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High Court Of Madhya Pradesh
TEJ SHANKAR
KHAGESH KUMAR GOEL - Appellant
Versus
STATE OF M.P. - Respondents
CRIMINAL REVISION 329 Of 1996
Decided On : 08/04/1997
CRIMINAL PROCEDURE CODE - SECTION 397(2) - INTERLOCUTORY ORDER - FRAMING OF CHARGE - REVISION PETITION - MAINTAINABILITY - ESSENTIAL COMMODITIES ACT - SECTION 3 R/W SECTION 7 - FERTILIZER CONTROL ORDER 1985 - SECTION 19 - VIOLATION - PROCEDURE FOR TAKING SAMPLE - MANDATORY - NO JOINT TRIAL OF MANUFACTURER, VENDOR, OR DISTRIBUTOR - CONNECTING LINKS REQUIRED - ESSENTIAL COMMODITIES ACT - SECTION 3 R/W SECTION 7 - FERTILIZER CONTROL ORDER 1985 - SECTION 19 - VIOLATION - PROCEDURE FOR TAKING SAMPLE - MANDATORY - NO JOINT TRIAL OF MANUFACTURER, VENDOR, OR DISTRIBUTOR - CONNECTING LINKS REQUIRED
Fact of the Case:
The petitioner, a fertilizer manufacturer, was prosecuted under Section 3 r/w Section 7 of the Essential Commodities Act and Section 19 of the Fertilizer Control Order 1985 for allegedly selling sub-standard fertilizer. The petitioner challenged the framing of the charge, arguing that there was no evidence of a business relationship between the petitioner and the dealers from whom the samples were taken, that the procedure for taking samples was not followed, and that there was no allegation that the samples were taken from bags owned by the petitioner.
Finding of the Court:
The court held that the revision petition was maintainable as the order framing the charge was not an interlocutory order. The court found that the procedure for taking samples, as laid down in Schedule II of the Fertilizer Control Order 1985, was mandatory and that there was no evidence that the procedure was followed. The court also found that there was no allegation that the samples were taken from bags owned by the petitioner, and that there was no evidence of a business relationship between the petitioner and the dealers from whom the samples were taken. The court further held that there could not be a joint trial of the manufacturer, vendor, or distributor under the Essential Commodities Act unless there were allegations of connecting links between them.
Issues: 1. Whether the revision petition was maintainable. 2. Whether the procedure for taking samples, as laid down in Schedule II of the Fertilizer Control Order 1985, was mandatory. 3. Whether there was evidence that the procedure for taking samples was followed. 4. Whether there was an allegation that the samples were taken from bags owned by the petitioner. 5. Whether there was evidence of a business relationship between the petitioner and the dealers from whom the samples were taken. 6. Whether there could be a joint trial of the manufacturer, vendor, or distributor under the Essential Commodities Act.
Ratio Decidendi: 1. An order framing a charge is not an interlocutory order if it negates the plea of the accused that no charge is made out and he is entitled to be discharged. 2. The procedure for taking samples, as laid down in Schedule II of the Fertilizer Control Order 1985, is mandatory. 3. There was no evidence that the procedure for taking samples was followed. 4. There was no allegation that the samples were taken from bags owned by the petitioner. 5. There was no evidence of a business relationship between the petitioner and the dealers from whom the samples were taken. 6. There cannot be a joint trial of the manufacturer, vendor, or distributor under the Essential Commodities Act unless there are allegations of connecting links between them.
Final Decision: The court allowed the revision petition and quashed the charge framed against the petitioner.
( 1 ) THESE three Revision petitions arise out of three different cases against the present petitioner. As they raise common questions of law, they have been heard together and are being disposed of by this common order.
( 2 ) THE facts on the basis of which the petitioner has been prosecuted under Section 3 r/w Section 7 of the Essential Commodities Act and violation of Section 19 of the Fertilizer Control Order 1985, in the aforesaid three different cases are also more or less similar.
( 3 ) IT is alleged that Raghuveer Saran Gupta non-petitioner No. 2 was proprieter of M/s. Raghuveer Saran. Arun Kumar, a dealer in fertilizers at Dinara (326/96) Satish Kumar Jain, non-petitioner No. 2 was proprieter of M/s. Vivek Traders, a dealer of fertilizers at Pohri (327/96) Hukum Chand Nagaria, non-petitioner No. 2 was proprieter of M/s. Jwala Prasad Hukum Chand, a dealer in fertilizers at Sirsaud (328/96 ). There was a stock of Vishwas Brand Single Super Phosphate (In short SSP) with the said proprieters and sample was taken on different dates in the aforesid three cases and it was sent to the fertilizer analyst for examination. A report dated 4-9-1995 was received and according to the report sample was found sub-standard to the extent mentioned in the report. In all the three cases it was mentioned in the report that the fertilizer was purchased from the firms mentioned therein. The allegation made against the petitioner was that he was the manufacturer of Vishwas Brand Single Super Phosphate (SSP) which was a company known as Shriniwas Fertilizers Ltd. Jhansi (U. P. ). The petitioner claimed that there was, however, no mention of the procedure adopted by the complainant in taking sample. There was no allegation about the business relationship between the said firms and the petitioner. The said firms are not agent of the petitioner. The shops from which the sample was received did not belong to Shriniwas Fertilizers Ltd. Jhansi (U. P.) M/s. Shrinivas Fertilizers Ltd. had no sale depot in M. P. or at Shivpuri. There is no allegation in the F. I. R. that the sample was taken from the bags which were owned by M/s. Shrinivas Fertilizers Ltd. even if it was found that the fertilizer in question was the same which was manufactured by M/s. Shriniwas Fertilizers Ltd. Jhansi (U. P.) There was no allegation to support the allegation that sample was taken from the bags which were in the ownership of the M/s. Shriniwas Fertilizers Ltd. There is also nothing to show that the said firms had obtain any warranty from M/s. Shriniwas Fertilizers Ltd. or that the goods were kept intact in the same condition in which they were purchased. Procedure for taking sample had been laid down in Schedule II of the Fertilizer Control Order 1985 and the provisions are mandatory. Nothing has been shown that the procedure was actually followed. Unless it is specifically alleged that the petitioner was the owner he could not be proceeded with under the Essential Commodities Act. There could not be a joint trial under the provisions of Essential Commodities Act of the alleged manufacturer or Vendor or distributor. They can only be tried if allegations are made that they have connecting links between them so as to constitute the same transaction. This link is absolutely missing in the case. The petitioner before the lower Court contested this point at the time of framing the charge. But the lower Court repelled the contentions and framed the charge and hence the present petitions.
( 4 ) A preliminary objection has been raised on behalf of the respondent that revision petition against the framing of charge is not maintainable as it is an interlocutory order.
( 5 ) LEARNED counsel for the petitioner argued at length that the revision petition lies. In support of his contentions she placed reliance upon certain authorities.
( 6 ) THE earliest authority upon which reliance has been placed is 1977 Cri LJ 1891 : AIR 1977 SC 2185, Amarnath v. State of Haryana.
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