Ashwani Kumar vs State of Punjab and Another

K.P. Bhandari, J.—In this reference the accused have been prosecuted for contravention of the provisions of the Fertilizer Control Order, 1985 (for short the Control Order). They are being prosecuted u/s 7 of the Essential Commodities Act. During the pendency of the trial they have moved an application u/s 482 of the Code of Criminal Procedure (for short the Code for quashing of the prosecution launched against them on the ground that in the present case samples have not been taken by the concerned official in accordance with the provisions of the Order. It is further averred that in the F.I. R it is not stated that samples were obtained in polythene bag in the manner laid down in schedule II of the Order.

This petition came up for hearing before A. P. Chowdhari, J. His Lordship vide order dated 11-3-1991 had referred the matter for constitution of the Larger Bench en the ground that the observations made in the judgments of this Court reported in Jarnail Singh v. State of Punjab 15 (1988) C.L.T. 137 Gian Chand Luthra v. State of Punjab 16 (1989) CLT 55, Hans Raj v. State of Punjab (1989) 95 P. L. R. 25 and Hardev Singh v. State of Punjab 16 (1989) CLT 365. indicate that it should be stated in the F. I. R. that the sample has been taken in accordance with the provisions of the Control Order.

His Lordship doubted about the correctness of the observations made in these judgments that the fact that the sample has been taken in accordance with the Control Order should , be mentioned in the F. I. R. His Lordship has also expressed the view in the reference order that there is no procedure laid down in the Code that State should file reply to the quashing proceedings. If reply is not filed the averments mentioned in this petition for quashing cannot be assumed to be correct.

Counsel for the petitioner submitted that the view expressed in the decisions of this Court that it should .be stated in the F. T R. that the sample has been taken according to the Control Order lays down correct legal position. He further submitted that if it is not stated in the F. I. R. that the sample has been taken in the manner laid down in the Order, the F. I. R. is liable to be quashed

Learned counsel for the State submitted that it is not necessary that it should be stated in the F. I. R. that the sample has been taken in accordance with the Control Order, He submitted that F. I. R. cannot be quashed on this ground He farther submitted hat according to Section 154 of the Code, if a criminal offence has been committed information shall be lodged with the police officer concerned who will note the information. It is not necessary according to Section 154 of the Code to give full details. He relied upon the decision of the Supreme Court in State of U.P. Vs. Ballabh Das and Others, . and submitted that F. I. R. is not meant to be a very detailed document. F.I.R. should contain information regarding commission of the offence. It is not necessary to give full details. Absence of full particular does not render the F. I. R. illegal

We have considered the submissions made at the bar

Section 154 of the Code only provides that information regarding commission of the offence shall be recorded it says that every information relating to the comission of a cognizable offence, if give orally to an officer incharge of a police station, shall be reduced in writing by him or under his direction, and be read over to the informant. Every such information, whether given in writing or reduced to writing small be signed by the person giving it, and the substance thereof shall be entered am book to be kept by such officer in such form as the State Government may prescribe. It has been laid down by the Supreme Court in. Bhopat Singh Kishan Singh Vs. State of Maharashtra, . that it is not necessary to give all details in the F. I. R. which will find place in evidence at, the trial. In Podda Narayana and Ors. v. State of Andhra Pradesh A. I. R. 1975 S. C. 1232. the Supreme Court observed that it is neither customary nor necessary to mention every minute detail in the F. I. R.

It is manifest that F I. R. is not supposed to be a very detailed document As soon as information is received by the Officer In-charge of the Police Station regarding comission of the offence he is required under the law to record the same. Thereafter the case is to be investigated by the Investigating Officer. After the evidence is collected, if a prima-facie case is made out, the accused is sent for trial to the Court.

In Hardev Singh v. State of Punjab, S. S. Grewal, J. expressed the view that if the procedure under which the sample was taken does not find mention in the F. I R. this would be serious lacuna and it cannot be allowed to be filled in lateron.

In Charan Dass and Ors. v. State of Punjab 14 (1987) C.L.T. 19. Pritpal Singh, J. has considered the provisions of Schedule II of the Control Order. His Lordship has laid down in this case that sample must not be taken at a place exposed to weather, it shall be placed in a suitable clean, dry and air tight glass or other suitable container and stored in shade. His Lordship has further held that that the provisions of Schedule It of the Control order are mandatory. His Lordship came to the conclusion that the sample was not taken in the manner laid down in Schedule 11 of the control Order and therefore His Lordship quashed the F. I R. exercising powers u/s 482 of the Code. His Lordship has not expressed the view that it should be stated in the F I. R. that sample has been taken in the manner laid down in the Control Order, ft is true that import of the provisions of Schedule II of the Control Order has been considered by His Lordship and held the provision to be mandatory. If the sample is not. taken in the manner laid down in the Control Order it will affect the evidentiary value of the report This authority does not lay down the principles that it should be stated in the F I. it. that the sample has been taken in the manner laid down in the Control Order.

