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Judgment
Arunachalam, J.—The Petitioners are A.1 and A.3 in C.C. No. P.R. 18 of 1988 on the file of Judicial Magistrate, No. II, Salem. On a
complaint preferred by the Respondent, who is the Agricultural Officer (Quality Control) Salem, the Petitioners are being prosecuted for having
violated the provisions of the Fertilizer (Control) Order, 1957, punishable u/s 7(1)(2) of the Essential Commodities Act, 1955.
The allegations in the complaint disclose, that samples of Standard Mixture No. 12 and Standard Mixture No. 18, were drawn on 26th
September, 1985 in the presence of the second Petitioner by the Inspecting Agricultural Officer (Quality Control). The samples are stated to have
been drawn as per the rules under Schedule 11A 2A (b) III and 3 (a) and (b) of Fertilizer (Control) Order, 1957 after following scrupulously the
procedure ordained in the said Order. On analysis the sample was found deficient in water soluble phosphate, to an extent of 2.21 The
specification of water soluble phosphate is 3.40 while the actual percentage on analysis was 1.19. The deficiency was more than the permissible
limit. After calling, the first Petitioner to offer an explanation, this prosecution was launched.
The first Petitioner is the company while the 2nd and 3rd Petitioners are Chemist of the Fertilizer Division and Branch Manager of the Fertilizer
Unit.
In this petition filed u/s 482, Code of Criminal Procedure, to call for the records and quash the pending prosecutions not maintainable and an
abuse of process of Court, the only contention urged by Shri N. Natarajan, learned Senior Counsel is that on the date of sampling, namely
26.9.1985, Fertilizer (Control) Order, 1957 was not in force, for, the Fertilizer (Control) Order, 1985 had come into effect on the mid night of
25/26.9.1985, by which the previous Fertilizer (Control) Order, 1957 had been superseded. Elaborating his contention, he argued that under
Clause 39 or the Fertilizer (Control) Order, 1985, the earlier Fertilizer (Control) Order stood repealed. Therefore it was clear that no complaint
could lie with respect to Fertilizer (Control) Order, 1957 effective from 25.9.1985. The procedure described for drawal of samples was totally
different in the 1985 Order. The drawal of sample on 26.9.1985 under the terms and conditions of the old Fertilizer (Control) Order, was totally
without any legal basis and authority of law, in force. Since for punishing any person under the provisions of the Essential Commodities Act, no
mes rea is involved, not following the strict mandate of law, would be fatal to this prosecution.
Mr. I. Subramaniam, learned Additional Public Prosecutor, countering the arguments of Mr. N. Natarajan, contended, that the filing of a
complaint was intended to set the law in motion. It was ultimately for the court to decide on the facts placed before it, the nature of offence, if any,
committed by the Petitioners. Merely because a wrong provision of law has been stated in the complaint, the prosecution cannot be thrown out. In
other words, tracing a wrong source of power does not render invalid the pending prosecution. He submitted that the prescription stipulated
related to water soluble phosphorus. The procedure for analysis either under the old Control Order or under the new Control Order to determine
water soluble phosphorus was almost the same and if there was any prejudice, that could not be canvassed and considered during trial. Pointing
out Clause 39(2) of the Fertilizer (Control) Order, 1985, he contended that directions issued under Clause 10A of the repealed Order would
survive and continue in force till revoked. He then referred to Clause 13 of the Fertilizer (Control) Order, 1985 to urge, that no person shall
manufacture any mixture of Fertilizers unless that mixture conformed to the standards set out in the Notification to be issued, by the Central
Government in the Official Gazette so far as... water soluble phosphoric acid... and... are concerned. If that be so, under Clause 39(2) of the Act,
the Notification issued by the State Government under Clause 10A of the Fertilizer (Control) Order 1957 dated 17.7.1985, would be saved till
revoked under the new Order. There cannot be any interregnum when an offence could be committed without entailing a liability. Since a fresh
legislation had followed the repealed enactment, unless a different intention appeared, the repeal in terms of the clause, shall not affect the
continuation of the prosecution. He referred to Clause 6 of the General Clauses Act also. He argued that on the report of the Analysis, the
Petitioners would be liable even under the Fertilizer (Control) Order 1985, so long as the provisions under Clause 10A of the repealed Order,
holds good.
