An individual responsible for the manufacturing unit cannot be prosecuted individually without arraying the company as an accused under the Essential Commodities Act, 1955, and the Fertilizer (Control) Order, 1985.

R.L.Anand, J.

1. S.H. Chisty, styling himself as Deputy General Manager (Works) of M/s Khaitan Fertilizers, resident of Rampur (UP) has filed the present petition under Section 482 Cr.P.C. against the State of Haryana praying for the quashment of complaint under Section 7 of the Essential Commodities Act, 1955 read with the provisions of Fertilizer (Control) Order, 1985 and the summoning order Annexure P-2 and all consequential proceedings.

2. The facts of the case can be described in a narrow compass. The Govt. of Haryana through Shri O.P. Phogat, Quality Control Inspector, Jind filed a criminal complaint under clause 19(1)(a) of Fertilizer (Control) Order 1985 against Satpal Aggarwal (also) and S.H. Chisty, the present petitioner. A sample of Single Super Phosphate 16 per cent was taken from the premises of the dealer M/s Aggarwal Trading Co. Mal Godam Road, Narwana and it was found to the sub-standard. On the basis of the report of incharge, Fertilizer Quality Control Lab. Karnal, Satpal Aggarwal and the present petitioner S.H. Chisty were prosecuted under Clause 19(1)(a) of the Fertilizer (Control) Order. On the basis of the complaint, the learned Special Judge, summoned the present petitioner to face the prosecution. Aggrieved by the complaint as well as the summoning order, the present petition.

3. The basis for the petition made by the present petitioner is that he cannot be prosecuted in the absence of the company which is the manufacturing Unit of the Single Super Phosphate. On the contrary, the defence of the respondent is that Mr. Chisty gave as affidavit on 29.6.1994 to the effect that the single Super Phosphate Manufacturing in the Khaitan Fertilizers Rampur would compromise to all the statutory requirements of the Fertilizer (Control) Order and the petitioner further declared that under the provisions of Clause 24 of the Fertilizer (Control) Order he was responsible for manufacturing activities of Single Super Phosphate at factory level.

4. Clause 24 of the Fertilizer (Control) Order 1985 lays down that "Every manufacturing organisation and pool handling agency shall appoint in that organisation and in consultation with the Central Government, an office, who shall be responsible for compliance with the provision of this order.

5. In compliance to the provisions as contained in Clause 24 of the Fertilizer (Control) Order 1985, Mr. S.H. Chisty has submitted the above affidavit the main portion of which I have reproduced.

6. The main point for determination of this case is whether the petitioner without arraying the company as an accused in the complaint, can be prosecuted or not. In this regard we will have to bank upon the provisions of Section 10 of the Essential Commodities Act, 1955 which lays down that with regard to the offences committed by the company and it lays down that if the person contravening an order made under Section 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 and shall be liable to be proceeded against and punished accordingly.

7. Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

8. In the Insecticides Act 1968, similar provisions as contained in the Essential Commodities, have also been incorporated. I need not reproduce the same in order to burden this order.

9. The contention raised by the learned counsel appearing on behalf of the respondent is that as per undertaking given by the present petitioner in the affidavit that he would be responsible for this manufacturing unit, therefore, he has been rightly prosecuted. Learned AAG, Haryana further submitted with the assistance of Section 10 o