State of Punjab vs Karam Chand Rajinder Kumar and ors.

B.S. Nehra, J.

This appeal is directed against the judgment dated 6.5.1988 of Shri M.L. Singal, Special Judge, Patiala, acquitting the respondents of the charge under Section 7 read with Section 10 of the Essential Commodities Act, 1955, for having been found in possession of sub standard fertilizer for sale, thereby contravening the provisions of the Fertilizer Control JUDGMENT 1957.

On 11.7.1984, Shri Narinder Singh, Agriculture Inspector, Patiala, visited the business premises of M/s Karam Chand Rajinder Kumar, situated in New Grain Market, Patiala, which was dealing in the sale and Purchase of fertilizers. Radhey Sham, respondent No. 5, was working as the Salesman on the shop of this firm. 27 bags of single superphospate 16% Asha Brand were found lying in the shop for sale. The Agriculture Inspector selected three bags at random out of 27 bags of fertilizer for taking out sample. He took half kg. of fertilizer from each of those three bags. Quantity so taken out of the fertilizers was spread on a paper and was thoroughly mixed. The same was divided into three parts. Each parts was put into separate polythene bags, which were dry and clean. These were tied with a string and made air tight. These were polythene bags were then put in three other bags. Slips bearing the particulars of the case were put in between the sample bags and the other bags in which the sample bags had been put in. The envelopes were sealed with the seal of Fertilizer Inspector, Patiala. Memo Exhibit PA was prepared with regard to the sampling process. One sample was given to the Radhey Sham along with a copy of memo Exhibit PA and the other two samples and memos were deposited in the office to the Chief Agriculture Officer. After processing the case, communication Exhibit PC was sent by the Chief Agriculture Officer, Patiala, to the Senior Superintendent of Police, Patiala, for registration of the case against M/s Karam Chand Rajinder Kumar under Section 7 of the Essential Commodities Act read with clause 13(i)(a) of the Fertilizer Control JUDGMENT 1957, and Section 10 of the Essential Commodities Act, 1955. After the receipt of the report of the Analytical Chemist, Punjab, Exhibit PF, according to which the sample taken from the shop of the firm was found not conforming to the standard of the fertilizer prescribed under Schedule 2 of the Punjab Fertilizer Control, M/s Karam Chand Rajinder Kumar and its partners were challaned. The Special Judge, Patiala, thereafter charged the respondent under Section read with Section 10 of the Essential Commodities Act as they were found to be in possession of substandard fertilizer for sale and thereby they contravened the provisions of Fertilizer Control JUDGMENT 1957. They pleaded not guilty to the charge and claimed trial.

In order to substantiate the charge against the respondent, the prosecution examined PW1 Shri Narinder Singh, Cane Development Inspector, Dakala, who on 11.7.1981 was posted as Agriculture Inspector, Patiala, PW2 ASI Joginder Pal of Police Station Sadar Patiala, PW3 ASI Teja Singh, Police Station Civil Lines, Patiala, PW4 Darshan Singh, Agriculture Inspector, Soil Testing Laboratory, Morinda, PW5 Karnail Singh, PW6 Bal Krishan, Dealer, Fertilizer, and PW7 Shri Kartar Singh, Soil Testing Officer, Moga. After the conclusion of the prosecution evidence, the statements of the respondents were recorded under Section 313 of the Criminal Procedure Code. They pleaded that they have been implicated falsely and added that while taking the sample, the Agriculture Inspector did not comply with the procedure prescribed in the Fertilizer Control JUDGMENT for taking the sample.

After hearing Shri Randhir Singh, Assistant Advocate General, Punjab for the appellant and Shri R.S. Ahluwalia, Advocate, for the respondents, we find that there is no merit in this appeal.

At the outset, it is necessary to set out the provisions of Rule I in Schedule II of the Fertilizer Control JUDGMENTIt reads as under :

"(a) Samples shall not be taken at a place exposed to weather.

(b)...........

(c) The material being sampled, the sampling instructions and the containers for samples shall be protected from adventitious contaminations.

(d) To draw a representative sample, the contents of each container selected for sampling shall be mixed as thoroughly as possible by suitable means.

(e) The samples shall be placed in suitable, clean, dry and air tight glass or other suitable containers.

(f) The sample containers shall be of such a size that they are almost completely filled by the sample.

(g) Each sample container shall be sealed air tight after filling and marked with full details of sampling, the date of sampling and other important particulars of the consignment.

(h).............."

Rule 4 of Schedule II of the Fertilizer Control JUDGMENT reads as under :

(i) The composite samples shall be spread out on a clean, hard surface and divided into three more or less equal portions not less than 11b. each.

(ii) Each test sample shall be immediately transferred to a suitable container, provided with a tight fitting stopper or lid so that the original composition of the fertilizer remains unchanged."

It will appear from the perusal of rule 1 ibid that it is mandatory provision of law which requires to be complied with strictly and that the sampling instructions and the containers for samples shall be protected from adventitious contaminations. While drawing a representative sample, the contents of each container selected for sampling are required to be mixed as thoroughly as possible by suitable means; the samples shall be placed in suitable, clean, dry and air tight glass or other suitable containers and each sample container shall be sealed air tight after filling and marked with full details of sampling, the date of sampling and other important particulars of the consignment. The learned trial court while coming to the conclusion that there provisions had not been complied with, had placed reliance on the judgment of the Punjab and Haryana High Court in Pitamber Lal and others v. The State of Punjab, 1986(1) Recent Criminal Reports 298 : 1985(2) Chandigarh Law Reporter 122 , wherein it was observed that in that case there was no evidence to show that the sample of fertilizer was immediately transferred to a suitable air tight container provided with a tight fitting stopper or lid. It has been held in Pitamber Lal''s case (supra) that where sample of fertilizer was not properly handled by Agriculture Inspector in accordance with law nor the same was placed in suitable airtight container or provided with a tight fitting stopper or lid, the possibility of the sample being decomposed cannot be ruled out.

In the instant case although the Agriculture Inspector had put each part of the sample into separate polythene bags and he had tied the same with stirring and made them air tight etc., there was no evidence that these were provided with tight fitting stoppers. Besides the polythene bags used by the Agriculture Inspector for sealing the sample cannot be equated with suitable air tight glass or other container as envisaged in Rule I of Schedule II of the Fertilizer Control order reproduced above. According to the report of the Analytical Chemist, Punjab, the sample of fertilizer drawn by the Agriculture Inspector was found not conforming to the prescribed standard inasmuch as the potash contents were found 4.33% as against the permissible contents of 4.0%. In other words patash content was found to be in excess by 0.33% of the prescribed standard. The possibility of the sample getting decomposed causing change in the result, on account of the failure of the Agriculture Inspector in taking in samples in accordance with Rule 1 of Schedule II of the Fertilizer Control JUDGMENT cannot be ruled out as the Agriculture Inspector had committed contravention of Rule 1 in Schedule II of the order ibid. In this view of the matter, the prosecution cannot be said to have proved the case against the respondents beyond a shadow of reasonable doubt.

For the reasons recorded above, this appeal fails and is dismissed.