In reply Mr. N. Natarajan contended that prescription of Standards will not come under, Clause 39(2) of the Fertilizer (Control) Order, 1985,
for the standards varied under the New Act. The offence was also different. Since the prescription was the main factor, it cannot be said that the
old offence will continue. He added that if the Central Government had not prescribed fresh standards, there was a lacuna, more so when the Act
by itself is punishable and no mes rea is contemplated. According to the learned Counsel, the strict letter of the law has to be followed and
therefore prejudice was patent and thus no case has been made out of relegating this issue of prejudice to the trial Court after evidence is brought
on record.
Both the learned Counsel placed reliance on certain decided cases which will be referred to at the relevant context.
The Fertilizer (Control) Order, 1985 came into force on 25th September, 1985, the date of its publication in the Gazette of India. Under Clause
39 of the Fertilizer (Control) Order, 1985, earlier Fertilizer (Control) Order, 1957 stood repealed, except as respects things done or omitted to be
done under the said Order, before the commencement of the New Order. The expression ""as respects things done"" occurring in Clause 39(1) of
the New Order does not mean or include an act done by a person in contravention of the provision of the old Order. What the clause
contemplates and keeps alive is rules, notifications or other official acts done in exercise of the powers conferred by or under the Fertilizer
(Control) Order, 1957. This is made clear by Clause 39(2) of the New Order which reads as hereunder:
Notwithstanding such repeal, an Order made by any authority, which is in force immediately before the commencement of this Order and which is
consistent with this Order, shall continue in force and all appointments made, prices fixed, certificates granted and directions issued under repealed
Order and in force immediately before such commencement shall likewise continue in force and be deemed to be made fixed, granted or issued in
pursuance of this Order till revoked.
Clause 6(c) of the General Clauses Act, 1897 reads as follows:
Effect of repeal
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.
The meaning to the expression ""as respects things done, stated earlier can be found in the decision of the Apex Court in State of Punjab v.
Mohar Singh AIR 1955 SC 84
In the same decision it was observed as hereunder:
Under the law or England, as it stood prior to the Interpretation Act of 1989, the effect of repealing a statute was said to be to obliterate it as
completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced,
prosecuted and concluded while it was an existing law: Vide Craies on Statute Law, 5th edn. page 323,. A repeal therefore without any saving
clause would destroy and proceedings whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already
prosecuted to a final judgment so as to create a vested right. Vide Crawford on Statutory Constitution. PP. 5 99-600. To obviate such results a
practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued
or incurred under the repealed enactment.
Later on, to dispense with the necessity of having to insert a saving clause on each occasion, Section 33(2) was inserted in the Interpretation Act of
1889 which provides that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or
anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any
right, liability and penalty under the repealed Act, as if the Repealing Act had not been passed. Section 6 of the General Clauses Act, as is well
known, is on the same lines as Section 38(2) of the Interpretation Act of England.
The Supreme Court went on to add, that of course, the consequences laid down in Section 6 of the Act (General Clauses Act) will apply only
when a statute or Regulation having the force of a statute is actually repealed. It has no application when a statute, which is a temporary nature
automatically expires by efflux of time.
The repeal therefore, was an effective one which would normally attract the operation of Section 6 of the General Clauses Act.
Whenever there is a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the Section
itself says, a different intention appears. In the case of a simply repeal there is scarcely any room for expression of a contrary opinion. But when the
repeal is followed by fresh legislation on the same subject, we would undoubtedly have to look to the provisions of the new Act, but only for the
purpose of determining whether they indicate a different intention.
The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy
them.
The Supreme Court in T. Barai Vs. Henry Ah Hoe and Another, after having noted its earlier decision, in State of Punjab v. Mohar Singh AIR
1955 SC 84 , observed as follows:
Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act thought it has been specifically
mentioned in the repealing Act or not, will follow, unless, as the section itself says, a different intention appears. In a case of a simple repeal, there
is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the Court
would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different
intention.
On the basis of the binding enunciated law, let us now scrutinise the offence stated to have been committed by the Petitioners, with reference to
the old and the new Fertilizer (Control) Orders. Clause 10A of the old Order, so far relevant to this case reads as follows:
Subject to the other provisions of this Order, no person shall, with effect from such date as may be fixed by the State Government by notification in
the official Gazette in this behalf (hereinafter in this clause referred to as the said date"") carry on the business of selling any mixture of fertilizers,
unless such mixture complies with the standards set out in such notification (in so far as total nitrogen) and water soluble phosphoric acid (P2 05)
and water soluble potash (as K2) is concerned.
The corresponding provision under the New Order is found in Clause 13, the relevant portion of which reads, as extracted below:
Subject to the other provisions of this Order no persons shall manufacture any mixture of fertilizers unless such mixture conforms to the standards
set out in the notification to be issued by the Central Government in the Official Gazette.
