Sunil Kumar And Ors vs State Of Rajasthan

The petitioners have preferred this misc. petition under Section 482 Cr. P.C., for the following reliefs :-

"It is, therefore, most humbly and respectfully prayed that this criminal misc. petition filed by the petitioners-accused may kindly be allowed and the proceedings pending against the petitioners/accused in the court of learned Chief Judicial Magistrate, Sri Ganganagar as Criminal Case No.35/2003 (State Vs. Sunil Kumar & Ors.) under Section 3/7 of the Essential Commodities Act, 1955 read with Clause 19(1) (A) of the Fertilizer (Control) Order, 1985 may kindly be quashed and set aside qua the petitioners-accused."

The facts of the case in brief are that on 21.10.2002 a complaint was filed by State of Rajasthan through Shri Safi Mohammed, Fertilizer Inspector and Agriculture Officer (Plaint Protection), Anoopgarh, District Sri Ganganagar under the Essential Commodities Act, 1955 before the court of learned Special Judge, Sri Ganganagar against the present petitioners and one Dhanshul Singh, who is Quality Controller of manufacturing concern of M/s. Rama Phosphates Limited, Jhamarkotra Road, Village Umra, Tehsil Girva, District Udaipur under the provisions of Fertilizer (Control) Order, 1985 read with provisions of the Essential Commodities Act, 1955 alleging inter alia that for the purpose of examining standard quality of 60% of Super Phosphate he reached shop of M/s. Ajay Fertilizers, Gharsana alongwith his colleague Om Prakash Motsara & Chhagan Lal Sharma on dated 12.6.2002 and took sample of Super Phosphate in presence of Ajay Kumar, Manager of the firm after giving him a notice of that intent. The Fertilizer Inspector further alleged that he took out sample from 06 bags separately and after mixing bags separately draw sample of 500-500 Grams. After filling Form "J" and preparing Inspection Memo sealed the sample and gave one sample to Manager of Firm Shri Ajay Kumar and took receipt. The Fertilizer Inspector alleged that after analyzing the sample, the Super Phosphate does not confirm to the standard quality of 60%, thus, was found sub-standard. Thereafter, after sending a notice to seller as well as manufacturer of fertilizer, a complaint was filed.

The sole argument of counsel for the petitioner is that the sample was drawn in cloth bags, thus, there was clear cut violation of mandatory provisions of Fertilizer (Control) Order, 1985, thus, stated that where the Authority has not followed the mandatory provisions for drawal of sample of fertilizer, therefore, the proceedings pending before the learned trial court qua the petitioners deserve to be quashed and set aside. To substantiate his argument counsel for the petitioner has relied upon the judgments of this Hon'ble Court in Dhirajmal & Anr. Vs. State of Rajasthan reported in 2004(2) Cr. L.R. (Raj.) 1412 and Gauri Shanker & Ors. Vs. State of Rajasthan reported in 2012 (2) WLC (Raj.) 673.

Counsel for the petitioner has further drawn attention of this Court towards Inspection Memo dated 12.6.2002, relevant portion of which reads as follows :-

"परखी द्वारा निकालकर उसको एक स्थान पर इक्कट्ठा कर कपडे की तीन थैलियां में प्रति थैली 500 ग्राम के हिसाब से उर्वरक डाला। बाद में फार्म न. ''जे'' 28 (1)(बी) भरकर दुकान के व्यवस्थापक के हस्ताक्षर करवाकर थैलियों के अन्दर डालकर दुकान के व्यवस्थापक के सामने सील बन्द किया गया।"

Counsel for the petitioner, therefore, submits that where there was violation of mandatory provisions of Section 1(e) of Fertilizer (Control) Order, 1985 of taking sample in an airtight glass or screwed hard polythene bottle. The respondents have miserably failed to adhere to mandatory provisions of Fertilizer (Control) Order, 1985, more specifically, Order 1(e).

Learned Public Prosecutor opposed the petition but completely failed to point out as to how there was compliance of Order 1 (e) of the Fertilizer (Control) Order, 1985. Learned Public Prosecutor also accepts seizure memo dated 12.6.2002, which has been reproduced above.

After hearing counsel for the parties and perusing record of case as well as Fertilizer (Control) Order, 1985, this Court is of the opinion that there was violation of the mandatory procedure prescribed as regards the manner in which the sample of fertilizer was to be taken and packed. The essence of the procedure is that the sample should be taken in such a manner so as to prevent them from being exposed to moisture and sunlight else the standard of fertilizer is bound to reduce.

The upshot of whole discussion is that instant criminal misc. petition is allowed. The proceedings pending against the petitioners before the court of learned Chief Judicial Magistrate, Sri Ganganagar in Criminal Case No.35/2003 (State Vs. Sunil Kumar & Ors.) under Section 3/7 of the Essential Commodities Act, 1955 read with Clause 19(1) (A) of the Fertilizer (Control) Order, 1985 are hereby quashed and set aside.