JUDGMENT : 1. Aggrieved by the conviction and sentence imposed on him under Clause 19(1)(a) of Fertilizer (Control) Order, 1985 read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 in C.C. No. 13 of 1994 by the judgment dated 25-11-1997 of the Special Judge under the Essential Commodities Act (Sessions Judge), Guntur, the third accused preferred the present appeal. 2. The facts leading to the appeal are that the Agricultural Officer (Inputs), Ponnuru, who was declared as Fertilizer Inspector, had drawn the sample of single super phosphate 16% from the first accused dealer's shop at Ponnuru on 23-12-1991 as per the procedure laid down in Fertilizer (Control) Order, 1985. One portion of the sample was sent to F.C.O. Lab, Ananthapur for analysis, the second portion was handed over to the first accused under a mediatornama and the third portion was retained with the Agricultural Officer. The Assistant Director of Agriculture (F.C.O.) Lab, Ananthapur, notified as Analytical Chemist, duly analysed the sample as per the prescribed procedure and declared it as not according to specification, as the active ingredient P205 is 15.02% as against 16% guaranteed nutrient material. The report was communicated to the Agricultural Officer, Ponnuru and Assistant Director of Agriculture, Tenali by registered post with a covering letter and the copies of the analysis report were served on the three accused under acknowledgement by the Agricultural Officer. The non-standard single super phosphate 16% was manufactured by the third accused, distributed through second accused and dealt with by the first accused as dealer. The accused were called upon to submit their explanations and they were prosecuted under Clause 19(1)(a)(c)(ii) and (iii) of the Fertilizer (Control) Order, 1985 read with Sections 7 and 8 of the Essential Commodities Act. After the case filed by the Assistant Director of Agriculture (R), Ponnuru was taken on file and the accused entered appearance, charges under Clause 19(1)(a)(c)(ii) and (iii) of the Fertilizer (Control) Order, 1985 read with Sections 7 and 8 of the Essential Commodities Act were framed against the accused, to which they pleaded not guilty. P.Ws. 1 to 5 were examined and Exs.P-1 to P-15 and Ex.D-1 were marked. During their examination under Section 313 of the Code of Criminal Procedure, the first accused claimed that he was selling the fertilizer bags in the same state in which they were received. P.Ws. 1 to 5 were examined and Exs.P-1 to P-15 and Ex.D-1 were marked. During their examination under Section 313 of the Code of Criminal Procedure, the first accused claimed that he was selling the fertilizer bags in the same state in which they were received. The second accused stated that he was supplying the fertilizer bags to the dealer as they were. The third accused stated that after testing the fertilizer in the company's laboratory and after finding it to be in conformity with the Fertilizer Control Order, then only the standard material was supplied to the distributors in high density polythene bags. 3. The trial Court in the impugned judgment found that P.W. 1 was competent to draw the sample and that the sample was found to be non-standard. It also held that the sample was drawn by following the proper procedure and held the laboratory reports of the third accused and the test reports issued by the Government of Tamil Nadu relied on by the third accused to have not been shown to be relating to the same batch of fertilizer bags that were supplied to the first accused. It concluded that the manufacturer of the fertilizer, the third accused, could not have sold or distributed any fertilizer which is not of prescribed standard, and absolved the first and second accused of the criminal liability, as the second accused merely forwarded the bags in question to the first accused and the first accused stored the bags properly and sold them. The first and second accused were held to be having no possibility to meddle or tamper with the machine stitched high density polythene bags of fertilizer and hence it acquitted them. However, the trial Court found that the third accused, who manufactured the sub-standard fertilizer in violation of the stated provisions of law, was guilty of the offence with which he was charged, and considering the plea of the third accused that he is only an employee in the industry, imposed a sentence of simple imprisonment for a period of three months and a fine of Rs. 500/- with default sentence of simple imprisonment for one week. 4. 500/- with default sentence of simple imprisonment for one week. 4. The third accused filed this appeal contending that the procedure prescribed for taking and keeping the samples, was not followed as seen from the evidence of P.W. 1 The identity of the samples being the same that were seized and taken, was not established and P.W. 1 without requisite qualifications is incompetent to speak about the quality of fertilizers. The possibility of moisture contents at 16% could be due to the result of exposure and there was no evidence from P.W. 2 that the tested samples were kept away from exposure to moisture. There was no evidence that the seized samples were the same that were sent by the third accused to the second and first accused and the admission of P.W. 1 that the contents will decrease in P205 by efflux of time was overlooked. Ex. P-3 did not refer to any instrument or probe used for drawing the sample and the probe was not produced by P.W. 1 Exposure to air and light would have caused the decrease in P205 content. As