A comparative study of Clause 10A of the old Order and Clause 13 of the new Order, makes it apparent, that no person shall manufacture
any mixture of fertilizers unless such mixture conforms to the standards set, be it in the notification issued by the State Government in its Official
Gazette or the notification to be issued by the Central Government in its Official Gazette. There is no dispute, that under Clause 13 of the New
Fertilizer (Control) Order, no notification had been issued by the Central Government in its Official Gazette, prescribing the standard of any
mixture of fertilizers. Does it then mean, that the Legislature provided an interregnum, where the offence could be committed and no prosecution
could be launched? If the avowed object of the Legislation was to protect the interests of the consuming public, with regard to fertilizer, then there
cannot be a period free from liability. In the old as well as the new Order manufacture of fertilizer not the prescribed standard is prohibited. Thus it
is clear, that there was no contrary intention to destroy old rights and liabilities.
Clause 13(2) of the Fertilizer (Control) Order, 1985 will step in and so long as standards of mixtures of fertilizer have not been prescribed by
the Central Government, by notification issued under Clause 13 of the New Order, the standards prescribed under the old Order shall continue.
Both the counsel agree, that under Clause 10A of the Fertilizer (Control) Order, 1957, the State Government had issued a notification dated 17-7-
1985, which prescribes the percentage of water soluble phosphorus that would be permissible in a mixture of fertilisers. There is also no dispute,
that the operation of the notification took effect on the same date or day when it was published in the Tamil nadu Government Gazette. Further,
there is no controversy that prima facie on the report of State Fertiizer Analyst, the deficiency was more than the permitted limit.
Let us now scrutinise the procedure contemplated for the determination of water soluble phosphorus in the old Act and the new Act.
Determination of water soluble Phosphorus
Fertilizer (Control) Order 1957 Fertilizer (Control) Order 19S5.
Procedure: 1. Place 1 gm. sample on 9 cm. filter(a) Procedure (1) Place 1gm sample on 9 cm
paper and wash with small portion of water until filter paper and wash with small portion of water
filtrate measure approximately 250 ml. until filtrate measure approximately 250 ml.
Let each portion pass. through filter before 2. Let each portion pass through filter before
adding more and use suction if washing would adding more and use suction if washing would
not otherwise be complete within 1 hour. not otherwise be complete within 1 hour.
If the filtrate is turbid add 1-2-ml. HNO, 3. If the filtrate is turbid, add 1 = 2 ml. HNO,
dilute 250 ml and mix. dilute to 250 ml. and mix.
Pipette into 500 ml. even mayer flask aliquot 4. Pipette into 500 ml. Erlenmeyer flash aliquot
containing not more than 25 mg. P2 05 containing more than 25 mg.
Dilute if necessary to 50 ml. Dilute if necessary to 50 ml.
Add 10 ml. HN03) (1 plus 1) and boil gently 6. Add 10 ml. HNO, (1 plus 1) and boil gently
for 10 minutes, Cool and dilute to 100 ml and for 10 100 ml. and proceed as 4(ii)(b)(2)(B)
proceed as 4.2(b).
Reference"" Methods of Analysis A.O.A.C.,
1965)
A study of the tabular statement reveals, that procedure contemplated in Steps 1, 2, 3, 5, and 6 are almost the same. The only difference is under
step No. 4. Under the Old Control Order, pipetting should be in flask containing not more than 25 ml. P2 05 whereas under the new Control
Order such pipetting should be in a flask containing more than 25 mg. p2 05. The difference is either more than 25 mg of P2 05 or not more than
25 mg of P2 05. The report of the Analysis under the column ''remarks'' reads that the sample was received in good condition and on analysis had
been found to be non-standard, for water soluble phosphorus only. This remark denotes, that the Analyst did not find any difficulty in analysing the
sample to determine water soluble phosphorus and therefore, if on step 4 alone, the Petitioners claim prejudice, it will have to be canvassed and
considered by the trial Court, after evidence is brought on record. I entirely agree with the learned Additional Public Prosecutor that in the exercise
of inherent powers, this question cannot be gone into.
