Subhash Bansal vs State of Punjab

S.D. Bajaj, J.

Fertilizer Inspector Mukhtiar Singh took a sample of ferrous sulphate fertilizer from M/s Krishi Chem Products, Haripura Road, Sangrur, on 28th July, 1987. The sample on analysis was found to be nonstandard because it did not conform to the specification set out in Schedule II of the Fertilizer Control JUDGMENT 1985. First Information Report No. 197 dated 9th December, 1987 was got registered against the concern aforesaid in Police Station, Sangrur, under section 7 of the Essential Commodities Act. One Subhash Bansal giving himself out as proprietor of the delinquent concern has filed Cri. Misc. No. 8384M of 1988 for quashing the First Information Report on the grounds that the essential ingredients of the offence alleged against the petitioner are not set out in the First Information Report and that the Fertilizer Inspector did not conform to the prescribed method while obtaining the sample.

Both the assertions made in the quashing petition have been refuted by the Investigating Officer in the reply filed on behalf of the State on 14th September, 1990.

I have heard Shri M.R. Midha, Advocate, for the petitioner, Shri B.S. Gill, A.A.G. Punjab, for the State and have carefully gone through the relevant material on record.

It has repeatedly been held by this Court in Charan Dass and others v. State of Punjab, 1987(1) Recent Criminal Reports 285; Sohan Singh & another v. State of Punjab, 1988(1) Recent Criminal Reports 372; Gian Chand Luthra v. State of Punjab, 1988(2) Recent Criminal Reports 481 and Hardev Singh and others v. State of Punjab, 1989(2) Recent Criminal Reports 420 that, infirmities in collecting the sample in violation of the statutory requirements envisaged in Schedule II of the JUDGMENT vitiates the proceedings and is a justifiable ground for quashing the same. The relevant observations read :

"The impugned First Information Report was recorded on basis of a written complaint made by the Chief Agriculture Officer, Bhatinda, to the Senior Superintendent of Police, Bhatinda. According to the allegations mentioned therein, Shri Avtar Singh, Inspector Agriculture, Rampura Phul, took a sample of 16% Single Super Phosphate Fertilizers (variety Tiger Mark) from the shop of M/s Gurunanak Pesticides and Fertilizer Store, Fertilizer Dealer, Rampura. The said sample was sent for test at Quality Control Laboratory, Ludhiana on 30111987. As per report of the Quality Control Laboratory, Ludhiana, the aforesaid sample was found to be nonstandard as Single Super Phosphate Fertilizer was found 13.83% instead of 16%. The present petitioners, who are partners of M/s Gurunanak Pesticides and Fertilizer Store, Rampura, were prosecuted for contravention of section 19(1)(A) of the Fertilizer Control JUDGMENT 1985 (hereinafter referred to as the JUDGMENT) for selling substandard fertilizer. It was further alleged that the aforesaid form, had cheated the farmers by selling nonstandard Single Super Phosphate Fertilizer and thereby farmers had suffered an irreparable loss.

It is settled law that in order to exercise the inherent jurisdiction under section 482 of the Code, for the purposes of quashment, only the allegations made in impugned First Information Report have to be considered, and the correctness or otherwise of such allegations cannot be examined.

Counsel for the parties were heard. The learned counsel for the petitioners submitted that no allegation whatsoever has been made in the First Information Report concerning the manner in which the sample of Super Phosphate Fertilizer was taken by Inspector Avtar Singh in the instant case. Neither the quantity of the fertilizer taken for the purposes of test is mentioned nor the container or the type of bag in which the sample of fertilizer was put finds mention in the First Information Report. According to Schedule II of the JUDGMENT the sample should be kept in suitable, clean dry and airtight glass or screwed hard polythene bottle of about 400 gms capacity, or in a thick gauged polythene bag. Thereafter, the said container should be put in a cloth bag which is to be sealed with the Inspector''s seal after putting inside the detailed description as specified in Form `J''.

Faced with this situation, it was submitted on behalf of the State that the sample was taken in a clean, dry and airtight thick gauged polythene bag which is a suitable container and is permissible vide Schedule II (Part `A'') I (e) of the JUDGMENTIt is also mentioned that the airtight polythene bag sample was put in a cloth bag which was scaled with the Inspector''s seal after putting inside the detailed description, as specified in Form, `J'' and the weight of the sample drawn was more than 500 grams.

No plausible explanation has been put forth on behalf of the State as to why the procedure adopted for taking the sample, or the manner in which the sample was actually taken does not find specific mention in the impugned First Information Report. This lacuna in the prosecution case cannot be filled by giving details at a later stage. Since the aforesaid mandatory legal formalities were not observed or adhered to in the instant case the impugned First Information Report and the consequent proceedings taken thereunder, including framing of charge sheet against the petitioners are liable to be quashed."

For the reasons given above, Criminal Misc. aforesaid succeeds and is allowed. First Information Report No. 197 dated 9th December, 1987 registered against M/s Krishi Chem Products, Haripura Road, Sangrur, in Police Station, Sangrur, and the proceedings initiated on its basis are both quashed.

JUDGMENT accordingly.