In Hans Raj and Ors. v. State of Punjab, Ujagar Singh, J on the facts of the case came to the conclusion that although the samples were taken m polythene bag but according to the rules it was necessary to keep the sample in clean, dry and air tight glass or other suitable place. Further according to the Statutory Order the sample should be of 0.5 Kg. The weight of the sample was also not mentioned. In view of the fact that mandatory provisions of the Order were not observed. His Lordship accepted the petition and quashed the F.I.R. But in this case also it has not been laid down by Ujagar Singh, J. that it should be stated in the F.I.R. that the sample has been obtained in the manner as mentioned in the Order.

In ''Sohan Singh and Anr. v. State of Punjab 15 (1988) C. L.T. 139, Ujagar Singh, J. has observed as under:

"I have gone through the requirements of Schedule II of the aforesaid order wherein there is a definite provision that a sample has to be placed in suitable clean, dry and air-tight glass or other suitable containers and stored in shade. It is not disputed by the counsel for the respondent that sample was taken in polythene bag in the present case. As per clause 4(2)(ii) of the said Schedule I< each test sample shall be immediately transferred to a suitable container as described under 1(e) and 1(f), provided with a tight fitting stopper or lid so that the original composition of the fertilizer remains unchanged. The requirements above noted are not satisfied in this case."

In Gian Chand Luthra v. State of Punjab, Ujagar Singh, J. observed as follows:

"The rules require that sample should be more than 0.5 kg and this weight has to be mentioned, but in this case no such weight was noted. The facts noted above are not contradicted by any reply which was to be filed on behalf of the State. The counsel for the petitioner relies upon a judgment of Pritpal Singh, J. (as he then was) in Crl. Misc. No. 5000-M-1986 decided on 15.1.1987 laying down that under clause (4)(2)(ii) of the Schedule II of the Fertilizer Control Order, 1957, sample is required to be placed in suitable clean, dry and airtight glass or other suitable container and stored in shade. As it was not done in that case, it was held that the mandatory provisions of law have been contravened and therefore, the F.I.R. and the proceedings in pursuance thereof were quashed. A similar view was taken by me in amended Crl. Misc. No. 3238-M/1986 Vol. I Recent Criminal Reports 374 titled Sohan Singh and Anr. v. State of Punjab 15 (1988) C.L.T. 139 and Jarnail Singh and Ors. v. State of Punjab (1988) 1 RC.R. 374 16 (1989) C. L.T. 207, respectively."

In this ruling also His Lordship has only stressed the import of the provisions of the Order and it has not been stated by His Lordship that the fact as to the manner of taking sample should be stated in the F.I.R.

In Hardev Singh''s case (supra) S.S. Grewal, J. has expressed the view that the view he is taking is supported by the decision reported in Gian Chand Luthra''s case (supra). It is true that in Gian Chand Luthra''s case (supra) Ujagar Singh, J. considered the scope of the provisions of the Control Order. His Lordship held that the provisions of the Control Order pertaining to the taking and the manner in which the sample should be taken is mandatory. However, His Lordship has not clearly expressed in this case that it should be mentioned in the F.I.R. that the sample has been taken in the manner laid down in the Control Order. The view expressed by S.S. Grewal, J. has been followed by S.D. Bajaj, J. in ''Subhash Bansal v. State of Punjab 16 (1991) C.L.T. 59. In these cases there are observations that question regarding observance of the provisions of the Control Order should be recorded in the F.I.R. These observations have been made without reference to the provisions of Section 154 of the Code. According to Section 154 of the Code F.I.R. should contain information regarding commission of an offence. Full details are not to be mentioned in the F.I.R. F.I.R. is recorded at the threshold of the commission of the offence. The matter is investigated lateron. The evidence is collected during the course of investigation. F.I.R. should only contain a bare information regarding the commission of the offence and whatever information was available with the person lodging the F.I.R. at that stage. For prosecution for violation of the Control Order, the F.I.R. should contain the statement that the accused had contravened the provisions of the control Order and this constitutes an offence u/s 7 of the Essential Commodities Act. Full details regarding the manner in which sample has been taken need not be given in the F.I.R. There is no such requirement u/s 154 of the Code.

In Ballabah Dass''s case (supra) the Supreme Court has laid down that it is manifest that an F.I.R. is not intended to be a very detailed document and is meant to give only the substance regarding commission of cognizable offence. Therefore, the absence of the mention of a lathi would not put the prosecution case out of Court.

The learned counsel for the petitioner relied upon the judgment of the Division Bench of this Court rendered in Criminal Appeal No. 418 DBA of 1983 ''State of Punjab v. Balak Ram 18 (1991) C.L.T. 451, decided on 13.5.1991 and Criminal Appeal No. 487 DBA of 1983 ''State of Punjab v. Ram Lal, Cr. A. No. 487 DBA 1983. Decided on 10.5.1991. In these cases the effect of the non observance of the provisions of the Control Order with regard to the taking of the sample has been considered and they came up for consideration after the full trial. In these cases the provisions of the Control Order regarding taking of the sample have been held to be mandatory. The Division Bench in these cases found after the full trial of the case that the provisions of the Control Order have not been complied with and dismissed the State Appeal and affirmed the judgment and order passed by the Court below acquitting the accused.