Even with regard to the sampling procedure under the old and new orders except the quantity required to be samples, no major deviation is
discernible. Under the old Order, the samples had to be placed in a suitable, clean, dry and air-tight glass or other suitable containers (See Sch. II
1(e), while under the new Order the sample should be in a suitable, clean dry and air tight glass or screwed hard polythene bottle of about 400 gm
capacity or in a thick gauged polythene bag. This should be put in a cloth bag which may be sealed with the Inspector''s seal after putting inside the
detailed description as specified in Form ''J''. Identifiable details may also be put on the cloth bag like sample No. /Code No. or any other details
which enables its identification. The other Clauses 1(a) to (d) and (f) are the same in both the Orders. In the old Order 1(g) of Schedule II has
been included.
As far as number of containers/packages to be selected for sampling, the tabular statement down below would make the position clear.
SAMPLING.
Fertilizer (Control) Order 1957 Fertilizer (Control) Order 1985
Selection of bags for sampling. Selection of bags for sampling
No. of containers/packages to be selected for
sampling.
Lot size No. of containers to be Lot size(No. of bags) No. of bags to be
selected. selected for sampling
(N) (n) (N) (n)
2-8 2 less than 1
9-27 3 10-100 2
28-64 4 100-200 3
65-100 5 200-400 4
101-300 6 400-600 5
301-500 7 600-800 6
501-800 8 800-1000 7
801-1300 9 1000-1300 8
1301-and above 10 1300-1600 9
1600-2000 10
2) Composite sample to be obtained in 2 kgs. Composite sample to be obtained in 1.5 kgs.
It is evident that under the old Control Order composite samples had to be obtained in 2 kgs, while under the new Order it had to be obtained in
1.5.kgs. The object of the procedure prescribed under the old and new Control Orders is that the sampling should be done in accordance with the
procedure, to safeguard the interests of the manufacturer or sellers who are sought to be made liable for violations. As far as the prescribed
standard is concerned, the definition is available under Clause 2(k) of the old Order and Clause 2(q) of the New Order. It is settled law, that the
quantity to be sampled for the purpose of analysis, can only be directory and not mandatory so long as the Analyst had no hindrance whatsoever,
on the sample forwarded, to give out the results of analysis. (Municipal Corporation of Delhi v. New Kwality Supply House 1984 L W (Crl.) 285
That the expression "" directions issued "" under the repealed Order, under Clause 39(2) of the Fertilizer (Control) Order, 1985, would include
the notification of the State Government dated 17th July, 1985 can admit of no doubt. Section 2(cc) of the Essential Commodities Act defines
''Order'' to include a direction issued thereunder. Till the notification dated 17.7.1985, issued Clause 10A of the Fertilizer (Control) Order, 1957,
is revoked and fresh standards are prescribed under Clause 13 of the Fertilizer (Control) Order, 1985, the former standard would hold the field
and continue to operate.
While interpreting the provisions of a Statute, the purpose and object of the enactment should be borne in mind and courts should endeavour
to avoid any unjust or absurd results. In other words, courts must strive to interpret the statute as to protect and advance the object and purpose
of the enactment. Taking into consideration the object and purpose of the Essential Commodities Act and the Control Orders issued thereunder
inclusive of the in built provision of a saving clause, it certainly could not nave been the intention of the legislature to leave a period of vacuum,
when manufactures, vendors or distributors as the case may be, can afford to deal with sub-standard fertilizers, without attracting the penal
Sections of the Essential Commodities Act, relevant provisions of the Control Orders and/or notifications issued thereunder.
A reference at this stage to the decision of the Supreme Court in The The State of Bihar Vs. Hiralal Kejriwal and Another, will be relevant. In
similar circumstances, construing Section 16(2) of the Essential Commodities Act, it was stated as follows:
The second part appears to have been enacted for the purpose of avoiding this difficulty or, at any rate, to dispel the ambiguity. Under the section
both the Order and the Acts previously done under the Order are saved. If so, it follows that the Order was saved and the prosecution authorised
by the Order could legitimately be launched after the Ordinance came into force.
In Jayalakshmi Financers v. Dy. Commissioner of income tax 1990 L W (Cri), 494 , I had occasion to consider Sections 6 and 6A of the General
Clauses Act, with reference to ''repeal'' and ''effect of introduction of Section 271D of the income tax Act, while omitting Section 276DD, with
effect from the same date. I held as hereunder:
Section 6 of the General Clauses Act which deals with the effects of repeal reads ""Where this Act or any Central Act or Regulation made after the
commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeals
mentioned in sub-divisions (a) to (e) thereof"". Section 6-A takes in it fold ""repeal of Act making textual amendment in the Act or Regulation"". In
other words, it concerns itself regarding omissions, insertions or substitution. Unless a different intention appears, the repeal in terms of this Section
shall not affect the continuation of any such amendment made by the enactment repealed and in operation at the time of such repeal."" From the
insertion of the new sections while omitting the earlier Sections referred to above in the income tax Act, it is not possible to gather a contrary
intention that the Legislature desired that prosecutions which were permissible u/s 276-DD of the Act and already initiated before insertion of the
new section were to be erased or obliterated .
