Criminal Misc. No. 4893-M of 1991

14th January, 1994.

Petitioner Counsel: A. L. Behl, for s
Respondent Counsel: A. R. Sidhu,Dy. Advocate General (Punjab), .

Cases Cited:
(1993) 2 Rec. Cri R 145 (Punj and Har) [Para 8]
(1988) 2 Chand LR (Cri) 652,(1988) 2 Rec Cri R 481 (2) (Punj and Har) [Para 7]

JUDGMENT

ORDER :-Sarup Chand and three other partners of M/s. Garg Kishan Sewa Centre, Tapa Mandi, have filed this petition under S. 482, Cr. P.C. for quashing, FIR No. 5 dated 13-1-1991 registered at Police Station, Tapa Mandi against the petitioners under S. 7 of the Essential Commodities Act read with Clause 19(i)(a) of the Fertilizer (Control) Order, 1985.

2. The brief facts of the case are that on 16-7-1990 the Fertilizer Inspector Shri Kewal Krishan took a sample of fertilizer to SSP of J and T Super brand from the premises of the firm of the petitioners and the same was sent for analysis to Analytical Chemist (Incharge) Fertilizer Quality Control Laboratory, Ludhiana. The analyst submitted hi s report dated 31-8-1990 to the effect that the sample of the fertilizer was non-standard. On the basis of this report the Chief Agricultural Officer, Sangrur sent a complaint to Senior Superintendent of Police, Sangrur, for the registration of a case against the petitioners and the case was registered against the petitioners and the case was registered against Sarup Chand partner of firm of M/s. Garg Kisan Sewa Centre, Tapa Mandi and M/s. Agro Chemicals Private Limited, Dhillon Complex, Mani Majra.

3. The petitioners alleged that the allegations contained in the FIR even if taken to be wholly correct did not disclose the commission of any offence. The free acidity and free phosphoric acid found in the sample did not damage the crop or soil and was not at all injurious or harmful and as such the farmers were not cheated agronomically or financially. The petitioners firm got the fertilizer in machine stitched bags from the manufacturer company and it sold the same without opening or without even knowing its contents. So, no fault was attributable to the petitioners and the manufacturers were directly responsible with respect to the contents of the fertilizer contained in the machine-stitched bags. It was further alleged that the sample in question was analysed higher in free acidity as phosphoric acid and the same was only possible if phosphoric acid was added in the material. Since this acid was very expensive as compared to the super phosphate so no person will add it. The minor increase of free acidity in the sample in question was not harmful to anybody and was due only on account of natural reaction of free phosphoric acid with rock phosphate. The manner in which the sample of super phosphate fertilizer was taken by the inspector was also not proper as neither the quantity of the fertilizer taken nor the types of bags in which the sample was put was mentioned and the FIR was liable to be quashed on this ground alone.

4. In the written statement filed by the respondent the allegations made in the petition were denied and it was contended that the petitioner had violated Clause 19(1)(a) of the Fertilizer (Control) Order, 1985, so he was liable to punishment under S. 7 of the Essential Commodities Act. It was maintained that growth of the Plants is affected if free phosphoric acid is found higher than the maximum prescribed limit and that is why the specification of free phosphoric acid is made. It was further pleaded that the sample was drawn as per instructions laid down in Schedule II of the Fertilizer (Control) Order, in dry, clean, thick gauged polythene bags which were air-tight and were put into the cloth bags along with form, 'J' containing the detailed information regarding the sample drawn and the procedure followed for drawing the sample was specifically mentioned in the complaint itself.

5. I have heard Mr. A. L. Behl, the learned counsel for the petitioners and Mr. A. R. Sidhu, the learned Deputy Advocate General, Punjab, for the respondent, and have perused the record.

6. It was argued on behalf of the petitioners that as per report of the Analytical Chemist, Punjab, Water Soluble P2 P5 percent was found in the sample as 16-03 as against 16% white the permissible tolerance limit was O.1 and free phosphoric acid was found 4.91% as against specification of 4%, but these variations were of minor nature and the fertilizer in question was not to harm the crops or the soil, so these could be ignored. Moreover, free phosphoric acid was quite expensive and nobody was likely to mix it with the fertilizer. So, the excess, if any, was found due to natural reaction of free phosphoric acid with rock phosphate which gave more active nuitrant. The petitioners were, thus, not liable for the commission of any offence. This contention of the learned counsel is without merit. There is a specification for each of the ingredients of the fertilizer and if the fertilizer is found not according to those specifications, it is non-standard. According to the specifications the fertilizer in question was to contain water soluble P2 P5 to the

extent of 16% and tolerance was permissible to the extent of 0.1 %, but it was found in excess. Similarly maximum free phosphoric acid was permissible to the extent of 4% and it was found 4.91%. No variation was to be tolerated in this content and that is why the Analytical Chemist described the fertilizer as non-standard. Section 19 of the Fertilizer (Control) Order prohibits the manufacturer for sale, offer for sale, stock or exhibit for sale or distribution of any fertilizer which is not of prescribed standard. So in view of the report of the analyst it could not be said that ingredients of no offence were spelled out by the averments made in the first information report. The petitioners are the partners of M/s Garg Kisan Sewa Centre, which firm deals in the sale of the fertilizer.

7. It was next urged on behalf of the petitioners that the sample in question was not taken by the fertilizer inspector as per rules and he did not disclose the quantity of the fertilizer taken for the purpose of test nor the container in which the sample was put. According to Schedule-II of the order the sample was to be kept in suitable clean, dry and airtight glass or screwed hard polythene bottle of about 400 grams capacity or in a thick gauged polythene bag and after that the container was to be put in a cloth bag which was to be sealed with the Inspector's seal. As these provisions had not been complied with, the FIR was liable to be quashed. The learned counsel placed reliance on the case of Gian Chand Luthra v. State of Punjab, (1988) 2 Chand LR (Cri) 652. In this case the sample of fertilizer was found to be sub-standard vide report of the Public Analyst, but the precise weight of the sample was not noted while sending the same for analysis nor the sample was placed in suitable clean dry and air-tight glass or other proper container and stored in shade. It was held that mandatory legal formalities were not preserved in that case. Consequently the proceedings were quashed in exercise of inherent powers under S. 482 Cr. P.C.

8. I have considered the contention of the learned counsel and I find that the same is not tenable in view of the facts of the present case. A perusal of the impugned FIR will show that the sample in the case was properly taken and all the details regarding the manner in which the sample was taken found mentioned in the report itself. The sample was taken on a clean news paper sheet, it was thoroughly mixed and three representative samples were prepared each weighing about 500 grams in a thick gauged polythene bags. Containers were made free of air by tightly fastening the opening with a thick thread and the containers were transferred into cloth bags along with form 'J'. In Ashwani Kumar v. State of Punjab (1993) 2 Rec Cri R 145 it was held that sample of fertilizer was to be taken in a manner laid down in Fertilizer (Control) order, but it was not necessary to mention in the FIR that sample was taken in a manner laid down in the Fertilizer (Control) Order. By this judgment the authority on which the learned counsel for the petitioner placed reliance was overruled. The first information report in question, thus, does not suffer from any infirmity and is not liable to be quashed on the ground that the sample was not properly taken.

9. No other point was pressed before me.

10. The petition is benefit of any merit and the same is hereby dismissed.

Petition Dismissed