the fertilizers were supplied on 03-10-1991 under Ex. P-7 and as the panchanama under Ex.A-6 was conducted on 31-01-1992 after about four months, both could not be presumed to be the same. There was delay of 13 days in sending the samples to analyst, which is fatal and having acquitted the first and second accused, the third accused could not have been convicted. Fertilizer (Control). Order, 1985 has no application to the facts and the explanation tendered by the third accused should have been accepted. Therefore, the third accused sought for upsetting the conviction and sentence. .5. Sri A.T.M. Ranga Ramanujam, learned Advocate for the third accused/appellant vehemently argued that not impleading the manufacturing company and prosecuting only the production manager of the manufacturing company as third accused, is fatal to the prosecution. He contended that the responsibility of production manager was not spelt out in the evidence and non-supply of analysis report to the third accused caused prejudice and was in violation of Clause 30(3) of the Fertilizer (Control) Order, 1985. He contended that the responsibility of production manager was not spelt out in the evidence and non-supply of analysis report to the third accused caused prejudice and was in violation of Clause 30(3) of the Fertilizer (Control) Order, 1985. He also relied on the defects in taking the samples in violation of the prescribed mandatory procedure as vitiating the prosecution and further argued that the very process adopted for taking the samples by pouring them either on clean floor or in polythene bags and the manner in which they were packed and sent, gave scope for variance in the composition due to vagaries of nature. He also emphasised that there was no proof that the same fertilizers sold by the third accused were the fertilizers from which the samples were taken. Therefore, he stated the conviction and sentence to be unsustainable. 6. Sri C. Nageswara Rao, learned Public Prosecutor defended the judgment of the trial Court as being in conformity with the positive evidence adduced by the prosecution, and argued that taking and forwarded of the samples and their analysis were in accordance with the prescribed procedure and the substandard fertilizer manufactured by the third accused must lead to appropriate punishment. He also argued that the plea about not impleading the manufacturing company was not taken before the trial Court and cannot be permitted to be raised in the appeal. Hence, he sought for maintaining the judgment in question. 7. The points that arise for consideration in this appeal are: 1. Whether the prosecution is unsustainable against the third accused without prosecuting the manufacturing company? 2. Whether the prosecution should fail due to violation of the prescribed procedure under Fertilizer (Control) Order, 1985? 3. Whether the impugned judgment is unsustainable? Point No. 1: 8. The positive case of the prosecution is that M/s. Kothari Industrial Corporation Limited Fertilizer Division, Ennore, Madras is the manufacturer of the fertilizer single super phosphate 16% involved in this case, which samples were taken at the shop of the dealer, the first accused, from the material supplied to him by the second accused distributor, who in turn received the same from the manufacturing company, the production manager of which is the third accused. 9. The Agricultural Officer as P.W. 1 stated that he found the fertilizer bags to be tallying with the stock register and to be in tact and machine stitched. 9. The Agricultural Officer as P.W. 1 stated that he found the fertilizer bags to be tallying with the stock register and to be in tact and machine stitched. That apart, there was nothing in the evidence of P.W. 1 or the Assistant Director of Agriculture, who filed the complaint, as P.W. 3 to show how the production manager of the manufacturing company was responstble for the offence. The retired Assistant Director of Agriculture, who issued show cause notice to accused No. 1, as P.W. 4, only stated that the third accused (the company) is the manufacturer of the fertilizers in question. Ex. P-15 explanation submitted by the manufacturing company to the show cause notice, was not sent by the production manager Sri Srinivasan, who is now prosecuted, but was authenticated by somebody else for the company. 10. Section 10 of the Essential Commodities Act, 1955, which provides for offences by the companies, is as follows: “10. Offence by companies - (1) if the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contraventions. (2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation- For the purposes of this section— (a) “Company” means any body corporate, and includes a firm or other association of individuals, and (b) “director” in relation to a firm means a partner in the firm”. 11. Explanation- For the purposes of this section— (a) “Company” means any body corporate, and includes a firm or other association of individuals, and (b) “director” in relation to a firm means a partner in the firm”. 11. It is obvious that only a person, who at the time the contravention was committed was in charge of and was responsible to the company, could be proceeded against for any contravention of an order made under Section 3 of the Essential Commodities Act, apart from the company itself. Such person also has an opportunity of proving that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. A director, manager, secretary or other officer of a company shall also be liable to be proceeded against in case there is proof that the committal of the offence was with the consent or connivance of or is attributable to any neglect on the part of such person. Section 10 sub-section (1) deemed such person as well as the company to be guilty of the contravention and the provisions of Section 10 were interpreted uniformly by judicial precedents, the attention to which was invited by the learned counsel for the appellant. 