A.K. Shahu vs State of Punjab

H.S. Bhalla, J.—This judgment of mine shall dispose of above mentioned two appeals bearing No. CRA-1232-SB of 1999 filed by A.K. Shahu and No. CRA-1242-SB of 1999 filed by Amar Nath, against judgment of conviction and order of sentence dated 15.12.1999 passed by the Special Judge, Mansa by virtue of which both the appellants A.K. Shahu and Amar Nath were convicted and sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs. 4000/- each and in default of payment to fine, to further undergo rigorous imprisonment for one month each, for the offence punishable u/s 7 of the Essential Commodities Act, 1955.

After hearing the learned counsel for the parties and for the reasons to be recorded by me hereinafter, I am of the considered view that both these appeals are liable to be accepted.

The other facts required to be noticed for the disposal of both these appeals are that appellant Amar Nath, proprietor of M/s Borawal Trading Company and appellant A.K. Sahu, then Senior Manager (M) of Pardeep Phosphate Limited were prosecuted on the allegations that on 21.7.1992, Gurmail Singh, Fertilizer Inspector, Budhlada took a sample bf DAP fertilizer from the premises of M/s Borawal Trading Co any, Budhlada which was sent to the Fertilizer Quality Control Laboratory, Ludhiana and on analysis the same was found to be nonstandard as variation was beyond permissible tolerance limits. Amar Nath proprietor of M/s Borawal Trading Company is a dealer holding registration certificate issued by the Chief Agricultural Officer, Bathinda for carrying on the business of fertilizer and M/s Pardeep Phosphate Limited, Orissa is the manufacturing company of DAP fertilizer while appellant A.K. Sahu being the Senior Manager of the said Company was incharge and responsible to the said company for the conduct of its business. After failure of the sample, a complaint was, lodged with the police on the basis of which a criminal case was registered against the present appellants u/s 7 of the Act.

A notice u/s 7 of the Act was served upon the appellants to which they did not plead guilty and claimed trial.

The prosecution in support of its case examined as many as 8 witnesses. PW1 Gurmail Singh, Fertilizer Inspector deposed about the manner of taking of the sample of DAP fertilizer while Jagtar Singh, Agricultural Development Officer, who was associated with Gurmail Singh (PW1) at the time of drawing the sample of DAP fertilizer, deposed in a similar fashion. Parshotam Dass who is a whole sale dealer in DAP fertilizer manufactured by Pardeep Phosphate Limited was examined as PW3 and deposed that on 14.7.1992, he supplied 100 bags of DAP (PPL) and 50 bags of super phosphate to M/s Borawal Trading Company, Budhlada vide bill Ex.PF. PW4 Bhupinder Singh, Chief Agricultural Officer proved the complaint Ex.PL on the basis of which a criminal case was registered against the appellants.

In their statements u/s 313 Code of Criminal Procedure, accused appellants denied all the allegations and pleaded their false implication. Appellant A.K. Sahu took the stand that he was not the person responsible to M/s Pardeep Phosphate Limited, Orissa for the conduct of its business and the company did not supply the fertilizer either to Borawal Trading Company or Purshotam Dass dealer/proprietor of M/s Jagdambe Khad Bhandar. He also took the stand that the sample was not properly taken or tested as a result of which the deficiency occurred. In defence, they tendered in evidence Ex. DF copy of the judgment of the High Court.

7., Learned counsel for the appellants vehemently argued that during the process of taking out the sample; the Fertilizer Inspector Gurmail Singh PW1 failed to adopt the procedure given in para 5 of Schedule II of the Fertilizer Control Order, 1985 which deals with the preparation of the composite sample. As per this Rule, the mandatory requirement of law, as envisaged in the order was that Gurmail Singh PW1 was required to spread the composite on levelled clean hard surface and to flatten it out and divide into four equal parts and then to mix the two remaining parts together to form a cone, flatten out the cone and repeat the operation of quartering till a composite sample of about 1.5 kg weight is obtained but in the present case, the sample was taken from five different bags randomly. It is categorically admitted by PW1 Gurmail Singh that the sample of DAP fertilizer was taken from the first bag of fertilizer and thereafter from the 9" bag, then from 17th bag and then from 26th and then from 331d bag and about 850 grams fertilizer was taken out from each of the bag as sample which was then spread on a polythene bag and after mixing the same with hand, the same was separated into four parts and out of those four parts, two were selected and then after mixing the two parts, the same was then divided into three parts of the sample. The trial court could not swallow the illegality committed by the Fertilizer Inspector and hold that the same was taken in accordance with the procedure. To my mind, the sample was not drawn by the Fertilizer Inspector in accordance with the procedure as contained in para 5 of Schedule of the Fertilizer Control Order, 1985.

Even otherwise, from the scrutiny of the evidence, it is proved on the record that the sample was not mixed homogeneously so as to mix remaining parts together to form a cone and also flatten out-the cone and repeat the operation of quartering till a composite sample of about 1.5 kgs weight is obtained. The sample was not put in air tight glass container, rather it was put in a polythene bag. No plausible explanation for deviating from the standard procedure as prescribed in 1985 Order has been made by the prosecution. Therefore the learned trial court fell in error in ignoring the aforesaid illegalities committed by the Fertilizer Inspector. A similar view was taken in Gian Chand Luthra v. State of Punjab 1988 (2) RCR (Crl) 481; State of Punjab v. Karam Chand Rajinder Kumar and Ors. 1992 (3) RCR (Crl) 365; State of Punjab v. Ashok Kumar and Ors. 2003 (4) RCR (Crl) 639; State of Punjab v. Sohan Lal 2003 (2) RCR (Crl) 609; and Amrit Lal v. State of Punjab 1989 (2) RCR (Crl) 711. The present case is also on the similar footings. It is well settled law that if a statute enacts something in Act, then it shall be done in such a manner and not in any other manner and if those requirements are neglected, it will invalidate the whole proceedings.

As a consequence of above discussion, I accept both the appeals, set aside the impugned judgment and acquit both the appellants of the charge framed against them. Their bail bonds and surety bonds are discharged. The fine, if deposited by them, be refunded.