The prosecution against individuals under the Essential Commodities Act is impermissible without arraigning the company as an accused.

ORAL ORDER

This petition by the accused persons in C.C.No.447/2024 arising out of PCR No.19/2024 on the file of Prl. Senior Civil Judge & CJM, Udupi, seeking quashing of the proceedings filed by the respondent against the petitioners for alleged violation of Sections 2(h), 7, 19(c) r/w 21(a) of Fertilizers (Inorganic, organic or mixed)

(Control) Order, 1985.

2. Heard learned counsel for the petitioners and learned Addl. SPP for the respondent and perused the material on record.

3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioners invited my attention to the impugned complaint in order to point out that the petitioner No.1 working as responsible person at Hylyne Agencies and petitioner No.2 working as responsible officer at Aries Agro Ltd., it was incumbent upon the respondent – complainant to arraign the aforesaid proprietary firm and partnership firm as parties to the proceedings in terms of Section 10 of the Essential Commodities Act, 1955 (for short, the ‘EC Act’). It is submitted that non-arraignment of the aforesaid firms as parties in terms of Section 10 of the EC Act would vitiate the entire proceedings, which deserves to be quashed as held by the Co-ordinate Bench of this Court in the case of Shri Mahesh Naik Vs. The State of Karnataka – Crl.P.No.100296/2023 dated

07.02.2023.

4. Per contra, learned Addl. SPP submits that there is no merit in the petition and that the same is liable to be dismissed.

5. As rightly contended by learned counsel for the petitioners, Section 10 of the EC Act mandates that in a proceedings in relation to offence under Section 7 of the EC Act, r/w Section 19(A)(B) of the Fertilizer Control Order, 1985 , it was incumbent upon the respondent – complainant to arraign the proprietary firm and partnership firm as parties along with the petitioners to the proceedings in the absence of which the entire proceedings would be vitiated as held by this Court in Mahesh Naik’s case supra, wherein it was held as under:

“Learned High Court Government Pleader takes notice for respondent / State.

2. The question involved in this petition since being by a decision of this Court rendered in Crl.P.No.102651/2022 dated 14.09.2022, with the consent of both the learned counsel, petition is taken up for disposal.

3. The petitioner has sought to quash the proceedings in C.C.No.573/2021 pending on the file of the Court of Prl.

Civil Judge and JMFC, Mudhol.

4. A private complaint is filed by the Fertilizer Inspector-cum-Assistant Director of Agriculture, (HQ), O/o Joint Director of Agriculture, Bagalkote, against the petitioner and another alleging that they have committed an offence under Clause 19 of the Fertilizer (Control) Order, 1985 ('FCO, 1985' for short) read with Sections 3 and 7 of the Essential Commodities Act, for having manufactured and sold the non- standard fertilizer.

5. Accused No.1 is said to be the owner / proprietor of the firm M/s. Mahantesh Enterprises, doing business as a retailer in fertilizers and the petitioner/accused No.2 is said to be the Compliance Officer of one ZUARI AGRO CHEMICAL LTD. It is alleged that he is responsible officer for 19-19-19 complex fertilizer of Zuari Agro Chemical Ltd., as per Clause 24 of the FCO, 1985 and the said company has manufactured the non-standard fertilizers in question and supplied to the retailers and thereby committed the afore-

mentioned offence.

6. The charges leveled against the petitioner is that he has violated Clause 19 of the FCO, 1985 read with Sections 3 and 7 of the Essential Commodities Act. Admittedly, the company is not arraigned as an accused in the complaint. In similar circumstances, a co-ordinate bench of this Court in the above