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2003 DIGILAW 767 (AP)

Public Prosecutor, High Court of A. P. v. Toomuluri Narayana and Sons

2003-06-18

S.R.K.PRASAD

body2003
S. R. K. PRASAD, J. ( 1 ) THIS revision is directed against the judgment in Crl. A. No. 124/1998 reversing the order of confiscation of 62 bags of 20:20:0 fact and 6 bags of 17:17:17 and ordering release of 418 bags out of 486 bags passed by the Joint Collector Khammam, in M. C. No. 4 of 1995 dt. 22-5-1995. ( 2 ) THE facts that arise for consideration can be briefly stated as follows: the Agricultural Officer and Fertilizer inspector, Madhira, inspected the shop of there vision petitioner namely M/s. Toomuluri narayana and sons situated at D. No. 12-1, main Road, Madhira, on 20-12-1994 at about 2-15 p. m. , and noticed some discrepancies in the accounts when compared with book balance and ground balance. It is also noticed by him that the fertilizers are being sold with less weighment instead of 50 kgs per bag to the ryots by cheating them. Thereupon, he has presented report u/s. 6-A of the E. C. Act, 1955 before the Joint Collector, Khammam, for variation of entries made in the stock register and also for selling the fertilizers with lesser weighment instead of 50 kgs per bag which amounted to violation of CI. 7 19 (1) (a) (v) (vii), 35 of Fertilizer Control Order 1985. Thereupon, the Joint Collector, khammam, issued a show cause notice u/s. 6b of the E. C. Act, 1955. The 1st respondent has contended that he is not responsible for the variations in the weighments including shortage of fertilizers and manufacturer is responsible for the same. It is also contended that the Agricultural officer and Fertilizer Inspector has no power for weighment of bag and the Senior Inspector of Legal Metrology Department alone is having powers for such wighments and for filing cases under C1. 6 (l) (c) and 35 (1) of the standards of Weights and Measures (PC) rules, 1977. Thereupon, the Joint Collector, khammam, passed an order stating that the charge for storage and sale of fertilizers with short weighment instead of 50 kgs is held to be proved and thereby the petitioner has violated C1. 35 of Fertilizer Control Order, 1985. The Joint Collector, ordered for confiscation of 62 bags of 20:20:0 FACT and 6 bags of 17:17:17 to the Government. Aggrieved by the same, the respondent herein, has carried the matter in appeal before the Sessions Judge, Khammam. 35 of Fertilizer Control Order, 1985. The Joint Collector, ordered for confiscation of 62 bags of 20:20:0 FACT and 6 bags of 17:17:17 to the Government. Aggrieved by the same, the respondent herein, has carried the matter in appeal before the Sessions Judge, Khammam. The learned sessions Judge, through his judgment dated 14-7-2000 set aside the order of jointcollector, holding that the Fertilizer Control Order does not permit its officers to seize the stocks and only the officers working under Legal metrology Department have got the powers to inspect and seize the stocks for shortage in weighment when compared with the label mentioned on the bag. Thereupon, the Joint collector, Khammam, preferred his revision before this Court. The learned Public prosecutor has relied on 19 (1) (iv) (v) of fertilizer (Control) Order, 1985 and 28 (c) and contends that if any of the particulars mentioned on the bag found to be false or misleading, the officers under Fertilizer control Orders can invoke the provisions for violation of Rule 19 of the said Order. It is also contended that the officer can enter upon and search any premises where any fertilizer is manufactured or stored or exhibited for sale or if he has reason to believe that any fertilizer has been or is being manufacture, sold, offered for sale, stored, exhibited for sale or distributed contrary to the provisions of the order, and therefore, the order of the Joint Collector is valid and needs no interference by the learned sessions judge, as it is in accordance with the provisions of Fertilizer Control Orders and e. C. Act. ( 3 ) THE learned counsel for the respondent mainly contends that the revision itself is not maintainable. He further contends that the legal Metrology Department alone has got jurisdiction to initiate action for violation of the conditions if the contents on the bag do not weigh as per the standards of Weights and Measures Department, and tries to justify the order of the learned Sessions Judge. ( 4 ) ADVERTING to the same, Order 19 (l) (iv) (v) of Fertilizer Control Order reads as follows: 19. ( 4 ) ADVERTING to the same, Order 19 (l) (iv) (v) of Fertilizer Control Order reads as follows: 19. Restriction on Manufacture, sale and distribution of Fertilisers:- (1) No person shall himself or by any other person on his behalf - (a)xxxx (b)xxxx sell, offer for sale, stock or exhibit for sale or distribute (i) xxxx (ii) xxx (iii) xxx (iv) any fertilizer the label or container whereof bears the name of any individual firm or company purporting to be manufacturer of the fertilizer, which individual, firm or company is fictitious or does not exist; (v) any fertilizer, the label or container whereof or anything accompanying therewith bears any statement which makes a false claim for the fertilizer or which is false or misleading in any material particular. 