@JUDGMENTTAG-ORDER
S.P. Singh, J.@mdashHeard the learned counsel for the petitioner and the State. In the instant writ application the petitioner prays for quashing the prosecution of Rampur P.S. Case No. 19 of 2007 dated 7.3.2007 u/s 353 of I.P.C, and Section 3 of the Essential Commodities Act wrongly mentioned as Section 3 of Essential Substance Act.
2. The case of prosecution in short is that the petitioner got a licence No. 19/ 98 dated 24th July, 1998 under the provision of Rule 3 of the Seeds (Control) Order, 1983 for selling, exporting and storing of plants issued by the Sub-Divisional Officer (General), Gaya Sadar, as contained in Annexure-2. One Sunil Kumar Singh filed a complaint stating therein that he purchased two Aarika palm plants from Happy Nursery of which the petitioner was proprietor, at the cost of Rs. 80/-. He further alleged that the receipt granted to him did not bear any signature either of the firm proprietor, or its agent. He apprehends that the plants are being sold at higher price. Pursuant to the aforesaid complaint the District Agriculture Officer, Gaya directed an enquiry to be done. The District Horticulture Officer and others conducted enquiry and submitted their report dated 1.2.2007 wherein it has been stated that the petitioner is carrying on the said business beyond the validity period of licence without its renewal which has caused revenue loss to the State Exchequer. They further alleged that in course of inspection stock register, sale register and cash memo could not be produced as petitioner was not present. As such the petitioner has violated the provision u/s 3 of the E.G. Act.
3. On the basis of the aforesaid report Sub-Divisional Agriculture Officer lodged the F.I.R. with Rampur Police Station alleging therein that the petitioner was carrying on business of Nursery, namely, ''Happy Nursery'' without renewal of his licence, which is an offence u/s 19 of the Seeds (Control) Order, 1983. Pursuant to the F.I.R. a case was lodged u/s 353 of the I.P.C. and 3 of Essential Substance Act, 1983.
4. Learned counsel for the petitioner submtits that he does not carry on the business of selling, exporting or importing seeds at any place, rather he carries on business of sale of plants other than seedling tubers, bulbs, rhizomes, roots, cutting, all types of grafts, etc., which are used for gardening purposes. Thus the petitioner does not carry on the business which is to be used for sowing or planting seeds of food crops including edible oil seed, seeds of fruits and vegetables cotton seeds, seeds of cattle fodder, and jute seeds. As such he submits that the petitioner''s business does not come within the purview of Section 2(11) of the Seeds Act, 1966.
5. Learned counsel further submits that licence of the petitioner does not relate to the business of seeds. As such the petitioner does not require to obtain licence or get the earlier granted licence renewed in terms of Clause 3 of the Seeds (Control) Order, 1983.
6. Learned counsel further submits that the business of the petitioner does not attract the definition of Essential Commodities as provided in Section 2(a) of the E.G. Act, 1955. Thus, the petitioner is not liable to be imposed penalties in terms of Section 7 of the E.G. Act. Section 19 of the Seeds Act, 1966 deals with penalty and case of petitioner wiil not come under its purview. Learned counsel submits that even assuming the entire report is taken into account, no offence under the Seeds Act or u/s 353 of the I.P.C. is made out.
7. Learned counsel submits that before prosecuting the petitioner under the Seeds Act, 1966 the authorities are obliged to observe the provision u/s 15 of Seeds Act, 1966. Section 15 enumerates the procedure to be followed by the Seeds Inspector. He submits that he does not deal in seeds and as such the petitioner cannot be prosecuted under any of penal provision of the Seeds Act.
8. Learned counsel for the State submits that the word ''seed'' has a very wide definition as prescribed in Section 2(11) of the Seeds Act, 1966 which includes edible oil, seeds and seeds of fruits and vegetables: (ii) cotton seeds, (iii) seeds of cattle fodder, (iv) Jute seeds and includes seedlings, and tubers, bulbs, rhizomes, roots cuttings, all types of grafs and other vegetatively propagated material of food crops or cattle fodder. Learned counsel for the State by referring to para 10 of the counter affidavit submits that "Since the petitioner is carrying on business of selling the plant (seeds) vegetatively propagated material, she obtained licence for carrying the business from the Sub-Divisional Agriculture Officer, Gaya Sadar on 24.7.1998 bearing Licence No. 19/98. The Licence was valid only upto 31.3.2001 and after the expiry of the said period she was carrying out her business with renewal of the said licence by the competent authority. He further submits that the prosecution has rightly been started against the petitioner. It would be useful to quote the relevant extract of para ten of the counter affidavit.
"It is further stated that under the Seeds Act, 1966 it has been very clearly defined that seed means any of the following classes of seeds used for sowing on planting seeds of food crops including edible seeds and seeds of fruits and vegetables."
9. Heard the learned counsel for the parties in details.
10. It would appear from initial allegation made by Sunil Kr. Singh as well as the case lodged by the informant, respondent No. 5 as well as enquiry report that there is no allegation what so ever that the petitioner committed any offence u/s 353 of the I.P.C.
11. In view of the aforesaid facts, this Court quashes the prosecution instituted against the petitioner u/s 353 of the I.P.C.
12. The second allegation is of carrying on business without having a proper licence and same would be in violation of Seeds (Control) Order, 1983. On the other hand, the plea of the petitioner is that he is not dealing in seeds at all, rather he is carrying out business of storage, sale and purchase of plants. The petitioner would be liable for prosecution under the Seeds Act, 1966 only if she is found doing business in respect to the seeds itself. He further submits that prosecution would be barred u/s 468 of Cr.P.C. as a first offender can be punished for maximum of six months.
13. The main issue in this case is whether the petitioner exclusively deals in plant and his business will not come within purview of definition of seeds u/s 2(11) of Seeds Act. The second issue would be whether mandatory procedure prescribed u/s 15 of Seeds Act has been followed.
14. This Court is in agreement with the learned counsel for the State that by mistake wrong section has been levelled in respect of offence and the same would itself not invalidate prosecution. As the case is still at the stage of investigation, I do not think it appropriate to quash the prosecution at threshold. It would be open to the petitioner to move appropriate forum if she feels aggrieved by filing of final form.
The writ application is disposed of with the observations aforementioned.
