K. Babu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, ``` ## **`1945`** ## **`CRL.MC NO. 7031 OF 2023`** ``` AGAINST THE ORDER/JUDGMENT CC 804/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYOLI ``` ## **`PETITIONER/S:`** ``` K. BABU AGED 53 YEARS S/O. GOPALAN, THAZHEPARAMBIL HOUSE, CHERUVANNUR POST (VIA) MEPPAYUR, KOZHIKODE DISTRICT, PIN - 673524 BY ADVS. NIRMAL.S VEENA HARI K. REMIYA RAMACHANDRAN KEERTHY JOHNSON ROSE MARIYAT JOSE POOJA JOSE ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA (STATION HOUSE OFFICER, MEPPAYUR POLICE STATION, KOZHIKODE.), PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` HRITWICK CS PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -2- Crl.M.C No. 7031 of 2023 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C No. 7031 of 2023 ============================================================= Dated this the 27[th] day of September, 2023 ## **ORDER** The petitioner herein is the 3[rd] accused in CC No.804 of 2014 on the file of the Judicial First Class Magistrate Court, Payyoli, arising from Crime No.274 of 2012 of Meppayur Police Station. The offences alleged against the petitioner are under Section 3(2)(d) read with Section 7(1)(ii) of the Essential Commodities Act, 1955 and Order 25 of the Fertilizer (Control) Order. 1985. 2. This petition is filed to quash the proceedings on the ground that the offences alleged will not be attracted and the continuous of this case will only be an abuse of process. It is also submitted that the co-accused already approached this Court and as per Annexure A3 order this Court quashed the proceedings. Hence, this Crl.M.C is filed. 3. Heard counsel for the petitioner and the public prosecutor. -3- Crl.M.C No. 7031 of 2023 4. After hearing the counsel for the petitioner and the public prosecutor, and also going through Annexure A3 order, the petitioner is also entitled similar order. It will be better to extract the relevant portion of Annexure A3 order. “5. Chapter VII of Fertiliser (Control) Order 1985 deals with enforcement authorities. The said provisions read thus: ## VII. Enforcement authorities 26. Appointment of registering authority The State Government may, by notification in the Official Gazette, appoint such number of persons, as it thinks necessary, to be registering authorities for the purpose of this Order and may, in any such notification define the limits of local area within which each such registering authority shall exercise his jurisdiction 26A. Notified Authority- The State Government may, by notification in the Official Gazette, appoint such number of persons, as it thinks necessary, to be Notified Authorities for the purpose of this Order and define the local limits within which each such Notified Authority shall exercise his jurisdiction ## 27.Appointment of Inspectors -4- Crl.M.C No. 7031 of 2023 The State Government, or the Central Government may, by notification in the Official Gazette appoint such number of persons, as it thinks necessary, to be inspectors of fertilizers for the purpose of this Order, and may, in any such notification, define the limits of local area within which each such inspector shall exercise his jurisdictions. 27A. Qualifications for appointment of fertiliser Inspectors No person shall be eligible for appointment as Fertiliser Inspector under this Order unless he possesses the following qualifications, namely. (1) Graduate In agriculture or science with chemistry as one of the subjects, from a recognised university; and (2) Training or experience in the quality control of fertilisers and working in the State or Central Government Department of Agriculture. 28. Powers of Inspectors (1) An inspector may, with a view to securing compliance with this Order;- (a) require any manufacturer, importer, pool handling agency, wholesale dealer or retail dealer to give any information in his possession with respect to the manufacture, storage and disposal of any fertilizer manufactured or, in any manner handled by him -5- Crl.M.C No. 7031 of 2023 (b) draw samples of any fertiliser in accordance with the procedure of drawl of samples laid down in Schedule 11. Provided that the inspector shall prepare the sampling details in duplicate in Form J, and hand over one copy of the same to the dealer or his representative from whom the sample has been drawn: (ba) draw samples of any biofertilisers in accordance with the procedure of drawl of samples laid down in schedule III (bb) draw samples of any organic fertilisers in accordance with the procedure of drawl of samples laid down in schedule IV. (bc) draw samples of any non-edible de-oiled cake fertiliser in accordance with the procedure of drawl of samples laid down in Schedule V. (c) enter upon, and search any premises where any fertiliser is manufactured/Imported or stored or exhibited for sale, if he has reason to believe that any fertiliser has been or is being manufactured/imported, sold, offered for sale, stored, exhibited for sale or distributed contrary to the provisions of this Order, (d) seize or detain any fertiliser in respect of which he has reason to believe that a contravention of this Order has been or is being or is (attempted] to be committed: -6- Crl.M.C No. 7031 of 2023 (e) seize any books of accounts or documents relating to manufacture, storage or sale of fertilisers, etc. in respect of which he has reason to believe that any contravention of this Order has been or is being or is about to be