The petitioner who is arrayed as accused No.1 in

C.C.No.446/2021 (P.C.No.71/2021) on the file of learned

Principal Civil Judge and JMFC, Shahapur, (hereinafter

referred to as 'Trial Court') is before this Court invoking

inherent power of this Court under Section 482 of Cr.P.C.,

seeking to quash the order of taking cognizance dated

08.07.2021 for the offence punishable under clause-19(1)

of the Fertilizers Control Order, 1985 (for short ‘FCO,

1985’) and under Sections 3 and 7 of the Essential

Commodities, Act, 1955 (for short, hereinafter referred to

as 'the Act').

3

2.

Brief facts of the case are that the State

represented by the Assistant Director of Agriculture Cum

Fertilizer Inspector, ADA office, Shahapur, filed Private

Complaint before the learned JMFC, Shahapur, against

accused Nos.1 and 2 stating that accused No.1 is Zonal

Manager of Indian Potash Limited and accused No.2 is the

Proprietor of M/s. S.S.Uppin and Brothers, Shahapur. It is

alleged

that

Indian

Potash

Limited

is

involved

in

manufacturing

of

substandard

fertilizers

which

was

procured by accused No.2 for distribution amongst general

public. When the samples were drawn from the premises

of accused No.2, it was found that the same were

substandard. Thereby, the accused have committed

offence under Clause-19(1) of the FCO, 1985 and under

Sections 3 and 7 of the Act. Accordingly, he requested the

Trial Court to take cognizance of the offences and to try

both the accused.

3.

The learned Magistrate took cognizance of the

offences, registered the private complaint as criminal case

4

and issued summons to accused Nos.1 and 2. This order

is under challenge by accused No.1.

4.

Heard Sri Avinash A. Uplaonkar, learned

counsel for the petitioner and Sri Gururaj V. Hasilkar,

learned

High

Court

Government

Pleader

for

the

respondents–State. Perused the materials on record.

5.

Learned counsel for the petitioner submitted

that Section 10 of the Act is not complied with and

therefore, cognizance could not have been taken by the

learned Magistrate. On the sole ground, he prays for

allowing the petition and quashing the criminal case.

6.

Per contra, learned High Court Government

Pleader opposing the petition submitted that petitioner is

representing

the

company

and

therefore,

there

is

compliance of Section 10 of the Act and the Criminal Case

cannot be quashed by exercising inherent power under

Section 482 of Cr.P.C., and accordingly, he prays for

dismissal of the petition.

5

7.

In view of the rival contentions urged by the

learned counsel for both the parties, the point that would

arise for my consideration is:

“Whether the impugned order of

taking cognizance and criminal case is

liable to be quashed invoking inherent

power under Section 482 of Cr.P.C.?

What order?”

My answer to the above point is in ‘Affirmative’ for

the following:

R E A S O N S

8.

Section 10(1) of the Act reads as under:

“10. Offences by companies.—

(1) 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

6

contravention and shall be liable to be

proceeded against and punished accordingly:”

(emphasis supplied)

9.

Bare reading of the section makes it clear that

if the person contravening the order made under Section 3

is a company, the person incharge and responsible to the

affairs of the company in conduct of the business as well

as company being deemed to be guilty of contravention

are liable to be prosecuted. Admittedly, in the present

case, the manufacturer i.e., Indian Potash Limited, is not

made as a party in the Private Complaint as well as in the

Criminal Case. The learned Magistrate has lost sight of the

mandatory provision of Section 10 of the Act. Therefore, I

do find considerable force in the submission of the learned

counsel for the petitioner.

10.

The learned cou