Ashok Kumar vs State of Haryana

Harmohinder Kaur Sandhu, J.

On November 2, 1991 Sushil Kumar Poonia, a Quality Control Inspector in the office of the Director at Kuruksherta took a sample of PPL/DAP fertilizer from shop No. 52, Purani Mandi, Kaithal, owned by M/s. Shambhu Dyal Ashok Kumar. At the time of taking a sample, the firm had in its stock DAP of PPL and IPL brand though it had no authority to sell this fertilizer. The firm purchased and sold articles in contravention of clause 7 of the Fertilizer (Control) JUDGMENT 1985. The sample taken from the shop of the firm was sent to quality control laboratory at Karnal for analysis. On January 10, 1992 a report pertaining to the analysis of the sample was received from the office of the Deputy Director Agriculture, Kurukshetra wherein the sample was declared substandard. By keeping substandard fertilizer in possession for the purpose of sale. The firm violated the provisions of clause 19(1)(a) of the Fertilizer (Control ) JUDGMENT 1985. The Quality Control Inspector, Kurukshetra made a complaint to the Station House Officer, Police Station City, Kaithal in writing on the basis of which case FIR No. 79 dated 18.3.1992 was registered under section 7 of the Essential Commodities Act. Ashok Kumar petitioner has filed this petition under section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing the above referred First Information Report date 18.3.1992, Annexure P1, and all subsequent proceedings arising therefrom.

It was averred in the petition that the sample was found nonstandard because the Quality Control Inspector did not confirm is the prescribed method of obtaining the sample in accordance with schedule II of the Fertilizer (Control) JUDGMENTThe sample could not have been taken at a place exposed to sun and rain and the same was required to be taken with appropriate sampling instruments. A person taking sample was to adopt the procedure of quartering for making a composite sample of about 1.5 kg. in weight prescribed under clause 5 of the JUDGMENTIt was no where mentioned in the First Information Report as to how the sample was taken and in this way, the mandatory provisions of law were not complied with.

In the return filed by the respondent, it was maintained that the sample was taken by the Quality Control Inspector as prescribed under schedule II of the Fertilizer (Control) JUDGMENT 1985. Sample was taken from different bags and was mixed then it was divided into three parts and each part was sealed in a thick gauged polythene bag. One of the parcels was handed over to the firm and one was sent to the analyst for examination and third sample was kept in the office of Deputy Director Agriculture, as per rules.

I have heard Mr. B.R. Gupta, Advocate, learned counsel for the petitioner and Mr. S.S. Gill, learned Assistant Advocate General, Haryana, for the respondent and have perused the record.

It was argued on behalf of the petitioner that according to schedule II of the JUDGMENT the sample was to be taken in the manner prescribed therein but there are not allegations in the First Information Report concerning the manner in which the sample of DAP fertilizer was taken by Sushil Kumar Poonia. He did not mention quantity of the fertilizer taken by way of sample and the container or type of bag in which the sample of fertilizer was put. It was also not mentioned whether the sample container was put in a cloth bag and was sealed with his seal after putting inside the detailed descriptions as specified in form ''J''. All these particulars were required to be mentioned in the First Information Report and in the absence of the same, it could not be said that ingredients of the offence were spelled out from the allegations made in the First Information Report. In support of his contention, the learned counsel placed reliance on Charan Dass and others v. State of Punjab, 1987(1) Recent Criminal Reports 285 , Gian Chand Luthra v. State of Punjab, 1988(2) Recent Criminal Reports 481 , and Subhash Bansal v. State of Punjab, 1991(3) Recent Criminal Reports 155 . In the latter authority, sample of fertilizer was found to be substandard and thereafter First Information Report was lodged but no mention was made therein regarding the procedure adopted for taking the sample. It was held that his lacuna in the prosecution case could not be filled up by giving details at a later stage and the First Information Report was liable to be quashed on that ground alone.

In the instant case although in the written statement filed by the respondent, it was alleged that the sample was taken as prescribed under schedule II of the Fertilizer (Control) JUDGMENT from different bags and was then mixed and divided into three parts and each part was sealed in a thick gauged polythene bag yet all these averments or quantity of the fertilizer taken by way of sample were not mentioned in the First Information Report. The only allegation made therein is that fertilizer was taken by way of sample and it was sent to Quality Control Laboratory at Karnal for analysis. If only the allegations made in the impugned First Information Report are considered irrespective of their correctness or otherwise still in the absence of specific averments regarding method adopted for taking the sample, no prima facie case is made out against the petitioner. Lacuna in the prosecution case cannot be filled by producing evidence to that effect. No explanation has been given by the State as to why the procedure adopted for taking the sample was not mentioned in the First Information Report. Since the formalities required by law for obtaining a sample were not observed, the First Information Report is liable to be quashed.

For the reasons recorded above, I accept this petition and quash the First Information Report No. 79 dated 18.3.1992, annexure P1, and also the proceedings initiated on its basis against the petitioner