeds.

15. Rule is made absolute in terms of prayer clause (1) (as amended today) to the extent of the applicants.

Application allowed.