28 (c) of Fertilizer Control Order reads as follows: 28: Powers of Inspectors:- (c) enter upon and search any premises where any fertilizer is manufactured or stored or exhibited for sale or if he has reason to believe that any fertilizer has been or is being manufacture, sold, offered for sale, stored, exhibited for sale or distributed contrary to the provisions of the order: ( 5 ) IT is clear from the said provisions that i the Fertilizer Inspector has got powers to enter upon any premises and search where any Fertilizer is manufactured or stored or exhibited for sale in violation of the provisions of the Fertilizer Control Order. If the label or the container gives a misleading statement or false statement regarding the material particulars, then the officer under Fertilizer control Order can inspect and seize the stock as it amounts to violation of the said order. No doubt, the dealer cannot be made responsible for the shortage in weighment as the manufacturer put the seals on the bag and sells them. But under Food Adulteration act there is a specific provision where-under if the dealer gives the information regarding the manufacturer of the adulterated goods, he can be excluded and the manufacturer alone has to be prosecuted. But such a provision has not been incorporated in fertilizer Control Orders. It is high time that such a provision has to be incorporated so that the manufacturer may not escape form his own liability since large companies managed by the government will be held responsible for the shortage in weighment. But such a provision has not been incorporated in fertilizer Control Orders. It is high time that such a provision has to be incorporated so that the manufacturer may not escape form his own liability since large companies managed by the government will be held responsible for the shortage in weighment. Concurrent powers are given to the inspectors under Fertilizer Control Order as well as Legal Metrology Department to. verify the correctness of the weighment. The inspectors of Fertilizer Control Order are given powers to verify whether the particulars mentioned on the bags are misleading or false. The officers under Legal metrology Department are given power to check the weighment only. It cannot be said that the officers under Fertilizer Control order are devoid of any jurisdiction of inspection and then verification. In that view of the matter I respectfully disagree with the findings arrived at by the learned Sessions judge as well as the contentions canvassed by the learned counsel for the respondent that the Legal Metrology Department alone has got exclusive jurisdiction to inspect and launch prosecutions. In view of the express and explicit language in Rule 19 of Fertilizer control Order, the officers under the said control Order can also check and verify whether any particulars mentioned are false or misleading and they have got jurisdiction to proceed for violation of the provisions of the said order. This Court has got ample power to send for the records from any criminal court and verify the correctness and legality of the orders passed whenever a party invokes the jurisdiction of this Court by way of revision and complains about wrong interpretation put on to the provisions. It cannot be said that a party cannot invoke the revisional jurisdiction of this Court when orders have been passed giving wrong interpretation when the Court below decides about the jurisdictional aspect, this Court has to verify the correctness of the same. I have already stated that concurrent jurisdiction have been given. It can be seen that the powers vested with the Legal metrology Department are different from that of the powers vested with the Inspector, fertilizer Control Order. One does not overlap the other. They have to act within the four corners of the said orders. No doubt it creates lot of confusion in the minds of the ordinary people. It can be seen that the powers vested with the Legal metrology Department are different from that of the powers vested with the Inspector, fertilizer Control Order. One does not overlap the other. They have to act within the four corners of the said orders. No doubt it creates lot of confusion in the minds of the ordinary people. When concurrent jurisdictions were allowed to co-exist, the matter has to be taken by the Government to clarify and confer the necessary powers exclusively on one department as to avoid confusion in the minds of people. When there is variation of weighments when compared to the particulars mentioned on the label or container, the officers under fertilizer Control order are entitled to inspect and proceed against them for violation of the provisions under the said orders. The learned sessions Judge has not decided about the correctness or legality of confiscation orders passed by the Joint Collector. In that view of the matter, I am of considered view that this matter has to be sent back to the learned sessions Judge holding that the officers under fertilizer Control Order have got jurisdiction to inspect and invoke the provisions under e. C. Act in respect of the discrepancies relating to weighment found in the fertilizer stock when compared to labels. He shall proceed to decide whether there is any justification to order to confiscation of large fertilizers when manufacturer alone is responsible for putting the labels and whether such confiscation can be resorted to in respect of technical offences, where dealer cannot be held solely responsible. The learned Sessions judge is further directed to keep in view of the provisions and dispose of the same in accordance with law. ( 6 ) IN the result, the Judgment of learned sessions judge passed in Crl. A. No. 124/98 is set aside and the matter is sent back to appellate Court. The learned Sessions Judge is directed to dispose of the same in accordance with law keeping in view of the observations made by this Court supra. This criminal Revision Case is ordered accordingly.