State of Punjab Vs. Nohar Chand [1984]
INSC 108 (17 May 1984)
DESAI, D.A.
DESAI, D.A.
SEN, AMARENDRA NATH (J)
CITATION: 1984 AIR 1492 1984 SCR (3) 839 1984
SCC (3) 512 1984 SCALE (1)869
ACT:
Territorial Jurisdiction of the Criminal
Court, whether the Court where sub-standard fertilizer was found be marketed
will have the jurisdiction to take cognizance and try the manufacturer of
sub-standard fertilizer, even if the manufacturing activity is at an entirely
different place and under different court jurisdiction along with the marketing
agent-Code of Criminal Procedure, 1973 (Act II of 1974), sections 179 and 180,
scope of.
HEADNOTE:
The respondent was carrying on business of
manufacturing fertilizers at Ludhiana under the name and style of Messrs Varinder
Agro-Chemicals (India) and marketed his product through his agent Messrs
Sachdeva Enterprises Kapurthala. On finding the sample collected by a
Fertilizer Inspector from the said agent on December 12, 1978 to be of
sub-standard, quality the Chief Agricultural officer, Kapurthala filed a
criminal complaint being CC No. 156-C of 1980 on December 24, 1980 in the Court
of the Chief Judicial Magistrate, Kapurthala against the two partners of Messrs
Sachdeva Enterprises and the Respondent under s. 13A of the Essential
Commodities Act, 1955 read with s. 13(1) (a) of the Fertilizers Control order
1957. On July 20, 1981 respondent moved an application before the trial court
praying that he be discharged and the proceedings be dropped against him on the
ground that the Kapurthala Court had no territorial jurisdiction to try him
because he carried on business of manufacture of fertilizers at Ludhiana.
Relying no the decision of the Gujarat High Court in State of Gujarat v.
Agro-Chemicals etc. (1980 Cr. L. J. p. 516) the Learned Chief Judicial
Magistrate discharged the respondent and dropped the proceedings against him.
The Criminal Revn.
Application No. 48 of 1981 filed by the State
of Punjab was allowed by the Additional Sessions Judge, Kapurthala holding that
in view of the provisions of Section 180 of the Code of Criminal Procedure, the
Kapurthala Court had jurisdiction to try the Respondent along with the other
co-accused.
Thereupon the respondent preferred a revision
petition being Crl. Misc. No. 1413 M of 1982 in the High Court of Punjab and
Haryana. A learned Single Judge of the High Court relying on the decision of
that Court in Satinder Singh and Ors. v. State of Punjab, Crl. Misc. Appln. No.
1158-M/1981 dated 24-2-1982 which accepted the view taken by the Gujarat High
Court, allowed the revision petition and set aside the decision of the
Additional Sessions Judge. Hence the State Appeal by Special Leave of the
Court.
Allowing the appeal, the Court 840
HELD: 1. The Court in whose jurisdiction
sub-standard fertilizer was found to be marketed will have the jurisdiction to
try manufacturer of sub-standard fertilizer even if the manufacturing activity
is at an entirely different place. The manufacturer as well as the dealer can
be tried at a place where the consequences of the manufacturing and selling of
sub standard fertilizer had ensued as envisaged in ss. 179 and 180 of the Code
of Criminal Procedure. [in] 1: 2. Now if manufacturing sub-standard fertilizer
is by itself an offence and marketing the sub-standard fertilizer is itself a
distinct offence but they are so inter connected as cause and effect, both can
be tried at one or the other place. If one manufacturers the sub- standard fertilizer,
wherever it is marketed the inter- relation or casual connection is of cause
and effect. The situation will be adequately covered by ss. 179 and 180 of the
Code of Criminal Procedure. [843G-H] Incharge Production, Haryana State Coopt.
Supply And Marketing Federation Ltd. (HAFED) Fertilizer v. State of Punjab;
Crl. Misc. No. 6763 M of 1982 decided by the High Court on 9-3-1983 approved.
