Point of Law: the absence of any material to show that petitioner is responsible for the quality of fertilizers seized, the proceedings now initiated against the petitioner is nothing but an abuse of process of law.

ORDER :

The proceedings initiated against the petitioner in C.C.No.448/2021 (P.C.No.73/2021) on the file of Principal Civil Judge and JMFC, Shahapur, under Section 19(1) of Fertilizer Control Order, 1985 and Sections 3 and 7 of Essential Commodities Act, 1955 has been called in question in this petition.

2. The Assistant Agriculture Officer cum Fertilizer Inspector, Department of Agriculture, Shahapur filed a complaint before the Court of JMFC, Shahapur against accused No.1 namely, Senior Manager and Quality Control Officer, Greenstar Fertilizer Limited and accused No.2 namely, the petitioner, proprietor of Shri Veerabhadreshwara Agro Agency, Shahapur.

3. The gist of the complaint is that, complainant visited the shop of accused No.2 on 15.06.2020 and collected three samples of the fertilizer Diammonium Phosphate (DAP) which he was selling to the farmers, after following due procedure. Among the three samples, one sample was handed over to the owner of the fertilizer shop, second portion was sent to higher authority for keeping in safe custody and third sample marked as laboratory sample was sent to the Deputy Director of Agriculture, Fertilizer Control Laboratory, Belgaum. As per the laboratory report dated 30.06.2020, the said fertilizer was not according to the specification, as it has failed in total available phosphorus as (P2O5) percent by weight 4.67 (composition as per analysis is 41.33 as against min 46) and Water soluble phosphorus as (P2O5) percent by weight is 2.67 (composition as per analysis is 36.83 as against min 39.50). Further, show cause notice was issued to both accused Nos.1 and 2 along with the laboratory analysis report and based on the request letter of accused, guard sample was also sent for analysis and as per the report, even the said sample was not according to the specification. Hence, accused Nos.1 and 2 have committed offence under Clause 19(1) of the Fertilizer (Control) Order, 1985 R/w Sections 3 and 7 of the Essential Commodities Act, 1955 for having sold the substandard fertilizer in question.

4. The primary contention of the learned counsel for petitioner is that, the complaint filed without charging the company with any liability is not maintainable and therefore, the initiation of proceedings against the petitioner is nothing but an abuse of process of law. It is contended that petitioner is only a distributor and therefore, if there is any deficit in the quality of fertilizer, petitioner cannot be held responsible.

5. In support of the above contention, learned counsel for petitioner has relied on the following decisions of the Co-ordinate Bench of this Court:

1. R.V. Kusumbekar vs. The Government of Karnataka, Criminal Petition No.200785/2014 disposed of on 12.09.2014;

2. Sri Sadashiva vs. Government of Karnataka, Criminal Petition No.200309/2016 disposed of on 18.04.2016;

3. Mr. Sanjay Gowda vs. State of Karnataka, Criminal Petition No.2134/2017 disposed of on 07.06.2017.

6. Learned High Court Government Pleader has contended that complainant is the competent person to file a complaint and after following the due procedure contemplated under law, complaint was filed. He submits that samples were sent to the laboratory and as per the laboratory report, the fertilizer in question was of substandard quality. It is his contention that petitioner being the proprietor of the shop from where the fertilizer was seized is squarely responsible for the quality of fertilizer and therefore, he has been rightly arraigned as an accused. He submits that there is no illegality in issuing summons to the petitioner and accordingly, seeks to reject the petition.

7. Para 7 of the order passed in R.V. Kusumbekar vs. The Government of Karnataka

(Supra) is extracted hereunder:

"7. The learned counsel for petitioner has relied upon the order passed by this court in Crl.P 979/2004 dated 04.03.2008. In the aforestated order, this court has held:

"In the case on hand, it is not stated, petitioner herein was incharge and was

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