Allowed

D Suman S/O Subash v. the State of Karnataka

Karnataka HC11 Oct 2023CRL.P/103878/2022

Case brief

AI extract

What is this about?

Karnataka High Court quashed criminal proceedings against petitioners under Section 482 Cr.P.C. holding that prosecution cannot proceed against individuals when the offending company was not arraigned as an accused, citing Section 10 of ECA 1955 and Section 33 of Insecticide Act.

What did the court decide?

Criminal petition allowed; proceedings in C.C. No.3945/2022 and C.C. No.131/2021 against petitioners quashed.

D Suman S/O Subash Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:12270 CRL.P No. 103878 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 103878 OF 2022

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BETWEEN:

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D. SUMAN S/O SUBASH, AGE. 33 YEARS, OCC. SECRETARY NEELAKANTESWARA CCS, GOVERNMENT FARE PRICE SHOP, R/O. S L CHOWKI, HOSAPETE, DISTRICT. BALLARI-583105.

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NIRAMALA W/O SUBASH, AGE. 50 YEARS, OCC. PRESIDENT OF NEELAKANTESWARA CCS, GOVERNMENT FARE PRICE SHOP, R/O. S L CHOWKI, HOSAPETE, DISRICT. BALLARI-583105.

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… PETITIONERS

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(BY SRI. SRINIVAS B. NAIK, ADVOCATE)

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AND:

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VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL Date: 2023.10.16 13:42:14 +0530

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THE STATE OF KARNATAKA, THROUGH TOWN PS, HOSAPETE, DISTRICT BALLLARI, R/BY SPP HIGH COURT OF KARNATAKA, DHARWAD BENCH-580011.

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… RESPONDENT

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(BY SRI. V.S. KALASURMATH, HCGP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.PC., SEEKING TO QUASH THE ORDER DATED 15.03.2021 AND THE CHARGE SHEET IN CC NO.131/2021 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC HOSPETE (FIR REGISTERED IN CRIME NO.60/2020 OF HOSAPETE TOWN POLICE STATION) FOR THE OFFENCES PUNISHABLE UNDER SECTION FOR THE OFFENCE PUNISHABLE UNDER SCTION 3,6 (A) AND 7 OF ESSECTIONAL COMMODITIES ACT 3 (2) (I) 4,5,7 (1) (A) (I) 8,9 OF KARNATAKA

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2 - NC: 2023:KHC-D:12270 CRL.P No. 103878 of 2022

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ESSENTIAL COMMODITIES (STORAGE ACCOUNTS MAINTAINING VALUE NOTIFICATION) ORDER 1981 SECTION 3, 4, 12, 18 AND 19 OF KARNATAKA ESSENTIONAL COMMODITIES PUBLIC DISTRUBUTION SYSTEM PUBLIC CONTROL ORDER AND UNDER SECTION 120(B) 420 OF IPC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court calling in

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question the proceedings in C.C. No.131/2021 registered for the offences punishable under Sections 3, 6(a) and 7 of

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the Essential Commodities Act, Sections 3(2)(i), 4, 5 7(1)(a)(i), 8, 9 of Karnataka Essential Commodities (Storage Accounts Maintaining Value Notification) order 1981 Sections 3, 4, 12, 18 and 19 of the Karnataka Essential Commodities Public Distribution System Public Control Order and under Sections 120(B), 420 of the IPC.

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Learned counsel for the petitioners submit that

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the issue in the lis stands covered by the judgment rendered by this Court in the case of D.Suman and another vs. The State of Karnataka in Crl.P. No.103878/2022, disposed off on 21.02.2022, wherein the

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3 - NC: 2023:KHC-D:12270 CRL.P No. 103878 of 2022

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identical issues have been raised and have been answered in favour of the petitioner therein. This Court has held as follows:

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“Heard Sri. Sandesh Chouta, learned Senior Counsel for the petitioner and Smt. Girija S. Hiremath, learned High Court Government Pleader for respondent.

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2. The present petition is filed under Section 482 of Cr.P.C. with the following prayer :-

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"Wherefore, for the reasons stated herein above, this Hon’ble Court be pleased to:

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i. Call for records.

