Vishwakarma vs State of U.P. and Others

J.C. Misra, J.—These petitions have been filed by the accused for a writ in the nature of the certiorari for quashing the first information report dated 28.2.98 in Crime No. 10 of 1998 u/s 3/7, Essential Commodities Act, P. S. Belghat, district Gorakhpur.

The prosecution case as contained in the impugned F.I.R. is that Deputy Divisional Agriculture Development Officer, Khajui, district Gorakhpur, Respondent No. 3, on 30.11.97 inspected the fertilizer shops of M/s. Gupta Khad Bhandar, bazar Lakhhura, Pakad Shankerpur and M/s. Janta Khad Bhandar, Kuti bazar and took samples of D.A.P. and single superphosphate fertilizers. Vishwakarma, Petitioner of Criminal Misc. Writ Petition No. 780 of 1998 is proprietor of M/s. Janata Khad Bhandar whereas Jokhan Prasad, Petitioner of Criminal Misc. Writ Petition No. 781 of 1998 is proprietor of Gupta Khad Bhandar. The samples were sent for chemical analysis. On chemical analysis, they were found to be non-standard. Respondent No. 3 thereupon filed first information report against both the Petitioners for violation of Fertilizer Control Order, 1985 punishable u/s 3/7, E. C. Act.

The Petitioners have filed copy of Form ''J'', which indicates that there were 88 bags of superphosphate single 16% fertilizer in the godown of Janata Khad Bhandar, Kuti bazar. The Petitioners appended their signatures on the said Form ''J'' in token of admission that the samples were taken from bags and they were divided in three packets and thereafter properly kept and sealed. Both the Petitioners were provided one sample each.

The Petitioners have filed these petitions for quashing the first information report on the grounds, inter alia, that from the lot of 88 bags of fertilizer, sample was taken from only one bag in violation of the mandatory provision. It is stated that the sample should have been taken at least from three bags. Secondly, it has been contended that the bags were found stitched and sealed and, therefore, only the manufacturer is liable. The first information report was lodged in violation of Sub-section (5) of Section 3 of the E. C. Act and Order XXXVII of the Fertilizer Control Orders. It has also been contended that result of the analysis was not communicated in accordance of clauses 19, 30 and 32 of the Fertilizer Control Orders, and, therefore, the report could not be lodged. It has also been stated that the fertilizer was not found to be adulterated and for non-standard fertilizer no report could be lodged.

Heard Sri Rahul Sripat, learned Counsel for the Petitioners and learned A. G. A.

The first question that arises for consideration is whether the dealer can be held guilty for sale, stock or offer for sale or exhibit for sale of non-standard fertilizer. Clause 19 of Fertilizer (Control) Order, 1985 provides that no person shall himself or by any other person on his behalf manufacture for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertilizer or mixture of fertilizers which is not of prescribed standard. Sub-clause (c) provides that no person shall sell, offer for sale, stock or exhibit for sale or distribute any fertilizer the container whereof is not packed and marked in the manner laid down in this Order. Clause 21 provides that any container in which any fertilizer is packed shall bear only such particulars and nothing else as may, from time to time, be specified by the Controller in this behalf ; and every container shall be so packed and sealed that the contents thereof cannot be tampered with without breaking the seal. It is provided that where fertilizer manufactured in India are packed in bags stitched by hand, such bags shall bear lead seals, so that the contents thereof cannot be tampered with without breaking the seals. However, lead sealing shall not be necessary if the bags are machine stitched or in case of fertilizers imported from abroad and packed in bags stitched by hand in such a manner that the contents thereof cannot be tampered with without visible break in the stitching.

The aforesaid provisions indicate that if any person sells or offers for sale fertilizer the container whereof is not machine stitched or if it is stitched by hand it is not lead sealed, he commits violation of Control Order.

Clause 23 of the Control Order permits a person to sell or offer for sale or stock or exhibit for sale or distribute any fertilizer which does not conform to the prescribed standard or non-standard fertilizer subject to three conditions :

(a) the container of such non-standard fertilizer is conspicuously superscribed in red colour with the words "non-standard" and also with the sign ''X'' ; and

(b) an application for the disposal of non-standard fertilizers in Form H is submitted to the registering authority to grant a certificate of authorisation for sale of such fertilizers and a certificate of authorisation with regard to their disposal and price is obtained in Form I ;

(c) such non-standard fertilizer shall be sold only to the manufacturers of mixtures of fertilizers or special mixtures of fertilizers or research farms of Government or universities or such bodies.