committed: Provided that the Inspector shall give a receipt for such fertilisers or books of accounts or documents so seized to the person from whom the same have been seized: Provided further that the books of accounts or documents so seized shall be returned to the person from they were seized after copies thereof or extracts there from as certified by such person, have been taken. (2) Subject to the proviso to paragraphs (d) and (e) of sub-clause (1), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this clause. Provided also that the inspector shall give the stop sale notice in writing to the person whose stocks have been detained and initiate appropriate action as per the provisions of this order within a period of twenty one days. If no action has been initiated by the inspector within the said period of twenty one days from the date of issue of the said notice, the notice of stop sale shall be deemed to have been revoked. -7- Crl.M.C No. 7031 of 2023 (3) Where any fertiliser is seized by an inspector under this clause, he shall forthwith report the fact of such seizure to the collector whereupon the provisions of actions 6A, 6B, 6C, 6D and 6E of the Act shall apply to the custody, disposal and confiscation of such fertilisers. (4) Every person, if so required by an inspector, shall be bound to afford all necessary facilities to him for the purpose of enabling him to exercise his powers under sub-clause (1) 6. As evident from Section 28 of the Act, only a person who meets the qualifications prescribed in Section 27A can be appointed as an inspector. The inspector so appointed is authorized to: ● Ask for any information related to the manufacture, storage, and disposal of fertilizers from manufacturers, importers, agencies, and dealers. ● Draw samples according to the procedures laid out in the respective Schedules to verify the quality and compliance of the products. ● Enter and search premises where any fertilizer is manufactured, imported, stored, or exhibited for sale. ● Seize fertilizers and documents, strictly complying with the procedure prescribed under the Code of Criminal Procedure, 1973, for search and seizure. - Subsequent actions regarding custody, disposal, and confiscation follow the specified sections of the Act. -8- Crl.M.C No. 7031 of 2023 7. The Act also provides that any person requested by the Inspector must provide all necessary facilities to enable the Inspector to exercise his powers. 8. In other words, only an Inspector who has the requisite qualifications and has been appointed as per the provisions is authorized to carry out the above functions. The Inspector is required to have a graduate degree in Agriculture or Science with Chemistry, and experience in the quality control of fertilizers, working in the State or Central Government Department of Agriculture. In the case on hand, the search and seizure were effected by a Sub Inspector of Police. Since the Sub Inspector of Police did not have the requisite qualifications to be appointed as an Inspector under the Act, the search and seizure cannot be stated to be legal. 9. I find that the Hon'ble Supreme Court in Avatar Singh and another v. State of Punjab had occasion to consider identical issues concerning the seizures effected pursuant to the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988. It was held in paragraphs 14 to 16 of the judgment as under: 14. It nowhere prescribes that a Sub-Inspector of the Police can take action. No doubt, the aforesaid Clause provides that in addition to the specified officers, the persons authorised by the Central or State Government may take action under the Order. However, nothing has been placed on record to support the argument that the Sub- Inspector of the Police was authorised to take action under the aforesaid Order. -9- Crl.M.C No. 7031 of 2023 15. It is a settled law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods are necessarily forbidden. Reference can be made to Dharani Sugars and Chemicals Ltd. Vs. Union of India and Ors. reported in (2019) 5 SCC 480. 16. In the absence of the authority and power with the Sub-Inspector to take action as per the Order. The proceedings initiated by him will be totally unauthorised and have to be struck down. In view of the discussion above, it has to be held that the action of the Sub Inspector of Police in effecting the seizure and the consequent registration of the Crime is illegal, and the same is liable to be struck down. Resultantly, the petitioner is entitled to succeed.” 5. In the light of the above order, I think the prosecution against the petitioner will also not stand. Therefore, this Crl.M.C is allowed. All further proceedings as against the petitioners in CC No.804 of 2014 on the file of the Judicial First Class Magistrate Court, Payyoli, arising from Crime No.274 of 2012 of Meppayur Police Station, are quashed. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das -10- Crl.M.C No. 7031 of 2023 ## **`APPENDIX OF CRL.MC 7031/2023`** ## `PETITIONER ANNEXURES` ``` Annexure A1CERTIFIED COPY OF THE FINAL REPORT NO. 42/2014 DATED 31/01/2014 IN CRIME NO. 274/2012 OF MEPPAYUR POLICE STATION, KOZHIKODE RURAL WHICH IS NOW PENDING AS C.C. 804/2014 BEFORE THE JFCM, PAYYOLI Annexure A2CERTIFIED COPY OF THE FIRST INFORMATION REPORT NO. 274/2012 DATED 30/11/2012 OF MEPPAYUR POLICE STATION, KOZHIKODE RURAL Annexure A3TRUE COPY OF THE JUDGMENT DATED 13/06/2023 OF THIS HON'BLE COURT IN CRL.MC. NO. 3637/2016 ```