Allowed

Girdhari Lal Hisaria @ Girdhari Pd. Hisaria v. the State of Bihar

Patna HC6 Sept 2012CR. MISC./17844/2011

Case brief

AI extract

What is this about?

The High Court of Patna quashed the order of cognizance and subsequent trial proceedings. The court relied on a prior ruling that since samples were taken from sealed bags, the manufacturer's responsibility lay for the sub-standard quality, absolving the retailer of delinquency.

What did the court decide?

The order of cognizance dated 21.4.2011 and subsequent trial proceedings were quashed.

Girdhari Lal Hisaria @ Girdhari Pd. Hisaria Vs the State… — Landlord and Tenant | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Miscellaneous No.17844 of 2011

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====================================================== Girdhari Lal Hisaria @ Girdhari Prasad Hisaria, son of Sri Satya Narayan Prasad Hisaria, resident of Akharaghat Raod, P.S. Town Muzaffarpur, District- Muzaffarpur. .... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. N. K. Agrawal, Sr. Advocate. Mr. D.N. Tiwari, Advocate. For the Opposite Party/s : Mr. Ajay Kumar-I, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 2 06-09-2012 Heard learned counsel for the petitioner and learned counsel for the State.

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This application has been filed for quashing the order dated 21.4.2011 passed in Trial No.136 of 2011, arising out of Town P.S. Case No.367 of 1995 by the Sub Divisional Judicial Magistrate (East) Muzafarpur by which he took cognizance against the petitioner for the offence under section 7 of the Essential Commodities Act.

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From the First Information Report it appears that the District Agriculture Officer collected samples for analysis from the sealed bags of fertilizer from the shop of the petitioner who was running business in the name and style of M/S Ashok Grain Agency. It further appears that samples of fertilizers were sent to Central Fertilizer Quality Control

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Patna High Court Cr.Misc. No.17844 of 2011 (2) dt.06-09-2012

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and Training Institute, Faridabad and the said laboratory sent its report dated 10.10.1995 and found the fertilizer of sub-standard. It further appears that on receipt of the report from the laboratory the District Agriculture Officer initiated two proceedings against the petitioner i.e. cancellation of licence granted under Essential Commodities Act and another institution of criminal case under section 7 of the Essential Commodities Act i.e. present case. It appears that cancellation of licence was passed on the basis of report of the Central Laboratory vide order dated 8.2.1996.

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Cancellation of license was challenged before this Court vide Cr.W.J.C. 155 of 1996 and this Court while passing the order has found that the District Agriculture Officer took samples of fertilizers from sealed bag of the petitioner’s godown. The fertilizers of which samples were taken were in the form of granulated mixtures were taken from the sealed bags. This fact was not denied in the counter affidavit filed on behalf of the State. This Court had accepted the plea of the petitioner that samples were taken from the sealed bags, if there was any deficiency, it would be responsibility of the manufacturers and that could not be shifted on the petitioner. While allowing the writ petition

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Patna High Court Cr.Misc. No.17844 of 2011 (2) dt.06-09-2012

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this Court had followed the judgment of this Court in the case of M/s Laxmi Store Vs. State of Bihar and others, reported in 1988 P.L.J.R. 720 where on similar facts this Court observed as follows:

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“ The finding recorded by the Fertilizer Controller as well as the Secretary, Agriculture Department was that the sample had been taken from the sealed bags as per procedure. If the bags were sealed, it is obvious that there was no tempering of the contents either at the retailing point or at the wholesale point. The short fall in standard must therefore be attributed to the manufacturer, i.e. Rashtriya Chemicals Ltd., a Government of India undertaking. We have thus failed to find any delinquency on the part of the petitioner. We fail to appreciate the reason for cancellation of the licence. In that view of the matter, Annexures 5 and 6 cannot be sustained. They are quashed accordingly.”

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Learned counsel for the petitioner submits that the judgment that has been passed by this Court in the writ petition is equally be applicable to the present criminal case as the fact in the writ petition as well as in the present case are identical arising from the same sample of fertilizer taken out from the same bag. He further submits that when this Court has accepted the plea of the petitioner that the responsibility will be of manufacturers when the fertilizers was obtained from the sealed bags and bags were not found tempered in any manner.

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Patna High Court Cr.Misc. No.17844 of 2011 (2) dt.06-09-2012

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Learned counsel for the State has challenged the argument advanced by learned counsel for the petitioner and has submitted that charge-sheet has been filed and the court should not disturb the order of cognizance as the matter is of trial where all issues pertaining to fertilizer being substandard will be decided at that stage.

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Having considered the rival contentions of learned counsel for the parties, as it appears that the issue with regard to sub-standard of fertilizer has been considered by this Court in the Cr.W.J.C. No.155 of 1996 where this Court has accepted the plea that it would be responsibility of manufacturers when from the sealed bags the fertilizer was taken and was found to be of sub-standard. If the fertilizer which had come from manufacturer was of sub standard, it is the manufacturer who should call upon not the seller as he could have been proceeded only in the circumstances if the fertilizer would have been taken from tampered sealed bags

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In view of the judgment of this Court, this Court finds that the order of cognizance dated 21.4.2011 passed in connection with Town P.S. Case No.367 of 1995, Tr. No.367 of 1995 is quashed and subsequent proceeding of the trial is also quashed.

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Patna High Court Cr.Misc. No.17844 of 2011 (2) dt.06-09-2012

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This application is accordingly allowed.
Vinay/- (Shivaji Pandey, J)

Girdhari Lal Hisaria @ Girdhari Pd. Hisaria v. the State of Bihar

Case brief

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Girdhari Lal Hisaria @ Girdhari Pd. Hisaria v. the State of Bihar

Case brief

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