1: 3. Where a sample of fertilizer is taken
from a bag which was in the same condition as delivered by the manufacturer and
it was in possession of a marketing agent manufacture and sale of sub-standard
fertilizer would constitute indisputably one transaction. But this is
predicated upon the facts which may be disclosed in the trial and proved.
[844D-E] Bhagwan Das Jagdish Chander v. Delhi Administration [1975] Supp. S.C.R
30, distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 247 of 1984.
Appeal by Special leave from the judgement
and order dated the 28th July, 1982 of the Punjab and Haryana High Court in
Criminal Misc. No. 1472-M/82.
K.C Dua and S.K. Bagga for the Appellant.
Frank Anthony and Sushil Kumar for the
Respondent.
The Judgment of the Court was delivered by
DESAI, J. Special leave granted.
One Nohar Chand, the respondent herein, was
carrying on 841 business of manufacturing fertilisers at Ludhiana under the
name and style of M/s Varinder Agro-Chemicals (India). One inspector designated
as Fertiliser Inspector visited the premises of M/s Sachdeva Enterprises,
Kapurthala ('agent' for short) on December 12, 1978 and obtained a sample of
the fertiliser manufactured by Nohar Chand which was being marketed by the
agent. The sample was obtained for the purpose of analysis to ascertain whether
it conformed to the prescribed standard. On analysis it was found to be sub-
standard. The Chief Agricultural Officer, Kapurthala filed a criminal complaint
being C.C. No. 156-C of 1980 on December 24, 1980 in the Court of the Chief
Judicial Magistrate, Kapurthala against the two partners of M/s Sachdeva Enterprises,
one Raj Shetty and respondent Nohar Chand Gupta, the manufacturer of
sub-standard fertiliser u/s 13-A of the Essential Commodities Act,. 1955 read
with Section 13(1)(a) of the Fertilisers Control Order, 1957. The learned Chief
Judicial Magistrate framed the charge against all the accused for the
aforementioned offence. On July 20, 1981 respondent Nohar Chand moved an
application before the learned Magistrate praying that he be discharged and the
proceedings be dropped against him on the ground that the Court of Chief
Judicial Magistrate, Kapurthala had no territorial jurisdiction to try him
because he carried on business of manufacture of fertilisers at Ludhiana. The
learned Chief Judicial Magistrate following the decision of the Gujarat High
Court in State of Gujarat v. Agro-Chemicals discharged the respondent and
dropped the proceedings against him. The State of Punjab preferred Criminal
Revision Application No. 48 of 1981 in the Court of the learned Additional
Sessions Judge, Kapurthala who by his judgment and order dated February 13,
1982 set aside the order of learned Chief Judicial Magistrate holding that in
view of the provisions contained in Section 180 of the Code of Criminal
Procedure, the Court of the Chief Judicial Magistrate, Kapurthala had
jurisdiction to try the respondent along with the other co-accused. Thereupon
the respondent preferred a revision petition being Criminal Misc. No. 1473-M of
1982 in the High Court of Punjab and Haryana. A learned Single Judge of the
High Court held that in view of the decision in Satinder Singh and Ors. v.
State of Punjab which accepted the view taken by the Gujarat High Court, the
learned Additional Sessions Judge was in error in interfering with the order of
the learned Chief Judicial Magistrate and that the Court of the Chief Judicial
Magistrate, 842 Kapurthala had no jurisdiction to try Nohar Chand, the
manufacturer. Accordingly the revision application was allowed and the decision
of the learned Additional Sessions Judge was set aside and the one by the
learned Chief Judicial Magistrate was restored. Hence this appeal by special
leave.
