Vishwakarma vs State of U.P.& Ors.

J.C. Mishra, J.—These petitions have been filed by the accused for a writ in the nature ol the ceniomri for quashing I he First Information Report dated 2S298 in Crime No. 10 of 1998 under Section 3/7 Essential Commodities Act, P.S. Belghul, district Gorakhpur.

The prosecution case as contained in the impugned F.I.R. is that Depuly Divisional Agrieulture Development Officer, Khajui, district Gorakhpur, respondent No. 3, on 301197 inspected the fertilizer shops of M/s. Gupta KhadBhandar, Bazar Lakhura, Pakad Shankerpur and M/s. Janata Khad Bhandar, Kuli Bazar and took samples of D.A.P. and single superphosphate fertilizers. Vishwakarma, petitioner of Criminal Misc. Writ Petition No. 780of 1998is proprietor (MM/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 nonstandard. Respondent No. 3 thereupon filed First Information Report against both the petitioners forviolalion of Fertilizer Control Order, 1985 punishable under Section 3/7, E.G. Act.

The petitioners have filed copy of Form ''J'', which indicates that there were 88 bags of super phosphate single 16% fertilizer in thegodown 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 subsection (5) of Section 3 of the E.G. Act and Order 37 of the Fertilizer Control Orders. It has also been contended that result of the analysis was not communicated in accordanceof 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 nonstandard 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, slock or offer for sale or exhibit for sale of nonstandard 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. Subclause (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 scaling 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 safe or stock or exhibit for sale or distribute any fertilizer which does not conform to the prescribed standard or nonstandard fertilizer subject to three conditions:

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

(b) an application for the disposal of nonstandard fertilizers in FormII 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 nonstandard fertilizer shall be sold only to the manufacturers of mixtures of fertilizers or special mixtures of fertilizers or research farms of Government or universities of such bodies.

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

In view of these clauses a person is not entitled to sell or offer for sale or stock or exhibit for sale nonstandard fcrlilizers unless the requisite conditions are fulfilled. Moreover, clause 19 prohibits stock, sale or offer to sell nonstandard 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 lor sale of nonstandard fertiiizer violalcd the Control Order which is punishable under Section 3/7, Essential Commodities Act.

Coming to the second question that sample was not drawn properly, lt may be pointed out that procedure for dRawat 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 some grade and type of fertilizer stored at an identifiable placesubject 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 1002 bagsshould 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 bags of nonstandard fertilizer. The aforesaid rules do not permit any dealer to sell even a single bag of nonstandard 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 rand so on, being equal to the integral of N/n. Thus, every with 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 nonstandard fertilizer and a person who commits its violation is guilty of offence punishable under Section 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 subclause. It is, however, admitted that the petitioners managed to gain knowledge about result of the analysis. The question arises whether on account of noncommunication of the result of the analysis the F.I.R. can be queshed. The learned A.G.A. contended that this question 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. Primafacie the petitioners have been found guilty of violation of the Control Order on account of the in ability of the authority concerned to communicate the result of the analysis by the laboratory the F.I.R. cannot be queshed.

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 subsection (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 prohibitssaleof nonstandard 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 under Section 3/7 Essential Commodities Act, P.S. Bclghat, district Gorakhpur till the submission of report under Section 173 (2), Cr. P.C. Petitions disposed of.