12. In Sham Sundar v. State of Haryana, 1989 (2) C.L.R. 623, the Supreme Court pointed out that the penal provision must be strictly construed in the first place and secondly there is no vicarious liability in criminal law unless the statute takes that also within its fold. The Supreme Court observed: “It is significant to note that the occasion for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established i.e. that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted.” 13. In the absence of any such proof, no partner could be convicted.” 13. While that was a case of a partnership firm, in The State of Madras v. C.V. Prekh, (1970) 3 SCC 491 : AIR 1971 SC 447 the Supreme Court was dealing with a case where there was no evidence on record from which it could be inferred that the two individuals prosecuted as responsible for the company had any knowledge of the sale of commodities in question or that they took part in the negotiations for sale or in the sale itself. Referring to the provisions of Section 10 of the Essential Commodities Act, 1955, the Supreme Court held that when the company was not charged with the offence at all and there was no evidence and finding that the company contravened any Control Order, no individuals can be held responsible, as the liability of the persons in charge of the company only arises when the contravention was by the company itself. 14. In G.S. Nagpal v. State of Punjab, 1994 (1) C.LR. 128 it was held that from Section 10 of the Essential Commodities Act, 1955, “it is very well made out that when the offence is committed by a Company then the Company is responsible, so also the person Incharge of and responsible to the Company for the conduct of its business. Non-arraigning of the Company as an accused person in such circumstances is fatal infirmity in the prosecution of the Managing Director of the Company alone”. In that case also, there are no averments in the complaint that the person prosecuted was Incharge of and was responsible to the company for the conduct of its business-nor the Company was arraigned as accused and it was held that the complaint against him, therefore, cannot proceed on that ground alone. 15. In S.H. Chisty v. State of Haryana, 1998 All India Prevention of Food Adulteration Journal 313 considering a case arising under Fertilizer (Control) Order, 1985, it was pointed out that Clause 24 thereof prescribed that every manufacturing organisation shall appoint in that organisation and in consultation with the Central Government, an officer, who shall be responsible for compliance with the provisions of the Order. It was further held that the plain reading of Section 10 would show that a person responsible for the manufacturing unit individually cannot be prosecuted without adding the company as an accused. The Court differed from a contrary view taken by another learned Single Judge in M.N. Murli Kumar v. State of Punjab, 1997 (1) FAC 3. 16. No judicial pronouncement laying down any contrary principle has been placed before this Court and in the light of the admitted fact that M/s. Kothari Industrial Corporation Limited, Fertilizer Division, Ennore, the manufacturer of the fertilizer in question, is not prosecuted in this case and the production manager of the manufacturer alone is prosecuted, the prosecution against the production manager alone is unsustainable in law. Even otherwise, there is neither allegation nor proof that Sri Srinivasan, the production manager was appointed by the manufacturing organisation in consultation with the Central Government to be responsible for the compliance of the Fertilizer (Control) Order, 1985 in accordance with Clause 24 thereof nor is there any allegation or proof that even otherwise, independent of the existence of any such appointment or not, Sri Srinivasan, the production manager was in charge of and was responsible to the company. There is equally no allegation or proof that the alleged contravention took place with his knowledge and could have been avoided if he exercised all due diligence. There was no opportunity for Sri Srinivasan, the production manager to prove the alleged contravention to be without his knowledge or that he exercised all due diligence to prevent such contravention. Under such circumstances, his prosecution as if he was responsible and answerable for and was in charge of the manufacture of the fertilizer in question, is unjust and illegal. 17. The contention of the learned Public Prosecutor that this plea was not raised before the trial Court and is, therefore, incompetent to be raised herein, cannot be accepted, as it is a pure principle of law arising out of undisputed and admitted facts. The aspect, not brought to the notice of the trial Court by either party, was consequently not considered. But when once the issue is raised in the appeal and is found to be leading to an inescapable conclusion of the unsustainability of the prosecution, the same cannot be refused to be considered. Hence, irrespective of other considerations, the prosecution is unsustainable on this ground alone. But when once the issue is raised in the appeal and is found to be leading to an inescapable conclusion of the unsustainability of the prosecution, the same cannot be refused to be considered. Hence, irrespective of other considerations, the prosecution is unsustainable on this ground alone. Point No. 2: 18. Fertilizer (Control) Order, 1985 specifically laid down the procedure for drawal of samples of fertilizer in Schedule II, Part-A read with Clauses 28(1)(b) and 29, which was extracted in the judgment of the trial Court and the methods of analysis of fertilizer was laid down in Part-B thereof. 