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2004 DIGILAW 1710 (MAD)

M. Thangavelu v. The Inspector of Police

2004-12-15

R.BANUMATHI

body2004
Judgment :- Appellant is the Accused in S.T.C.No.5 of 1996 on the file of Special Judge for Essential Commodities / NDPS Act, Coimbatore. By the Judgment (dated 31.12.1997), the Appellant / Accused has been convicted for contravention of Clauses 5, 7 and 13 of Fertilizer (Control) Order, 1985 and sentenced to undergo Simple Imprisonment for a period of Three months on Three counts and to pay a fine of Rs.1000/- each on Three counts. 2. P.W.1 is the Agricultural Officer of Erode. Complaints were received from various persons under Exs.P.1 to P.3 that Adulterated Fertilizer have been manufactured inside the premises of M/s.Venkateswara & Co., and the same has been sold duping the innocent farmers. On receipt of such Complaints, on 23.09.1989, P.W.1 along with his Assistants went to E.K.M.S.Leather Finishing Industry premises in Sathy Road and found about seven persons packing Adulterated Fertilizer. P.W.1 lodged Ex.P.4-Complaint to the Inspector of Police, Erode. On receipt of the Complaint, the Inspector of Police (Crime Branch) – P.W.4 has registered a case in Crime No.925/89 under Sec.420 I.P.C under Ex.P.6-F.I.R. 3. P.W.4 inspected E.K.M.S Leather Finishing Industry premises at about 06.15 p.m on the same day – 23.09.1989 and prepared Ex.P.7-Observation Mahazar and Ex.P.8-Rough Plan in the presence of Independent Witnesses Krishnamurthy and Thangavel. On the next day – 24.09.1989 at about 07.30 a.m., again he came to the place of occurrence and seized 86 bags of Adulterated Fertilizer each containing 56 Kgs., under Ex.P.5-Seizure Mahazar in the presence of P.W.3-Jayaraj and another Witness Matheswaran. The Accused was arrested at Bharathipuram and he was remanded to Judicial Custody. After taking sample, the Material Object was sent to the Judicial Magistrate No.1, Erode. On requisition from P.W.4, the Sample was sent to Chemical Analysis. The Fertilizer Sample was found to be Adulterated mixture with portions of Earth and Fish. Ex.P.10 is the Chemical Analysis Report. On completion of the Investigation, the Accused was charge sheeted for the contravention of Clauses 5, 7 and 13 of Fertilizer (Control) Order, 1985. 4. In the Trial Court, to substantiate the Charge against the Accused, P.Ws.1 to 5 were examined, Exs.P.1 to P.11 were marked. M.O.1-Sample Fertilizer Mixture was produced. The Accused was questioned under Sec.313 Crl.P.C about the incriminating evidence and circumstances. 4. In the Trial Court, to substantiate the Charge against the Accused, P.Ws.1 to 5 were examined, Exs.P.1 to P.11 were marked. M.O.1-Sample Fertilizer Mixture was produced. The Accused was questioned under Sec.313 Crl.P.C about the incriminating evidence and circumstances. Denying all of them, the Accused has stated that he has not committed any offence and that he has purchased Salt for fertilizing the Coconut trees and he has not done the act of Adulteration of Fertilizer. 5. In consideration of the evidence, accepting the evidence of P.Ws.1,3 and Investigating Officer – P.W.4, learned Special Judge found that the Prosecution has established that the Accused has manufactured and sold the Adulterated Fertilizer and sold it to the Farmers without obtaining any Registration Certificate. The Accused was found guilty for violation of Clauses 5,7 and 13 of Fertilizer (Control) Order, 1985 and the Accused was sentenced to undergo Simple Imprisonment as aforesaid in para (1). 6. Contending that there had been no contravention of Clauses 5,7 and 13 of Fertilizer (Control) Order, 1985, the Appellant / Accused has preferred this Appeal. Onbehalf of the Appellant / Accused, it is contended that contravention of Clauses 5,7 and 13 of Fertilizer (Control) Order, 1985 have not been made out against the Appellant / Accused and the Conviction is unsustainable. Contending that the Appellant / Accused is neither a Dealer nor a Manufacturer to attract Clause 7 of the Fertilizer (Control) Order, 1985, learned Counsel has submitted that the Appellant had only dealing in conventional methods of preparing Fertilizer for growing Coconut Trees, which the Trial Court has not properly appreciated and erred in convicting the Appellant / Accused. 7. Laying emphasis upon Ex.P.10-Chemical Analysis Report wherein the Fertilizer Sample was found to be Adulterated, it is contended by the learned Government Advocate Mr.V.Jayaprakash Narayanan that the Accused having been in possession of 86 bags of Adulterated Fertilizer each containing 56 Kgs. was rightly found guilty for the contravention of Clauses 5,7 and 13 of Fertilizer (Control) Order, 1985 and that the Conviction of the Appellant / Accused warrants no interference. 