As already stated, I am unable to find a different intention in the Fertilizer (Control) Order 1985, to obliterate, destroy or ease the offence of
manufacture of sub standard fertilizer.
Mr. N. Natarajan, referred to the judgment of S. Natarajan, J. (as he then was) in Devaraja Naidu v. Inspector of Police Food Cell CID 1978
Law Weekly Criminal, 132 wherein in respect of a prosecution for contravention of the provisions of the Tamil Nadu Paddy and Rice (Regulations
and Disposal of Stocks) Order, 1968 read with Sections 3 and 7 of the Essential Commodities Act, 1955) on the ground that the Petitioner therein
had stored paddy and rice without obtaining a licence therefor, it was held that the prosecution was not maintainable under 1968 Order, since it
had been superseded by the 1974 Order under Clause 28(1) stating that 1968 Order was thereby repealed. The learned Judge construing the
words ''anything done or any action taken "" occurring in Clause 28(2) observed, that they can have reference only to proceedings already instituted
before 1968 Order was repealed and could have no reference to the proceedings instituted or charges sheet laid after that Order had been
repealed. It was further held that 1974 Order was undoubtedly neither a Central Act nor a Regulation for it had been framed by virtue of powers
delegated to the State Government by the Central Government under the Essential Commodities Act and consequentially the General Clauses Act
would not apply to the Order passed by the Tamil Nadu Government. The same view was taken by me in Kalimuthu v. State (Sic) with reference
to the 1974 and 1984 Orders Those decisions do not help the Petitioners since the context is totally different. The consideration in both those
cases related to the meaning to be attributed to the words ''anything done or any action taken''. The particularity of facts in those cases, also did
govern the decisions. We are now concerned with a totally different proposition and the scope of Clause 39(2) of the Fertilizer (Control) Order
1985, vis-a-vis the previous Clause 10A of the old Order and Clause 13 of the New Order. I am unable to agree with Mr. N. Natarajan that
Section 6(c) of the General Clauses Act read with Clause 39(2) of the Fertilizer (Control) Order, 1985, would not govern this prosecution. It is
not as though that there is a presumption of a pending old offence, but one of a realistic and practical view, of a sub-standard fertilizer
manufactured and kept for distribution. The offence is the same and that is non-conformation to the standard prescribed. There is no lacuna as
contended by the learned Counsel for, the Notification issued under Clause 10A dated 17.7.1985, shall continue to operate till revoked.
Merely because the Respondent has stated in his complaint, that he had strictly complied with the provisions of the Fertilizer (Control) Order,
1957, and the prosecution as such had been launched under the said Order, they cannot affect the validity of this prosecution. The wrong label
given by the Respondent does not affect the power of the Court to take cognizance of the offence committed, which as rightly contended by the
Additional Public Prosecutor would attract the provisions of the Fertilizer (Control) Order 1985.
If the Petitioners are aggrieved due to change in procedure in the process of sampling or analysis or the competence of the analyst, it will be
open to them to canvass the resultant prejudice if any, for consideration by the trial court, after evidence is brought an record. Such an exercise
cannot be undertaken in the exercise of inherent powers. No ground has been made out to quash the pending prosecution. This petition shall stand
dismissed.
Before parting with this case, I am constrained to observe, that the Law Enforcing Agency had not made itself aware of the ushering in of the
new Fertilizer (Control) Order on 25/26.9.1985. The officers in charge of enforcing the provisions of the Fertilizer (Control) Order, direly need
education of the change of their duties. If only they had made themselves aware and proficient of the contents of the Fertilizer (Control) Order,
1985 the defects pointed out by the learned Counsel for the Petitioners, would not at all have arisen. The authorities must also be aware, that no
man can be prosecuted or punished under a law which came into existence subsequent to the commission of the offence. However, as pointed out
by the Supreme Court in State of Punjab v. Mohar Singh 1978 L W Cri, 132 this by itself might not raise any serious difficulty, for the Court
would have ample authority to alter the conviction of the accused under the Act to one under the Ordinance which contained the identical
provision, provided he can be prosecuted and punished under the Ordinance after it was repealed.