Criminal Misc. No. M-439 of 2010 v. State of Haryana

Judgment

2. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.R. Vohra, Advocate, for the petitioner. Mr. Sandeep Mann, Sr. DAG, Haryana, for the respondents. * * * * SHAM SUNDER, J.

This petition under Section 482 Cr.P.C., for quashing FIR No. 297 dated 25.10.09, under Section 7 of Essential Commodities Act, 1955 (hereinafter to be called as the 'Act' only), P.S. Murthal, and all the subsequent proceedings, arising therefrom, has been filed by the petitioner.

2. On 24.08.09, the District Food and Supplies Controller, Sonipat, alongwith the other officials of the department, inspected the petrol pump of M/s Haryana Agro Industries Corporation Ltd., Criminal Misc. No. M-439 of 2010 2 Murthal, and, took the samples of petrol and diesel. The samples, were sent, to the Panipat Refinery Laboratory, and, report was received, that the same, did not conform, to the specifications of distillation FBP. As such, the petitioner, who was the incharge of the said petrol pump, at the relevant time, breached the provisions of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Mal-practices) Order, 2005 (hereinafter to be called as the 'Order' only), and, committed the offence, punishable under Section 7 of the Act. On the basis of the letter, sent by the District Food and Supplies Controller, Sonipat, the FIR, was registered, against the petitioner.

3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

4. The Counsel for the petitioner, submitted that, the petitioner, was a chemist, and, was transferred, from R&D Centre, and, posted at warehouse Murthal, as per order dated 10.10.08, and, in addition to his own duties, in the warehouse, he was to look after the petrol pump, in question. He further submitted that, the raiding party, took six samples of petrol (motor spirit), and, handed over two samples, to the petitioner. He further submitted that, the department, only sent one sample, to the laboratory for analysis, which was in violation of Clause 8 of the Order. He further submitted that, since the sample, was only taken, from the retail outlet, the raiding party, was also required, to take the tank-truck sample, retained by the outlet, as required, under Clause 3(b) of the Order, and, send the Criminal Misc. No. M-439 of 2010 3 same, to Panipat Refinery Laboratory for analysis. He further submitted that, even the raiding party, did not comply with Clauses 7 (2) and 7(3) of the Order, as, it neither gave any writing, to the petitioner, giving the reasons for raid, nor did it join any independent witness, before taking the samples. He further submitted that, thus, the FIR, is nothing, but an abuse of process of the Court.

5. On the other hand, the Counsel for the respondents, submitted that, six samples, were taken, by the team, which raided the petrol pump, in question, out of which, two samples, were sent to the laboratory. He further submitted that, the laboratory retained only one sample, and, after analysis, came to the conclusion, that the same, did not conform, to the specifications, laid down, in the Order. He further submitted that, the department, did not violate any norms/bye-laws, in the Clauses of the order, in question. He further submitted that, mere non-taking of samples, which were kept by the owner, from the truck-tank, by the raiding party, did not at all cause any prejudice, to the petitioner, nor would it amount to vitiation of the FIR. He further submitted that, since the contents of the sample, were found to be adulterated, the petitioner, committed the offence, punishable under Section 7 of the Act. He further submitted that, as per the standing orders dated 08.01.09 (Annexures R3 and R4), after every three months and six months respectively, raid, should be conducted, on the petrol pumps, and, the information, has to be supplied, to the Oil Corporations and the dealers. He further submitted that continuance of FIR and the subsequent proceedings, Criminal Misc. No. M-439 of 2010 4 are not the abuse of process of the Court.

6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out, in the complaint, or the charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Misc. No. M-439 of 2010 5 Criminal Procedure, may interfere, in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same, do not disclose the commission of any offence, and make out a case against the accused. 4) Where the allegations in the FIR do not Criminal Misc. No. M-439 of 2010 6 constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge. Criminal Misc. No. M-439 of 2010 7 Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

7. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. It may be stated here, that as many as six samples, as per the requisite provisions of the Order, were taken, out of which, two samples, were sent, to the laboratory for analysis. There was, therefore, no breach of any Clause of the Order, by the department. If the laboratory, retained only one sample, then the department, could not be blamed, for the same. It may be stated here, that the sample, is sent, to the laboratory, for the purpose of analysis. If that laboratory found, that the contents of one sample, were sufficient for analysis, and, after analyzing the same, it came to the conclusion, that the same, did not conform, to the specifications, laid down, in the Order, meaning thereby, the contents were adulterated, then the offence, punishable under Section 7 of the Act, stood constituted. Non-joining of an independent witness, and, non- recording of the reasons, as provided, under Clause 7 of the Order, in my opinion, did not, in any way vitiate the FIR or the further proceedings. The petitioner, shall be given full opportunity, during Criminal Misc. No. M-439 of 2010 8 the trial of the case, to put-forth his defence and prove, as to what prejudice, was caused, to him, on account of alleged non-compliance of some of the provisions of the Order. It would be, for the trial Court, to adjudicate upon the factual dispute, if any, or, as to whether, any prejudice, was caused, to the petitioner, on account of alleged violation of certain provisions of the Order. If, ultimately, the trial Court, found that, on account of that reason, a great prejudice, was caused, to the petitioner, then, it will decide the case accordingly. From the allegations, contained in the FIR and the documents, attached therewith, the offence, punishable under Section 7 of the Act, was prima-facie committed, by the petitioner. The mere fact, that the petitioner, was given the additional charge, does not absolve him of his liability, as, he was looking after the petrol pump. Continuance of FIR, is, thus, not an abuse of process of the Court. The petition, is liable to be dismissed.

8. For the reasons recorded above, Criminal Misc. No. M-439 of 2010, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

9. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately.

05.08.2010 Amodh (SHAM SUNDER) JUDGE