8. was rightly found guilty for the contravention of Clauses 5,7 and 13 of Fertilizer (Control) Order, 1985 and that the Conviction of the Appellant / Accused warrants no interference. 8. In consideration of the evidence, submissions of both sides, Judgment of the Trial Court and the materials available on record, the point that arises for consideration is : Whether the Accused is proved to have violated the provisions of Fertilizer (Control) Order, 1985 and whether the Conviction of the Appellant / Accused suffers from infirmity warranting interference. 9. Case of Prosecution is that inside the premises of E.K.M.S.Leather Finishing Industry, the Accused was found to be carrying on business of Fertilizers by mixing portions of Fish, Earth and Urea without obtaining Certificate of Registration and selling the said Mixture of Fertilizer to the Farmers. The Accused is alleged to have sold the Fertilizer to the Farmers. Three Complaints (Exs.P.1 to P.3) have been received by the Assistant Director of Agriculture, Erode. In those Complaints, specific Complaints have been made as Similar Complaints have been made in Exs.P.1 and P.3 also. On receipt of those Complaints, Assistant Director of Agriculture has preferred the Complaint before the Crime Branch. P.W.4 has registered the case in Crime No.925/89 under Sec.420 I.P.C under Ex.P.6-F.I.R. 10. P.W.4 – Inspector of Police inspected the place of occurrence on the evening of 23.09.1989 and on the morning of 24.09.1989. On 24.09.1989 – 07.30 p.m., from the said premises, he seized 86 bags of Adulterated Fertilizer (each containing 56 Kgs) mixed with portion of Fish and Jipsum. P.W.3-Jayaraj witnessed the Seizure and P.W.4-Inspector of Police have clearly spoken about the seizure of Fertilizer from the Accused. That P.W.4 seized 86 bags of Adulterated Fertilizer each containing 56 Kgs., is strengthened by the contemporaneous Seizure Mahazar – Ex.P.5 wherein the seized object is stated as:- The sample was sent to Chemical Analysis. In the Chemical Analysis, the Sample was found to be Adulterated. From Ex.P.10-Chemical Analysis Report, it comes to be known that the Sample Fertilizer is Adulterated as : “...The above Article was examined and thirty five (35) percent of portions of Fish, Sixty Three (63) percent of Earth and Sixty (60) milligrams percent w/w of Urea were detected in it...”. No toxic substance like Arsenic or Mercury were detected. From Ex.P.10-Chemical Analysis Report, it comes to be known that the Sample Fertilizer is Adulterated as : “...The above Article was examined and thirty five (35) percent of portions of Fish, Sixty Three (63) percent of Earth and Sixty (60) milligrams percent w/w of Urea were detected in it...”. No toxic substance like Arsenic or Mercury were detected. Thus, from the evidence of P.Ws.3 and 4 and Ex.P.10-Chemical Analysis Report, possession and selling of Adulterated Fertilizer by the Accused is prima facie is proved. 11. Contravention of Clause 7 of the Fertilizer (Control) Order, 1985: - Clause 7 refers to DEALERS TO BE REGISTERED, which reads thus:- “....No person, including a manufacturer, importer a pool handling agency, a wholesale dealer, a retail dealer and industrial dealer shall offer for sale or carry on the business of selling fertilizers at any place except under and in accordance with the terms and conditions of a certificate of registration granted to him under clause 9...” The Accused was found to be carrying on business in dealing with / selling Fertilizer within the premises of E.K.M.S.Leather Finishing Industry. The Accused had not produced any Certificate of Registration as contemplated under Clause 7. Prosecution has thus established the contravention of Clause 7 of the Fertilizer (Control) Order, 1985. 12. Contravention of Clause 13 of the Fertilizer (Control) Order, 1985: - Clause 13 deals with STANDARDS OF MIXTURES OF FERTILIZERS. As per Clause 13, no person shall manufacture any mixture of Fertilizer unless such mixture conforms to the standards set out in the Notification issued by the Central Government. Clause 13 reads thus: “....(1) Subject to the other provisions of this order no person shall manufacture import any mixture of fertilizers whether of solid or liquid fertilizers specified in Part A of Schedule I of the Order unless such mixture conforms to the standards set out in the Notification to be issued by the Central Government in the Official Gazette.” As discussed earlier, from Ex.P.10 – Chemical Analysis Report it comes to be known that the Sample of the Fertilizer seized from the Accused was found to be Adulterated – containing 35% portions of Fish, 63% of Earth and 60 milligrams percent of Urea. That the sample was found Adulterated clearly establishes contravention of Clause 13 of the Fertilizer (Control) Order 1985. 