Vicarious liability under the Essential Commodities Act necessitates the arraignment of the manufacturer as an accused; absence of such leads to quashing of proceedings against retailers or sales executives.

JUDGMENT

1. The petitioners are sought to be prosecuted for the offence punishable under Ss. 19(a)(b) of Fertilizer (Inorganic, Organic, or Mixed)(Control) Order, 1985 (for short 'Control Order, 1985') and Ss. 3 and 7 of the Essential Commodities Act.

2. The respondent filed a private complaint under Sec. 200 of Cr.PC alleging that, a sample of fertilizer collected from the premises of accused No.1, who is the retailer, was sent to the Test Analyst as specified under Schedule-I of the Control Order, 1985. The Test Analyst, after examination, sent a report stating that, the sample of fertilizer collected from the premises of accused No.1 is of substandard. The accused No.2 is the Sales Executive of the manufacturer. The learned Magistrate, after perusing the complaint, took the cognizance of the aforesaid offences and issued summons. Hence, these petitions.

3. The learned counsel for the petitioners submits that the manufacture of the subject fertilizer having not been arraigned as an accused, the petitioner cannot be held vicarious guilty along with the manufacturer as specified under Sec. 10 of the Essential Commodities Act.

4. The learned High Court Government Pleader for the respondent submits that the complaint discloses the commission of the aforesaid offences and the learned Magistrate has rightly taken the cognizance and the same does not warrant any interference.

5. Considered the submissions of the learned counsel for the parties.

6. Sec. 2 of the Control Order, 1985 specifies that the Act means the Essential Commodities Act, 1955 and the provisions of the Act are made applicable, and the fertilizer is declared as an essential commodity in the Schedule-I to the Control Order, 1985.

7. Sec. 10 of the Essential Commodities Act, 1955 deals with offences by companies, and specifies that, if any person contravening an order made under Sec. 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention. In the instant case, the company which has manufactured the subject fertilizer has not been arraigned as an accused. Hence, the company having not been arraigned as an accused, the petitioner - accused No.1 who is the retailer and the accused No.2 who is the Sales Executive of the manufacturer cannot be held vicarious guilty along with the company as specified under Sec. 10 of the Essential Commodities Act. Therefore, the continuation of the criminal proceeding will be an abuse of process of law. Accordingly, I pass the following:

ORDER

i) Writ petitions are allowed.

ii) The impugned proceeding in CC No.1110/2022 pending on the file of the learned Additional Civil Judge and JMFC Arakalagudu, Hassan, insofar as it relates to the petitioner in both the petitions, is hereby quashed.