19. P.W. 1, the Agricultural Officer, who drew samples, stated that he draw the samples through probe from bags bearing Nos. 53,106 and 159 and poured about two kgs. from each bag on a clean floor, mixed all the material, divided into four parts, took two opposite samples, mixed then again following the quartering method and then took three samples of about 500 grams each into polythene bags, tied them with twin, thread, put them in separate tins, put Form-K in the tins and sealed the tins. He claimed that then he wrapped the sealed tins in brown paper and made was sealing and so on. He admitted during cross-examination that in Ex. P-3 panchanama, a recital was made that the composite sample is prepared after pouring the material on a polythene paper, whereas in his chief-examination he stated that it was poured on a clean floor. The trial Court noted that the witness was giving prevaricative versions as regards the nature of tins in which the samples were kept, after keeping them in polythene bags. P.W. 1 further admitted that as per the Fertilizer (Control) Order, the sample should be kept in a suitable, clean dry and air-tight glass or screwed hard polythene bottle of about 400 grams capacity. He further admitted that as the said bottles were not supplied by Government, they were drawing the samples in thick polythene bags and keeping them in metal tins. He also admitted that passage of time will result in decrease of P205 content in the SSP or if it is exposed to vagaries of weather, it would result in a wrong analysis. The mediator for Ex. He also admitted that passage of time will result in decrease of P205 content in the SSP or if it is exposed to vagaries of weather, it would result in a wrong analysis. The mediator for Ex. P-3 panchanama as P.W. 5 stated that he did not observe from which bag or with which instrument the Agricultural Officer took out the sample and he did not observe in what method the Agricultural Officer took the sample. In fact, he stated that he had not seen anything at to what was happening inside the shop. These admissions and discrepancies in the evidence for the prosecution were noted by the trial Court, but it was thought that due to lapse of time, discrepancies may arise and whether it is on a polythene bag or on a floor the mixing of samples was at a clean place. The trial Court also relied on the absence of any complaint by the first accused in whose presence the samples were taken, about P.W. 1 not following the prescribed procedure. But the first accused cannot be attributed with the knowledge of the intricacies involved in the procedure prescribed for drawal of samples of fertilizer. The mandatory procedure under Schedule II. Part-A of Fertilizer (Control) Order, 1985 was specified in great detail due to the scope for variation in the composition of the fertilizer samples even due to very minor causes and insignificant deviations. 20. In District and Sessions Judge, Guntur v. State of A.P. 2000 (1) ALT (Crl.) 103 (D.B.) (A.P.), a Division Bench of this Court while upholding the constitutionality of Fertilizer (Control) Order, 1985, laid down. “(2) The time schedule for sending the sample to the Laboratory and Laboratory sending the report to the Officer and the furnishing of the report to the Accused have got to be scrupulously followed and any violation will defeat the prosecution; and (3) Within one week of the receipt of the report of the Analyst, the accused can exercise the right to get the sample in his custody tested by an independent Analyst and if he exercises that option, the Officer concerned has got no discretion and is bound to send the sample with a requisition that within 60 days of the receipt of the same, the said Analyst has to send his report.” 21. Similarly, in Jarnal Singh v. State, 1998 All India Prevention of Food Adulteration Journal 433, it was observed: “Procedure for taking sample had been laid down in Schedule-II of the Fertilizer Control Order, 1985 and the provisions are mandatory. Nothing has been shown that the procedure was actually followed. Unless it is specifically alleged that the petitioner was the owner he could not be proceeded with under the Essential Commodities Act. There could not be a joint trial under the provisions of Essential Commodities Act of the alleged manufacturer or Vendor or Distributor. They can only be tried if allegations are made that they have connecting links between them so as to constitute the same transaction. This link is absolutely missing in the case”. 