13. That the sample was found Adulterated clearly establishes contravention of Clause 13 of the Fertilizer (Control) Order 1985. 13. Contravention of Clause 5 of the Fertilizer (Control) Order, 1985: - Clause 5 refers to ISSUE OF CASH / CREDIT MEMORANDUM, which reads thus: “...Every dealer shall issue a cash or credit memorandum to a purchaser of a fertilizer in FORM M”. In Ex.P.3-Compliant it has been reported that in the premises of M/s.Venkateswara & Co., the Adulterated Fertilizer has been sold under Anamath Bills and no regular cash bills are being passed. No doubt, for proving the sale, no independent Witnesses were examined by the Prosecution. But, the Accused was found to be in possession of huge quantity of 86 bags of Adulterated Fertilizer, presumably only for sale. 14. In his Complaint(Ex.P.4), P.W.1-Agricultural Officer has reported about the act of the Accused in employing seven labourers and preparing the mixture of 4.5 Tonne Jipsum with Fish and Salt and selling the same in Fertilizer Bags each 50 Kgs. Though no Independent Witness has been examined, the statement of Agricultural Officer made in Ex.P.4 is a strong circumstance against the Accused on the act of selling Adulterated Fertilizer to the Agriculturists. 15. The Accused is prima facie found to have committed the offence for the contravention of clauses 5,7 and 13 of the Fertilizer (Control) Order, 1985, which is punishable under Sec.7 of the Essential Commodities Act. It is also relevant to refer to Section 10-C of the Essential Commodities Act, which raises the presumption of culpable mental state. As per Section 10-C of the Act, in any prosecution for any offence under Essential Commodities Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the Accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. The Court has to bear in mind the statutory presumption of culpable mental act envisaged under Section 10-C of the Essential Commodities Act. Burden is cast on the Accused to rebut such presumption. 16. The Court has to bear in mind the statutory presumption of culpable mental act envisaged under Section 10-C of the Essential Commodities Act. Burden is cast on the Accused to rebut such presumption. 16. Onbehalf of the Accused, it is contended that the Accused is neither a Dealer nor a Manufacturer to attract the provisions of Clauses 5,7 and 13 of the Fertilizer (Control) Order, 1985 and the Conviction of the Appellant is unsustainable. It is the further contention that the Appellant had been dealing in conventional methods in preparing Fertilizer and that he is neither a Manufacturer nor a Dealer. This argument has no basis in view of Clause 7 of the Fertilizer (Control) Order, 1985. Clause 7 mandates that “...no person shall offer for sale or carry on the business of selling the Fertilizer at any place except in accordance with the terms and conditions of the Certificate of the Registration granted under Clause 9. The Appellant / Accused though said to be dealing in conventional Fertilizer, necessarily has to obtain the Certificate as contemplated under the Fertilizer Control Order. So that, Fertilizer that he sells is of the standard prescribed. The Appellant / Accused has not produced any such Registration Certificate nor has produced any application that he had taken steps for registering himself. 17. Learned counsel for the Appellant / Accused has submitted that P.W.4 has not followed the procedure in taking the sample and he has not prepared any Mahazar or Report for taking the Sample. It is further contended that in the absence of any such special Report or any Mahazar with regard to taking of sample, it cannot be stated that P.W.4 has taken the sample following the procedure as contemplated under the Fertilizer (Control) Order, 1985. Learned counsel for the Appellant / Accused has drawn the attention of the Court to Clause 6 of Schedule II Part A of the Fertilizer (Control) Order, 1985, which deals with PREPARATION OF TEST SAMPLE AND REFERENCE SAMPLE. As per Clause 6, three samples are to be taken and as per Clause (iv), “one sample so sealed shall be sent to the In-charge of the Laboratory notified by the State Government under Clause 29 or Central Fertilizer Quality Control and Training Institute, Faridabad for analysis and the second given to the manufacturer or dealer or the purchaser as the case may be. The third sample shall