In our opinion the observations made in the aforesaid cases in so far as it expresses a view that F.I.R., should specify that sample has been taken in the manner as laid down in the Control Order do not correctly lay down the correct legal position. Prosecution for contravention of the Control Order cannot be vitiated merely because the manner in which the sample has been taken has not been mentioned in the F. I. R. If the sample has not been taken in the manner laid down in the Control Ordar the evidentiary value which should be attached to such report will be judged by the Court while deciding the case. However, the F. I. R. cannot be quashed mercy on this ground It is true that the Code of the Criminal Procedure does nor. contain a provision regarding the procedure which should be followed by the Court in proceedings u/s 482 of the Code. It is well settled, principle of law that even if the law is silent with regard to the procedure to be followed by the Court or Tribunal it is inherent in the jurisdiction of the Court or Tribunal to regulate its own procedure consistent with justice and fair play It is however, the consistent practice of this Court that proceedings u/s 482 of the code rue instituted on a petition filed by the petitioner supported by an affidavit. A notice of the application is given to the State. Normally, State is supposed to file the reply. if the facts stated in the application are not denied, the State will have to satisfy the Court from the record that the grounds taken in the application for quashing are not tenable. For instance. if it is averred in the application u/s 482 of the Code that trial cannot proceed because necessary sanction of the State Government as required in particular case u/s 197 of the Code has not been obtained. Normally the State will have to file reply to such application and take the stand.

There is a consistent view of this Court that the Provisions of the Control Order, in so far as these lay down the procedure for taking sample are mandatory. In our opinion, the view taken in the aforesaid judgments to the extent that these provisions are mandatory Jays down a correct legal position. The learned Single Judge in the reference order has expressed the view that it is not necessary for the State to file any reply to the application u/s 482 of the Code, of the State fails to deny the averments made in the application u/s 482 of the Code, it will not affect the prosecution. If the State does not file reply, it is obligatory on the State to place on record the material which may rebut the stand taken by the petitioner in the application u/s 482. In proceedings u/s 482, the prosecution cannot remain silent If they fail to file reply or place before the Court the proper material, the Court is en titled to assume that the avernments made in the application are correct and on that basis the Court can proceed to decide the matter. It is significant to note that there are many types of proceeding under the Code ; for instance, a habeas corpus petition can be moved. If a person detained comes to the Court with a petition that he is illegally detained the State has to file reply to the application and produce before the Court the relevant material. The State cannot be allowed to state that no procedure is laid down for filing reply and, therefore, they need not file the reply. These example can be multiplied Under the Code of Criminal Procedure, a maintenance petition can be filed by the wife. After notice, the husband respondent has to file a reply, If he does not file reply, then the averments mentioned in the application have to be taken as correct. In these circumstances, we are of the opinion that normally the State should file reply to the application u/s 482 of the Code and in case reply is not filed, it can show front the relevant material that the faets averred in the application for quashing are not correct. In case, the State fails to produce the relevant material, the Court is entitled to draw an inference against the State and quash the proceedings.

As a result of the foregoing discussion, we have come to the following conclusion .''-

(i) It is not necessary to mention in the first information report that the sample has been taken in the manner laid down in the Fertilizer Control Order. On this ground alone, the Court cannot quash the proceedings u/s 482 of the Criminal Procedure Code ;

(ii) The consistent view taken by the Court in the cases discussed above and recently approved by the Division Bench of this Court in Balak Ram''s case (supra) that the provisions of the Fertilizer Control Order, are mandatory lays down the correct legal position ;

(iii) It is open to the accused at the trial to show that the mandatory provisions of the Fertilizer Control Order have not been complied with inasmuch as sample was not taken in the manner as laid down. If it is so that the sample had not been taken in the manner laid down, the prosecution cannot be sustained ;

(iv) If the magistrate fails to determine the question raised by the accused that the sample had not been taken in the manner laid down in the Fertilizer Control Order, it is open to the accused to approach the High Court for quashing of criminal proceedings ;

(v) The proceedings u/s 482 of the Code of Criminal Procedure for quashing are substantive application, The accused is required to plead facts in support of the application and file an affidavit. After notice, normally the State will file reply and take a positive stand, if for any reason, the State has not been able to file reply, it should place before the Court the relevant material to rebut the facts slated in the application u/s 482 of the Code. If it is established before the Court from the material produced that the mandatory provisions of the Fertilizer Control Order have not been complied with, the Court can quash the proceedings u/s 482 of the Code.

As a result of the foregoing discussion, the reference is answered in the above terms. The matter be placed before the learned Single Judge for decision of the main case according to law.