M/s. Zuari Industries Ltd. & Anr. vs The State Of Maharashtra

The applicants, who are accused Nos. 3 and 4 in Regular Criminal Case No. 250 of 2006 pending before the Judicial Magistrate First Class, Kannad, seek quashing of the complaint and the proceedings against them. The complaint alleges contravention of clauses 13 and 19 of the Fertiliser (Control) Order, 1985 punishable under section 7 of the Essential Commodities Act, 1955.

The Prosecution case as narrated in the Private Complaint states that , On 5^th July, 2005, the Fertiliser Inspector inspected the premises of M/s. Ganesh Krushi Seva Kendra at Kannad and drew a sample from its stock of Single Super Phosphate powder, batch P-22. The bags identified M/s. Liberty Phosphate Ltd. as the manufacturer. The report of the Fertiliser Testing Laboratory dated 22^nd July, 2005 declared the sample to be below the prescribed standard. The complaint names the dealer and its proprietor as accused Nos.1 and 2, the present applicants as accused Nos. 3 and 4, and Liberty Phosphate Ltd. as accused No. 5. It alleges, in particular, that applicant No.1 supplied the fertilizer to the dealer through the marketing arrangement.

Learned counsel for the applicants submitted that Liberty Phosphate Ltd. manufactured the product and that the applicants merely marketed it. He pointed to the manufacturer’s name and batch number recorded during inspection and submitted that no tampering with the bags was recorded. He contended that a defect in manufacture cannot be attributed to a marketer or its officer. Reliance was placed on the decision of the High Court of Punjab and Haryana at Chandigarh in the case of M/s. Tata Chemicals Ltd. v. State of Haryana and Anr. in CRM-M-42904 of 2013, decided on 24^th February, 2014 and the case of M/s. Tata Chemicals Ltd. v. State of Punjab in CRM-M-14123 of 2016 (O & M), decided on 19^th April, 2024.

Learned Additional Public Prosecutor opposed the application. The State’s affidavit accepts that the applicants did not manufacture the fertilizer but maintains that applicant No.1 promoted and distributed it and is answerable for its sale. According to the State, clause 19(a) of the above referred Control Order extends to those activities.

The submission of the Learned counsel for the Applicants that only a manufacturer can contravene clause 19(a) of the Control Order cannot be accepted. Besides manufacture, that clause expressly covers selling, offering for sale, stocking or exhibiting for sale, and distributing fertilizer which is not of the prescribed standard. The absence of a separate definition of “marketer”also does not exempt a person whose alleged conduct falls within one of those express terms. Nor does clause 13 of the Control Order, which concerns manufacture of mixtures can determine the distinct allegation made under clause 19(a) of the Control Order.

The decisions cited by the applicants have also been considered by me. The judgments do not lay down a legal situation that warrants quashing of a complaint which expressly alleges sale or distribution by the company without examining the evidence. The invoice and other documents relied upon by the applicants, and the significance of the condition in which the bags were found, may be tested at trial. At this stage the Court cannot resolve the disputed supply arrangement or assess the likelihood of conviction. The analytical report also cannot be treated as a finding of guilt against any accused merely because it records a non-standard sample. The governing question is whether the complaint, taken at face value, discloses the alleged contravention against each applicant. In my view against the applicant No.1, it does.

As far as Applicant No.2 is concern, he stands on a different footing. The complaint identifies him by name as an officer associated with Zuari but does not state what part he took in the alleged sale or distribution. It does not aver that, when the alleged contravention occurred, he oversaw and was responsible to the company for the conduct of its business. Nor does it attribute to him consent, connivance or neglect in relation to the alleged contravention. His designation or association with the company cannot, by itself, supply those missing allegations for the purpose of section 10 of the Essential Commodities Act. Continuation of the proceedings against him on the complaint as framed would therefore be an abuse of process of law and in my opinion deserves to be quashed and set aside against the Applicant no.2.

Lastly, considering that the complaint concerns a sample drawn in 2005 and has remained pending for approximately twenty years. The record also shows that further proceedings before the Magistrate were stayed during the pendency of this application. The passage of time thus calls for an early trial of the remaining accused. Hence, the following order :