Jarnail Singh and ors. vs State of Punjab

Ujagar Singh, J.

The petitioners seek quashing of the entire proceedings and the impugned order dated 20.3.1986, Annexure P1, directing the framing of the charge by the Additional Chief Judicial Magistrate, Sangrur, exercising powers as a Special Judge.

The facts leading to the present petition are that First Information Report No. 8 dated 12.1.1983 was registered in Police Station Longowal, District Sangrur against the petitioners. The contents of the First Information Report show that a sample was drawn by Shri Tejwant singh, Fertilizer Inspector on 5.8.1980 from the Depot of M/s Jarnail Singh Baldev Krishan Cheema, strictly according to Schedule II of the Fertilizer Control JUDGMENT 1957. The sample was deposited in the office of the concerned authority by Shri Tejwant Singh and was sent to the Fertilizer Testing Laboratory, ludhiana for analysis through Shri Tarlochan singh, DAO, Dhuri. The sample was analysed and the report shows as under:

Sample No. Name of Fertilizer Specifications according to Sch. I of FCO,1957 Actual Chemical Analysis Variation permissible Tolerance limits for variation

171 Urea Total nitrogen 46% 43.5 2.5 0.2

Whereas the standard prescribed in Schedule I attached to the order is as follows :

Name of Fertilizer Specifications of fertilizers Permissible limit or variation

Area Total nitrogen

46% 46% 0.2

Therefore, the sample was found to be substandard and not according to the specifications prescribed in the said Schedule and, therefore, offence under Section 12A of the Essential Commodities Act, read with clause 13.1(a), 13.1(b) III and vii of the said JUDGMENT was made out and it was punishable as such. The First Information Report was lodged by the Chief Agricultural Officer, Sangrur against the petitioners, as well as against M/s National Fertilizers Limited, manufacturers. The petitioners were arrested and one Shri Ravinder Pal singh, Production Manager of the National Fertilizers Limited was also arrested during the investigation. After the investigation, chargesheet was submitted and the Special Judge has framed charges against the petitioners, as also against Ravinder Pal Singh, vide order dated 20.3.1986, Annexure P1. The prosecution examined PW 1 Head Constable Surjit Singh and PW 2 Tejwant Singh, Fertilizer Inspector and the case was posted for adducing further prosecution evidence for 14.10.1986 Tejwant Singh, Fertilizer Inspector (PW 2) has deposed as under :

"On 5.8.1980 I was posted as Fertilizer Inspector at Sangrur. On that day I alongwith Bant Singh Compost Inspector and Gulab Singh Beldar, went to Cheema and visited the premises of M/s Jarnail Singh, Baldev Krishan Fertilizer Dealer Cheema Shri Jail Singh Salesman accused now present in the Court was present at the premises of the said firm at that time I checked the stock relating to Urea fertilizer. There where 44 bags of Urea fertilizer of 50 kgs. which were machine stitched. I took sample with my Parkhi of urea fertilizer from four bags lying there. The Parkhi was dry and clean. I put the sample so taken on a dry and clean paper after putting the paper on table. The sample so taken from all bags was mixed with my hands and I took out that mixture 500 gms. each in three parts."

The quashing is sought on the following grounds:

(i) 44 bags of Urea fertilizer were machinestitched, and contained 50 kg. each. These bags had been received from National Fertilizers Limited, Bhatinda and the petitioners had no knowledge about Urea fertilizer;

(ii) Section 7 of the Essential Commodities Act involves only guilty mind as an ingredient of the offence and therefore the doctrine of mens rea applies to such offences;

(iii) Sample of the fertilizer was sub standard and not that it was adulterated and therefore, it was the sole responsibility of the manufacturer to explain and account for the fertilizer being substandard. It is none of the faults of the petitionerdealer who purchased the fertilizer bags from the manufacturer against a bill which has been duly taken into possession by the prosecution during the investigation; and

(iv) Charge Annexure P1 framed against the petitioners is nothing but sheerly an abuse of the process of the Court and deserves to be quashed.

The argument raised by the learned counsel for the petitioner is that admittedly, the sample was not put in a suitable clean, dry and airtight glass or other suitable container. Merely putting the sample in 3 polythene bags was not sufficient and did not conform to the mandatory rules. Learned counsel for the petitioner has placed reliance on Charan Dass & ors. v. The State of Punjab, 1987(1) Recent Criminal Reports 285 : 1987 CC Cases 89 , decided by Pritpal Singh, J. (as he then was).

I have gone through the requirements of Schedule II of the aforesaid JUDGMENT wherein there is a definite provision that a sample has to be placed in a suitable clean, dry and airtight glass or other suitable containers and stored in shade. It is not disputed by the counsel for the respondents that samples were taken in polythene bags in the present case. As per Clause 4 (2)(ii) of the said Schedule II, 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 to the fertilizer remains unchanged. In the present case, the sample was taken on 5.8.1980 and the First Information Report was registered only vide letter dated 12.7.1982. Testimony of Tejwant Singh (PW 2) does not satisfy the requirements of clause 1(e) and 1(f) Schedule II.

After considering the arguments and the facts of the case, this Criminal miscellaneous is accepted and the First Information Report and the proceedings based thereon are quashed.