Prosecution against individuals for corporate offenses is improper without including the company as a party to the proceedings, as established in the Essential Commodities Act, 1955.

ORDER :

(VENKATESH NAIK T., J.)

The petitioners have filed this petition under Section 482 of Cr.P.C ., praying to quash the entire proceedings in C.C. No.1768/2022 pending on the file of the learned Civil Judge and JMFC, Kushtagi, for the offence punishable under Section 7 of the Essential Commodities Act, 1955 (for short 'E.C. Act').

2. It is the case of the prosecution that the complainant, who is respondent herein, was working as Assistant Agricultural Officer in the Department of Agriculture, Shahapur, he filed a private complaint before the jurisdictional Court on behalf of State on 20.09.2022 for the aforesaid offences alleging that he visited the shop of petitioner No.1 and he was not having the original letter “O” and he was in storage of phosphate rich organic manure (DOP) 18.46.0 organic fertilizer for sale which was found in 70 bags and each bag carrying 50 kg and thus, he collected samples from the said bags for the purpose of sample in prescribed manner under the act and at the same time, he conducted the panchanama at the spot. Further it is alleged by respondent No.2 in his complaint that as per the FERTILIZER CONTROL ORDER 1985 clause 28(1) out of 3 samples, first sample was sent to the Assistant Director of Agriculture Organic fertilizer quality control Laboratory Kothnur D (Kalaburagi) and second sample was given to accused No.1 and third sample was kept by the complaint himself only. The same was sent for analyses report. The analyses report was issued by the Assistant Agricultural Director Organic quality control Laboratory Kotonur (Kalaburgi) dated 21.06.2022 that the alleged Organic fertilizer is not in according to control order 1985 rules and also same is contented less Phosphorus (p205- 1.34) nitrogen, hence said organic fertilizer is substandard one. Accordingly, he proceeded to prosecute the petitioners under the provisions of Clauses 8(2), 19(a), 2(T) and 8(2) of the Fertilizers Control Order, 1985 and Section 7 of the E.C. Act.

3. Heard learned counsel for the petitioners and the learned High Court Government Pleader for the respondent – State.

4. It is contended that, the Company should be made as accused along with other accused. Failing to array the Company as accused is said to be illegal and as such initiation of prosecution against present petitioners do not survive for consideration and liable to be quashed.

5. Per contra, learned High Court Government Pleader for respondent-State vehemently submitted that the complainant has not made the Company as accused in the proceedings, but there is scope under Section 319 of Cr.P.C ., to implead the Company as accused before the Trial Court, therefore, not impleading the Company as accused in the proceeding is not fatal to the case of prosecution and this irregularities can be cured the time of taking cognizance. Thus, prayed to dismiss the petition.

6. Having heard the learned counsel for the parties to the lis and on perusal of the material available on record, it appears that the complainant collected sample fertilizer from the shop of petitioner No.1 in three samples and sent the same to the Assistant Director of Agriculture Organic fertilizer quality control Laboratory Kothnur D (Kalaburagi) and second sample was given to accused No.1 and third sample was kept by the complaint himself only and later he came to know from the report that the said fertilizer was not of specifications.

7. Admittedly, the complainant has not made the Company as party to the proceedings. Here it is necessary to refer Section 10 of the Essential Commodities Ac