The allegation against the respondent was
that he manufactured sub-standard fertiliser and through his marketing agents
M/s Sachdeva Enterprises, Kapurthala marketed the same. The offence was
disclosed when the Fertiliser Inspector took a sample of the substandard
fertiliser from the marketing agents at Kapurthala. It is an admitted position
that the respondent who is the manufacturer carries on his business of
manufacturing fertilisers at Ludhiana. The question posed is: whether the Court
of Chief Judicial Magistrate, Kapurthala where the marketing agents of
sub-standard fertiliser manufactured by the respondent marketed the same, will
have jurisdiction to try the respondent, the manufacturer of the sub-standard
fertiliser along with the marketing agents.
The learned Single Judge of the High Court
following the decision in Satinder Singh's case held that the manufacturer of
sub-standard fertiliser cannot be tried where the commodity was being marketed.
The view taken by the High Court with respect is wholly untenable in law. But
before examining the legal position subsequent development of law in the same
High Court on this very point may be noticed.
To begin with, let it be pointed out that the
decision against which the present appeal is being heard was quoted before
another learned Single Judge of the same High Court and as the learned Single
Judge had grave doubt about the correctness of the view taken by the learned
Judge in this case, he referred the matter for authoritative pronouncement to a
larger bench of the same High Court. This referred matter: In-charge
Production, Haryana State Cooperative Supply and Marketing Federation Ltd.
(HAFED) Fertilizer v. State of Punjab came up for hearing before a Division
Bench of the High Court. The Division Bench referred to the decision rendered
by the learned Single Judge in this case and clearly disapproved it and in
terms overruled it.
Simultaneously it also overruled the decision
in Satinder Singh's case which the learned Judge had followed in this case. It
can be safely said that the larger 843 bench of the High Court has disapproved
the view taken by the learned Judge in this case.
The respondent, the manufacturer of the
sub-standard fertiliser is to be tried alongwith those who marketed the
sub-standard fertiliser manufactured by him as his agents.
The question is whether the court where the
sub-standard fertiliser is marketed would have jurisdiction to try the
manufacturer of the sub-standard fertiliser whose manufacturing activity is at
a different place. This very argument was posed before the Division Bench of
the High Court. The High Court after referring to Sections 179 and 180 of the
Code of Criminal Procedure, 1973 held that the court where sub-standard
fertiliser was found to be marketed will have the jurisdiction to try the
manufacturer of sub- standard fertiliser even if the manufacturing activity is
at an entirely different place. The Division Bench held that the manufacturer
as well as the dealer can be tried at a place where the consequences of the
manufacturing and selling of sub-standard fertiliser had ensued as envisaged in
Sections 179 and 180 of the Code of Criminal Procedure.
That in our opinion appears to be the correct
view in law.
Section 179 provides that when an act is an
offence by reason of anything which has been done and of a consequence which
has ensued, the offence may be inquired into or tried by a court within whose
local jurisdiction such thing has been done or such consequence has ensued.
Section 180 provides that where an act is an offence by reason of its relation
to any other act which is also an offence or which would be an offence if the
doer were capable of committing an offence, the first-mentioned offence may be
inquired into or tried by a court within whose local jurisdiction either act
was done.
Now if manufacturing sub-standard fertiliser
is by itself an offence and marketing the sub-standard fertiliser is itself a
distinct offence but they are so inter-connected as cause and effect, both can
be tried at one or the other place. If one manufactures the sub-standard
fertiliser, wherever it is marketed the inter-relation or casual connection is
of cause and effect. The situation will be adequately covered by Secs. 179 and
180 of the Code of Criminal Procedure. We are in agreement with the later
decision of the Division Bench rendered on March 9, 1983 that the court where
the sub-standard fertiliser is being marketed will equally have the 844
jurisdiction to try the manufacturer of sub-standard fertiliser. This is so
obvious that any further discussion appears to us to be superfluous.