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ii. Set-aside the order of taking cognizance of the offence u/s 29 of Essential Commodities Act, 1968 dated 08.09.2022 in C.C. No.3945/2022, pending on the file of Principal Civil Judge and JMFC, Koppal insofar as the petitioner/accused Nop.2 is concerned at ANNEXURE-K.

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iii. Set-aside the complaint in C.C. No.3945/2022 for the offence punishable u/s 29 of Essential Commodities Act, 1968 pending on the file of Principal Civil Judge and JMFC, Koppal, insofar as the petitioner/accused No.2 is concerned.

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iv. Pass such other orders as this Hon’ble Court deems fit in the circumstances of the case in the interest of justice and equity. ”

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3. Brief facts of the case are as

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under:-

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3.1. Petitioner is shown as accused No.2 in respect of a crime punishable under Section 29 of Insecticide Act based on the report given by the Assistant Director of Agriculture Koppal.

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3.2. Based on the credible information he had conducted a raid and collected samples from the shop namely ‘Amino Gold Plus’ dealing with pesticides and other agriculture items. The samples were sent to the laboratory and the samples find out to be spurious in nature

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NC: 2023:KHC-D:12270 CRL.P No. 103878 of 2022

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and report thereof shown which is not conducive to the required presence of the pesticides, resulted in launching a criminal prosecution against the petitioner and another accused. Learned Magistrate took cognizance and same is under question before this Court by second accused.

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4. Shri. Sandesh Chouta, learned Senior Counsel for the petitioner reiterating the grounds urged in the petition, contended that the prosecution has failed for non compliance of required statutory provisions and therefore, continuation of the proceedings before the trial Magistrate is nothing but abuse of process of law and sought for quashing of pending proceedings before learned Magistrate in C.C. No.3945/2022.

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5. In support of his arguments, learned Senior Counsel for petitioner relied on the judgment rendered by this Court in Criminal Petition

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NC: 2023:KHC-D:12270 CRL.P No. 103878 of 2022

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No.101933/2022 and also the orders of Co-ordinate Benches in this regard.

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6. Learned High Court Government Pleader however contended that these are all the matters of trial and non impleading the company who manufactured the pesticides did not vitiate the launched criminal prosecution and that itself could be considered as a factor or favor in the accused/petitioner in the trial and sought for dismissal of the petition.

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7. This Court perused the material on record meticulously.

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8. Admittedly, the prosecution did not comply the statutory requirement in arraigning the company which manufactured the pesticides. In this regard, Section 10 of Essential Commodities Act, 1968 reads as under:

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“10. Offences by companies:-

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(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 contravention and shall be liable to be proceeded against and punished accordingly: 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.

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(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purposes of this section,—

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(a) “company’’ means any body corporate, and includes a firm or other association of individuals; and

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(b) “director’’ in relation to a firm means a partner in the firm."

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9. Shri. Sandesh Chouta, Learned Senior Counsel for the petitioner submitted that provisions of Section 33 of Insecticide Act, is akin to Section 10 of Essential Commodities Act and therefore, in respect of an offence said to have been committed by a company, in the absence of company being arraigned as a party accused, proceedings initiated by the prosecution only against in its individual capacity is impermissible.

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10. In order to appreciate the same, it is necessary to call out Section 33 of Insecticide Act, which reads as under:

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“ 33. Offences by companies.— (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, or was responsible to the company for the conduct of the business of, the company, as well as the company, shall be

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deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

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Provided that nothing contained in this subsection shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

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(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

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Explanation.—For the purpose of this section:—

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(a) “company” means any body corporate and includes a firm or other association of individuals; and

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(b) “director”, in relation to a firm, means a partner in the firm.”

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11. On perusal of the same, there is sufficient force in the arguments put forth on behalf of the petitioner.

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12. This Court in the case of Mallikarjun S/o. Girimallappa Shegunashi Vs. The State of Karnataka passed in Criminal Petition No.101933/2022 dated 20.07.2022 has clearly held that such prosecution cannot be proceeded further in the absence of company being arraigned as additional accused.

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13. Accordingly, the criminal prosecution with regard to the petitioner/accused herein cannot be allowed to be continued as it results in abuse of process of law. Hence, the following order is passed:

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ORDER

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Criminal petition is allowed.

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