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2003 DIGILAW 1122 (PNJ)

State of Punjab v. Ashok Kumar

2003-08-13

NIRMAL SINGH

body2003
JUDGMENT Nirmal Singh, J. - The respondents were prosecuted under Section 7 of the Essential Commodities Act (hereinafter called the "Act") read with clause 1(i)(a) of the provisions of Fertilizer Control Order, 1985 (hereinafter called "the order"). 2. The prosecution case, in brief, is that on 4.9.1990 Harjit Singh, Fertilizer Inspector, accompanied by Gurdial Singh, Agricultural Officers, inspected the business premises of the society and after disclosing his identity, expressed his intention to draw a sample of Zinc Sulphate, out of the 75 bags of Zinc Sulphate 21% (Kishan Brand) stored for sale by the Society. Ashok Kumar respondent was present at that time. Approximately 1200 grams of sample was drawn and mixed thoroughly. The sample was then divided into three equal parts and transferred in three separate clean and dry polythene bags. Declaration Form "J" was also prepared and put in each of the sample bag before sealing. One part of the sample was handed over the Ashok Kumar respondent and the remaining two parts were handed over to Amrik Singh, Agricultural inspector to the office of Chief Agricultural Officer, Hoshiarpur. Amrik Singh sent one part of the sample through Manga Ram to the laboratory at Ludhiana. On analysis the sample was found to be of non- standard, as the Zinc content percentage by weight exceeded the permissible tolerance limit of 0.2, vide report Ex.PL of the Fertilizer Quality Control Laboratory, Ludhiana. After the receipt of the report of the chemical examiner, the prosecution was launched against the petitioner. 3. A show cause notice was issued to the respondents under Section 7 of the Act read with provisions of clause 19(i)(a) of the Order, to which the respondents pleaded not guilty and claimed trial. 4. The prove its case the prosecution examined Inspector Harjit Singh PW1, Gurdial Singh Agricultural Officer PW2, Amrik Singh, Agricultural Development Officer PW3, Mehnga Ram PW4, Shadhar Kumar PW5, Harmesh Chander PW6 and S.I. Darshan Singh PW7, besides tendering into evidence the report Ex.PL of the Laboratory. 5. When examined under Section 313 Criminal Procedure Code to explain the incriminating circumstances appearing in the prosecution evidence, the respondents denied their involvement and Ashok Kumar respondent asserted that the sample had not been taken by the Fertilizer Inspector in accordance with the rules and that he was merely an employee of the Society and had no personal interest. 5. When examined under Section 313 Criminal Procedure Code to explain the incriminating circumstances appearing in the prosecution evidence, the respondents denied their involvement and Ashok Kumar respondent asserted that the sample had not been taken by the Fertilizer Inspector in accordance with the rules and that he was merely an employee of the Society and had no personal interest. To the same effect is the statement of Rattan Singh respondent, who asserted that the sample was not drawn in accordance with the rules and that he was not responsible for the conduct of the business of the Society, whereas Gurdip Singh Nagpal came out with the following plea : "The sample was not taken in my presence and I was informed by the representative of the society that the Fertilizer Inspector had not drawn the sample in accordance with the rules and had exposed the sample to moisture and had also not drawn the correct quantity of the sample. We are not supplied even the copy of the report or the Laboratory by the prosecution, nor any show cause notice was given by the Chief Agriculture Officer, Hoshiarpur, nor any show cause notice issued before launching the prosecution.........xx........." 6. When the respondents were called into their defence, they tendered in evidence the letter Ex.DA which was issued by the Commissioner (Fertilizer) Govt. of India, Ministry of Agriculture, New Delhi to the Director of Agriculture, Punjab in support of their plea. 7. The learned trial Court after perusing the evidence of the prosecution and hearing counsel for the accused and the Public Prosecutor, acquitted the respondents. Aggrieved by the order of acquittal, the present appeal has been preferred by the State. 8. I have heard Mr. Grewal, learned Deputy Advocate General, Punjab for the appellant and with his assistance, have gone through the record of the case. 9. The procedure for taking the sample has been prescribed in Part-A of Schedule II of sub-clause (e) of the Fertilizer (Control) Order, 1985, which reads as under : "The sample should be kept in suitable, clean, dry and air tight glass or screwed hard polythene bottle of about 400 gm capacity or in a thick gauged polythene bag. Thus, should be put in a cloth bag which may be scaled with the inspectors seal after putting inside the detailed description as specified in Form "J". Thus, should be put in a cloth bag which may be scaled with the inspectors seal after putting inside the detailed description as specified in Form "J". Identifiable details may also be put on the cloth bag like sample No./Code No. or any other details which enables its identification." 10. If the sample has not been drawn as per the procedure laid down in Part A of Schedule II sub-clause (e) of the Order, then the accused cannot be convicted for the same. Inspector Harjit Singh while appearing as PW1 has not deposed that before drawing the sample, he had followed the safeguard laid down is Schedule II. He has also not deposed that he had mixed the contents of each bag selected for sampling thoroughly. He has also failed to specify that the sample was taken by a dry, clean, sampling probe inserted in the bag from one corner to other diagonally. Mere putting sample in three polythene bags was not sufficient when it did not conform to the mandatory procedure laid down for drawing the sample of fertilizer. When the aforesaid necessary requirements have not been shown to have been complied with, the respondents cannot be held guilty. Finding no merit in this appeal, the same is dismissed. Appeal dismissed.