Mr. Frank Anthony, learned counsel who
appeared for the respondent urged that the concurring decision of Alagiriswami,
J. in Bhagwandas Jagdish Chander v. Delhi Administration would clearly show
that the manufacture of an adulterated article of food and selling the same
cannot be said to be part and parcel of the same transaction and that unless
therefore the complaint shows that the sample of fertiliser was taken from a
bag of fertiliser as delivered by the manufacturer, it is distinctly possible
that adulteration may have taken place on a subsequent occasion and therefore
one cannot infer manufacture of sub-standard fertiliser from it being so
marketed when the sample was taken from the marketing agency. This approach
overlooks the fact that the trial is yet to be held. One can envisage two
situations. When a sample of fertiliser is taken from a bag which was in the
same condition as delivered by the manufacturer and it was in possession of a
marketing agent manufacture and sale of sub-standard fertiliser would
constitute indisputably one transaction. But this is predicated upon the facts
which may be disclosed in the trial and proved. In Bhagwandas Jagdish Chander's
case, the allegation was that the appellant before the court sold ghee to a
vendor which was on analysis found to be adulterated and both were jointly
tried under Section 7 read with Sec. 16 of the Prevention of Food Adulteration
Act, 1954. In the course of trial, the purchaser of ghee wanted warrantor to be
discharged so that he can be examined as a defence witness to prove his own
purchase of the offending article.
This application was granted and the
warrantor was acquitted. After the acquittal of the warrantor, the learned
Magistrate impleaded the manufacturer Mr. Gauri Shanker Prem Narain under
section 20-A of the Prevention of Food Adulteration Act, 1954. An appeal was
preferred by the Municipal Corporation of Delhi against the acquittal of the
warrantor and the other accused. The High Court maintained the acquittal of
Lakshmi Narain but set aside the acquittal of warrantor. That is how the matter
came up to this Court.
We fail to see how this decision can at all
help the respondent in this case. However, reliance was placed on one
observation in the concurring judgment of Alagiriswami, J.
which reads as under:
845 "It would be noticed that while the
charge states that the sample of ghee purchased from Lakshmi Narain was found
to be adulterated, there is no allegation that the ghee sold by the appellant
to Lakshmi Narain was adulterated. While it may be readily conceded that the
common object or common intention or unity of purpose between the manufacturer,
the distributor and the vendor was to sell the article of food sold, it is not
said that it was to sell the adulterated article of food." At a later
stage, it is observed that 'the validity of the charge has to be decided on the
facts put forward as the prosecution case. If it is not established against
anyone of them that the article of food manufacture, distributed or sold by him
was adulterated that person will be acquitted, not because the charge was not
valid or was defective but because there was no proof to substantiate the
charge. But without that allegation there cannot be said to be a unity of
purpose or common object or common intention on the part of all of them who
manufacture, distribute or sell the adulterated food.' It was further observed
that "the manufacture, distribution and sale of adulterated ghee would be
the same transaction if it was found to be adulterated at all the three stages.
Otherwise it only means that they were all same transaction only in the sense
that the common object of all of them is the selling of the ghee." How the
extracted observation in any way helps the respondent passes comprehension.
Firstly, the question of jurisdiction of the court trying the offender was never
raised in that case. And here the respondent was discharged on the ground of
want of jurisdiction. Secondly, the decision proceeded on the facts of the case
as would be evident from the extracted passage which recites the charge. That
aspect does not figure in this case. Let it be made clear that no affidavit was
filed on behalf of the respondent in this Court, nor the complaint was read
over to us. And the case proceeds on the averments not presently disputed.
Therefore in this case we are left with the allegations as found in the
judgment of the High Court and the learned Additional Sessions Judge and it
clearly establishes that where the marketing agent of the manufacturer of
fertiliser which is found to be sub-standard is being prosecuted for marketing
sub-standard fertiliser, the manufacturer can be tried with him and the court
where the substandard fertiliser was marketed will have jurisdiction to try
them both.
846 Therefore the High Court was in error in
setting aside the order of the learned Additional Sessions Judge. This was the
only point in this appeal and as it clearly transpired that the High Court was
in error in interfering with the order of the learned Additional Sessions
Judge, this appeal is allowed and the judgment of the High Court is quashed and
set aside and the judgment of the learned Additional Sessions Judge is
restored.
S.R. Appeal allowed.
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