constitute the reference sample and shall be sent by the inspector to his next higher authority for keeping in safe custody for production in Court, if required.” It is contended that such a procedure in taking the sample was not followed, which has caused serious prejudice to the Accused in exercising his right in sending the sample for further analysis. Contending that non-compliance of the procedure for taking the sample and handing over one such sample to the Accused to enable him to exercise his right has caused serious prejudice, learned Counsel for the Appellant / Accused has sought to draw analogy from Prevention of Food Adulteration Act. In support of his contention, he has relied upon the decision reported in MUNICIPAL CORPORATION OF DELHI ..VS.. GHISA RAM (1967 CRL L.J. 939) and S. ARUNACHALAM AND OTHERS ..VS.. STATE REPRESENTED BY THE INSPECTOR OF POLICE, TIRUNELVELI (1993 L.W.(CRL) 211). Prevention of Food Adulteration Act is a self-contained one in which strict procedure is contemplated for taking sample. Very valuable right is conferred by Sec.13(2) of the Act on the Vendor to have the sample given to him analysed by the Director of the Central Food Laboratory. This case arising out of Fertilizer (Control) Order, punishable under the provisions of Essential Commodities Act, no parallel could be drawn. 18. Schedule II of the Fertilizer (Control) Order contemplates the procedure for drawing the Samples of Fertilizers. Clause 6 of Schedule II of the Fertilizer (Control) Order deals with Preparation of Test Sample and reference Sample. The procedure contemplated for taking the sample can only said to be directory and not mandatory as envisaged under the Food Adulteration Act. The non-compliance of the procedure for taking the test sample under Clause 6 of Schedule II Part-A, cannot vitiate the process of taking the sample and the Conviction thereon. 19. Further, this Court is not going into the details of the procedure prescribed for taking the sample. The Accused person can insist for compliance of the procedure for taking the Test Sample and Reference Sample only if he is a Dealer within the meaning of Sec.2(f) of the Fertilizer (Control) Order. 19. Further, this Court is not going into the details of the procedure prescribed for taking the sample. The Accused person can insist for compliance of the procedure for taking the Test Sample and Reference Sample only if he is a Dealer within the meaning of Sec.2(f) of the Fertilizer (Control) Order. Under Sec.2(f), “Dealer” means a person carrying on the business of selling fertilizers, whether wholesale or retail, or industrial use and includes a manufacturer and a pool handling agency carrying on such business and the agents of such person, manufacturer importer or pool handling agency, who had obtained the Registration Certificate for dealing in Fertilizer. In this case, the Accused is neither a Dealer nor has even applied for obtaining the Registration Certificate for dealing in Fertilizer. In fact, even according to him, he has been dealing in conventional methods of making Fertilizers and selling. It is also relevant to note that on the Complaint received from P.W.1, firstly case was registered only for the offence of Cheating under Sec.420 I.P.C in Crime No.925/89 under Ex.P.6-F.I.R. When the Appellant / Accused is neither the Dealer nor has applied for obtaining the Registration Certificate for dealing in Fertilizer, cannot insist upon the compliance of the procedure in taking the sample. 20. In consideration of the evidence and other circumstances, learned Special Judge has rightly found the Accused guilty for contravention of clauses 5,7 and 13 of the Fertilizer (Control) Order, 1985. For the Contravention of clauses 5,7 and 13 of the Fertilizer (Control) Order, 1985 learned Special Judge has only imposed a minimum Sentence of Three months Simple Imprisonment, which is neither harsh nor unreasonable warranting interference. This Appeal has no merits and the same is bound to fail. 21. C.A.No.124 of 1998:- Therefore, the Judgment (dated 31.12.1997) passed in S.T.C.No.5 of 1996 by the Special Judge for Essential Commodities / NDPS Act, Coimbatore for the Contravention of Clauses 5,7 and 13 of the Fertilizer (Control) Order, 1985 punishable under Section 7(1)(a)(ii) of the Essential Commodities Act 1955 and the sentence of Three months Simple Imprisonment on Three counts and to pay a fine of Rs.1000/- each on Three counts are confirmed and this Appeal is dismissed. 22. Since the Appellant/Accused is on bail, the Trial Court is directed to secure the custody of the Appellant/Accused and make him to undergo remaining period of sentence.