The price per unit of the non-standard fertilizer shall be fixed by the registering authority after satisfying itself that the sample taken is a representative one and after considering the nutrient contents in the sample determined on the basis of a chemical analysis of the non-standard fertilizer.

In view of these clauses, a person is not entitled to sell or offer for sale or stock or exhibit for sale non-standard fertilizers unless the requisite conditions are fulfilled. Moreover, Clause 19 prohibits stock, sale or offer to sell non-standard fertilizer.

In the case before us, in view of the allegations contained in the first information report, the requisite conditions were not fulfilled and consequently the Petitioners by stocking or exhibiting for sale of non-standard fertilizer violated the Control Order which is punishable u/s 3/7, Essential Commodities Act.

Coming to the second question that sample was not drawn properly. It may be pointed out that procedure for drawal of samples of fertilizers is contained in Part A of Schedule II of the Fertilizer (Control) Order. Rule 2 provides procedure for sampling from bagged materials. Lot for dealers is defined in Rule 2 (b). It provides that the lot is an identifiable quantity of same grade and type of fertilizer stored at an identifiable place subject to a maximum limit of 100 tonnes. The table given in Rule 2 (c) provides the number of bags to be chosen from a lot. In view of this table, if the number of bags is more than 10 and less than 100, 2 bags should be selected for sampling.

All the fertilizer bags of the same grade and type of each manufacture while taking samples shall be segregated and properly stacked, and be considered as one lot.

The learned Counsel in view of the aforesaid rule contended that the Respondent No. 3 should have drawn sample at least from 2 bags and as the sample was not properly drawn, the first information report is liable to be quashed.

The learned Additional Government Advocate on the contrary contended that the aforesaid provision was introduced in the Control Order to ensure that a dealer may not escape liability by keeping 2 or 4 fertilizer bags of good quality while stocking other bags of non-standard fertilizer. The aforesaid rules do not permit any dealer to sell even a single bag of non-standard fertilizer. It is on account of practical difficulties the samples are not drawn from every fertilizer bag. Instead the rules have been framed for at random checking. Rule 2 of Schedule II provides that all the bags of a lot should be arranged in a systematic manner and counting from any bag shall be started randomly. Then it is provided that after starting counting from any bag randomly, counting shall be made as 1, 2, 3...........up to r and so on, r being equal to the integral of N/n. Thus, every rth bag counted shall be withdrawn and all bags shall constitute the sample bags from where the sample is to be drawn for preparing a composite sample.

It may be pointed out that this provision was not made for the benefit of an accused as the Control Order prohibits the sale of even single bag of non-standard fertilizer and a person who commits its violation is guilty of offence punishable u/s 3/7, E. C. Act.

It has been contended that the result of analysis of the fertilizer was not communicated to the Petitioners. Clause 30 (3) of the Control Order provides that the result of the analysis shall be communicated to the dealer from whom the sample was drawn within 30 days of the receipt of the analysis report of the laboratory. If the result was not communicated to the Petitioners, it was a violation of the requirement of aforesaid sub-clause. It is, however, admitted that the Petitioners managed to gain knowledge about result of the analysis. The question arises whether on account of non-communication of the result of the analysis, the F.I.R. can be quashed. The learned A.G.A. contended that this question can only be considered by the trial Judge and in case he finds from the material on record that any prejudice was caused to the Petitioners, they may be given benefit thereof. We find force in this contention. The Fertilizer (Control) Order does not provide any opportunity to the dealer to get the fertilizer analysed. In this way, this provision is different from the Prevention of Food Adulteration Act. Prima facie, the Petitioners have been found guilty of violation of the Control Order on account of the inability of the authority concerned to communicate the result of the analysis by the laboratory the F.I.R. cannot be quashed.

Clause 37 of the Control Order directs that any order or direction made or issued by the Controller or any other authority under this order shall be served in the same manner as provided in Sub-section (5) of Section 3 of the E. C. Act. This provision does not help the Petitioners as there is no allegation that they committed any violation of order or direction of the Controller or any authority under the Control Order. The Control Order itself prohibits sale of non-standard fertilizer.

In view of the above discussions, we find that the first information report is not liable to be quashed.

The petitions are disposed of with the direction that the Petitioners shall not be arrested in Crime Nos. 9 of 1998, 9 and 10 u/s 3/7, Essential Commodities Act, P. S. Belghat, district Gorakhpur till the submission of report u/s 173, Cr. P.C.