Pitambar Lal & Ors. vs State of Punjab

K.P.S. Sandhu, J.—Pitamber Lal, Tarsem Lal, Sohan Lal and Prem Nath appellants stand convicted and sentenced as under by the Presiding Officer Special Court, Hoshiarpur, vide his order dated 6th April, 1984 :

Pitamber Lal

Under Section 7 of the Essential Commodities Act till the rising of the Court and a fine of Rs. 1,000/ or, in default, two months rigorous imprisonment.

Tarsem Lal, Sohan Lal and Prem Nath

Under Section 7 of the Essential Commodities Act, till the rising of the Court and a fine of Rs. 500/ each; in default to one month''s rigorous imprisonment each.

Three appellants namely Tarsem Lal, Sohan Lal and Prem Nath are the partners of the firm known by the name and style of Messrs. Tarsem Lal Prem Nath, Fertilizer Dealers of Saila Khurd, while Pitambar Lal appellant was working as a Plant Superintendent with Siri Ram Chemicals and Fertilizer Industries, New Delhi. Messrs Tarsem Lal Prem Nath were the licenceholders for sale of fertilizers and used to get the stocks from Messrs. Shri Ram Chemicals and Fertilizers Industries and sell it to various consumers. PW1 Jashbir Singh was posted as Agriculture Inspector and was vested with powers of Fertilizer Inspector under clauses 14A and 19 of the Fertilizer (Control) JUDGMENT 1957. On 4th September, 1980; he went to the premises of Messrs. Tarsem Lal Prem Nath abovesaid. Tarsem Lal appellant was found present thereon whom the Fertilizers Inspector served notice Ex.PB and drew about 200 Grams of sample each from nine bags of the fertilizer at random after interval of ninety five bags. The sample was thoroughly mixed on a piece of clean paper by him and thereafter divided into three equal parts. The sample was put in polythene bags and then reduced into airtight parcels, tied with a thread and sealed with the seal bearing letters `FIY14" of the Inspector and the seal of the appellant bearing initials "DCM". One part of the sample was handed over to Tarsem Lal appellant by the Inspector against receipt Ex.PD while the other two were retained by the Inspector. The Inspector sent one sample to the Fertilizer Testing Laboratory Department of Agriculture, Punjab Agriculture University, Ludhiana for analysis. According to the chemical analysis report Ex.PF of the said authority the sample was found to have water soluble phosphate 13.63% against the prescribed 16.0%. Thereafter, the Chief Agriculture Officer submitted report Ex.PE to the Senior Superintendent of Police, Hoshiarpur, for the registration of a case and on the basis of report Ex.PE, formal F.I.R. Ex.PE/1 was recorded at Police Station Garh Shankar on 11th February, 1983. After necessary investigation, the appellants were sent up for trial.

When examined under Section 313, Code of Criminal Procedure, the appellants pleaded innocence simpliciter. Pitambar Lal appellant examined Nirkewal Singh DW1, Manager, Sri Ram Test House, Delhi, in order to challenge the test report of the Analytical Chemist. He deposed that the test was not conducted according to the prescribed rules and norms by Analytical Chemist.

The prosecution in order to substantiate the case against the appellants, examined PW1 Jasbir Singh, Fertilizer Inspector, who took the sample and sent the same for chemical examination. PW2 Ram Kishan, Beldar, testified the taking of the sample by PW1. PW3 Kartar Singh, Analytical Chemist, Punjab Agriculture University, proved his report Ex.PF. PW4 Inspector Shiv Datt Kumar recorded the F.I.R. Ex.PE/1, took up the investigation and took into possession two stock registers Exs. P1 and P2 and four invoices Exs.P3 to P6 of the firm. He arrested three appellants except Pitamber Lal. PW5, Assistant Sub Inspector Bakhshish Singh partly investigated the case. He formally arrested Pitambar Lal appellant and released him on bail.

Mr. Gaur, learned counsel for the appellants, has contended in the foremost that although a number of independent persons were available but no one was joined at the time of the taking of the sample. It is in evidence that the samples were taken on 4th September, 1980 and the same were analysed on 15th July, 1982, i.e., after a gap of about two years. No reason has been given by the prosecution as to why they took so long to examine the sample. Under Schedule II of the Fertilizer (Control) JUDGMENT 1957, the sample shall not be taken at a place exposed to weather, it shall be placed in suitable, clean, dry and airtight glass or other suitable containers and stored in shade. No evidence is forthcoming as to whether these mandatory provisions of law were ever complied with. As per clause 4(a)(ii), 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 of the fertilizer remains unchanged. But according to the testimony of PW1 Jasbir Singh, the samples were put in polythene bags and where merely tied with a thread and, thus, they remained in the same condition for two years until they were subjected to chemical examination. In view of these facts, the possibility cannot be ruled out that the marginal deficiency of 2.37% towards water soluble phosphates in this case cropped up due to improper handling and custody of the sample.

For the reasons stated above, it cannot be held that the case against the appellants stands proved beyond shadow of doubt. Consequently, I give the benefit of doubt to the appellants and set aside their conviction and sentence. The fine, if paid, shall be refundabled to them.

JUDGMENT accordingly.