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Patna High Court · body

1993 DIGILAW 62 (PAT)

Arun Kumar Sinha v. State of Bihar

1993-02-16

R.N.PRASAD, S.HODA

body1993
ORDER 1. In this writ application the petitioner has prayed for quashing of the entire criminal prosecution initiated against the petitioner in Bela P.S. Case No.5 of 1993 under section 7 of the Essential Commodities Act. 2. The petitioner is a manufacturer of fertilizer (Single Super Phosphate) in the name and style of M/s. Shri Krishna Fertilizer Private Ltd. On 7.8.1992 respondent no. 3 the fertilizer Inspector collected samples of Single Super Phosphate manufactured by the petitioner under the trade name of 'Hawai Jahaz'. Three samples were collected. One was kept with the manufacturer, one was retained by the authority and one sample was sent for analysis to the Central Fertilizer Quality Control and Training Institute, Faridabad. 3. On 8.9.1992 respondent no. 3 informed the petitioner that the sample was analysed by the Central Fertilizer Quality Control and Training Institute and has been found to be sub-standard and asked the petitioner to show cause as to why legal actions be not taken against him for manufacturing non-standard fertilizer. A copy of the letter is annexed as Annexure-1 to the petition. After receipt of the aforesaid letter the petitioner applied and requested the Agricultural Director-cum Fertilizer Controller, Bihar, Patna, respondent no. 2 to get the samples collected analysed from another laboratory as the fertilizer manufactured by the petitioner's unit is of prescribed standard as per the report of the chemist of the petitioner's laboratory. Pursuant to the show cause notice issued by the respondent no. 3 the petitioner sent his reply on 29.9.1992 stating inter alia therein that the petitioner had preferred an appeal before the Agricultural Director against the petitioner and as such detailed reply would be given after the decision of the appellate authority. The petitioner again requested respondent Agricultural Director vide this letter dated 29.10.1992 to get the sample retested. On the basis of the samples collected and the analysis report a prosecution report was lodged by respondent no. 3 with the officer-incharge Bela Police Station for an offence under section 7 of the Essential Commodities Act. 4. During the course of argument learned counsel for the petitioner has confined his prayer only in regard to the analysis of the sample which has been preserved by the authority. 5. It has been submitted by Mr. 3 with the officer-incharge Bela Police Station for an offence under section 7 of the Essential Commodities Act. 4. During the course of argument learned counsel for the petitioner has confined his prayer only in regard to the analysis of the sample which has been preserved by the authority. 5. It has been submitted by Mr. N.K. Agarwal, learned counsel appearing on behalf of the petitioner that under the Fertilizer Control Order three samples are collected and preserved out of which one is sent for analysis, the other is retained by the authority and the third is kept with the manufacturer. He has further submitted that the purpose of retaining one sample by the manufacturer and other by the authority is for the reason that in the event of the report of the analysis being challenged the dealer/manufacturer may have an opportunity of getting the sample re-analysed. 6. On 4.2.1993 when this matter was taken up for admission learned JC to GP 2 prayed for ten days' time to enable him to seek instruction in the matter. Today when the matter was taken up learned GP 2 stated that he has no instruction. In such a situation we are disposing of this application at the admission stage on the basis of the averments made in the writ application. 7. Learned counsel for the petitioner in order to support his submission has relied on a decision of the Allahabad High Court in the case of Chemical Industries vs. M/s. Agarwal Pesticides and Chemical Industries (Civil Misc. Writ Petition No. 6003 of 1978) disposed of on 29.1.1979 to show that the petitioner had a right to have the sample in his possession analysed. Writ Petition No. 6003 of 1978) disposed of on 29.1.1979 to show that the petitioner had a right to have the sample in his possession analysed. The Allahabad High Court noticed an order passed by the Supreme Court in the case of M/s. Chemical and Fertilizers India vs. State of Uttar Pradesh and others (Civil Appeal No. 1560 of 1978 and Civil Appeal No. 1561 of 1978) where the Supreme Court passed an interim order at the time of admission of the said appeal in the following terms:– "Since time is the essence of the matter, it is directed that out of the two samples of fertilizer one lying sealed with the petitioners and the other lying sealed with the District Agriculture Officer one shall be sent for examination and analysis by a State Analyst/ Chemist other than the one who had already examined the sample and the second sample shall be sent to the Chief Chemist/Analyst of the Nangal Fertilizer Ltd. Nangal, through the General Manager of that undertaking by the Registrar of this Court for examination/ Analysis by him. The experts/analysts to whom the samples will be sent for analysis will make it convenient to submit their detailed reports giving the results of the examination tests applied and the detailed reasons in support of their reports to this Court before the 31.7.1978. The petitioner shall deposit the necessary charges for such analysis which will be paid to the analysts." 8. Taking into consideration the relevant provisions under the Fertilizer Control Order and the order of the Supreme Court noted above the Allahabad High Court held in the aforesaid decision as follows:– "As ordered by the Supreme Court in the appeal mentioned earlier, the Deputy Director, Fertilizers and Manufacturers, Uttar Pradesh is directed to send the reference sample and the one with the petitioner for examination and analysis by the State Analyst/Chemist other than the one who has already examined the sample which was found to be sub-standard." The Court also directed that the petitioner shall pay such costs as might be needed for the analysis of the reference sample of mixture. 9. We are in agreement with the aforesaid decision of the Allahabad High Court and the order of the Supreme Court and accordingly, direct respondent no. 2. 9. We are in agreement with the aforesaid decision of the Allahabad High Court and the order of the Supreme Court and accordingly, direct respondent no. 2. The Agricultural Director-cum Fertilizer Controller, Bihar, Patna to dispose of the application filed by the petitioner with regard to the analysis of the samples in terms of the decision of the Allahabad High Court and the order of the Supreme Court noted above within one week from the date of receipt/production of a copy of this order. It is made clear that the petitioner shall bear the charges of analysis of samples. 10. In view of the aforesaid direction we make it clear that the investigation of the case against the petitioner shall proceed but no coercive step shall be taken against him till the samples are finally tested analysed.