22. In Jarnal Singh v. State, 1988 (2) Crimes 33 also the argument was that the sample was not put in a suitable clean, dry and air-tight glass or other suitable container and that merely putting the sample in 3 polythene bags was not sufficient and did not conform to the mandatory rules. The Court concluded. “I have gone through the requirements of schedule II of the aforesaid Order wherein there is a definite provision that a sample has to be placed in a suitable clean, dry and air-tight glass or other suitable containers and stored in shade. It is not disputed by the counsel for the respondents that samples were taken in polythene bags in the present case. As per Clause 4(2). (ii) of the said Schedule II, each test sample shall be immediately transferred to a suitable container as described under Secs. 1(e) and 1(f), provided with a tight fitting stopper or lid so that the original composition of the fertilizer remains unchanged. In the present case, the sample was taken on 5-8-1980 and the First Information Report was registered only vide letter dated 12-7-1982. Testimony of Tejwant Singh (P.W. 2) does not satisfy the requirements of clauses (e) and 1(f) of Schedule II”. 23. In State of Punjab v. Ashok Kumar, 2004 (2) FAC. 196 after extracting Part-A of Schedule II of the Fertilizer (Control) Order, 1985 the Court observed: “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. 23. In State of Punjab v. Ashok Kumar, 2004 (2) FAC. 196 after extracting Part-A of Schedule II of the Fertilizer (Control) Order, 1985 the Court observed: “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 P.W. 1 has not deposed that before drawing the sample, he had followed the safeguard laid down in 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.” 24. Likewise in State of Punjab v. Karam Chand, 1992 (3) Recent Crime Reports 365 after setting out the provisions of Schedule 11, it was held that it is a mandatory provision of law which requires to be complied with strictly. On facts of that case, it was held that there was no evidence that the polythene bags were provided with tight fitting stoppers and that the polythene bags used by the Agricultural Inspector for sealing the sample cannot be equated with suitable air-tight glass or other container as envisaged in Rule 1 of Schedule II and the possibility of the sample getting decomposed causing change in the result, on account of the failure of the Agriculture Inspector in taking the samples in accordance with the said Rule, cannot be ruled out. Hence, it was held that the prosecution cannot be said to have proved the case against the respondents therein beyond a shadow of reasonable doubt. 25. Hence, it was held that the prosecution cannot be said to have proved the case against the respondents therein beyond a shadow of reasonable doubt. 25. Applying the principles of these decisions relied on by the appellant to the facts of the present case, it is clear that the admissions of P.W. 1 about the manner in which he has drawn the samples, do not indicate compliance with the prescribed mandatory procedure and consequently the deviation from the prescribed procedure resulting in possible change of composition of the samples and the consequential inadequacy found in analysis cannot be dismissed as improbable. Such non-compliance with the prescribed procedure should result in a reasonable doubt to the benefit of the accused. The reports of the laboratory of the manufacturing company filed along with Ex. P-15 and the test certificates issued by the Government of Tamil Nadu showing the results of the analysis to be in conformity with the standards prescribed under Fertilizer (Control) Order, 1985, further strengthen the doubt notwithstanding minor discrepancies noted by the trial Court and the absence of proof that the fertilizers involved in sampling belong to the same batch of manufacture. The alleged non-supply of the prescribed containers by the Government cannot prejudice the cause of the accused. 26. The third accused also complains about not receiving any copy of analysis report, on which the prosecution is based, and further alleges that the first accused is not their dealer as seen from Ex. P-15. Of course, the learned counsel for the appellant did not press the objection about the competency of P.W. 1 to draw the samples and the delays in sending the samples for analysis, communication of analysis report, etc., and has stated that the plea of limitation is not being insisted. 27. Absence of communication the result of analysis to the manufacturer is violation of Clause 30(3) of the Fertilizer (Control) Order, 1985, but it is seen from Exs.P-12 and P-15 read together that while the prosecution alleged to have enclosed a copy of the analysis report, the manufacturing company denied receiving the same Irrespective of these and other minor circumstances relied on by the third accused as vitiating the prosecution, the prosecution cannot be sustained when the process of sampling was not in accordance with the prescribed mandatory procedure. Point No. 3: As the manufacturing company was not prosecuted along with the production manager as the production managar was not alleged or proved to be having the knowledge of or to be responsible for the contravention and as the samples were not drawn in accordance with the prescribed mandatory procedure, the third accused is entitled to seek-exoneration from any criminal liability for the reasons discussed in detail above and consequently the conviction and sentence, to which he was subjected by the impugned judgment, have to be set aside. 28. In the result, the third accused/appellant is not found guilty under Clause 19(1)(a) of Fertilizer (Control) Order, 1985 punishable under Section 7(1)(a)(ii) of Essential Commodities Act and hence, he is acquitted. The judgment of the Special Judge under Essential Commodities Act (Sessions Judge), Guntur in C.C. No. 13 of 1994 dated 25-11-1997 in so far as the finding of guilt, conviction and sentence against the third accused are concerned, is set aside and the appeal is allowed accordingly. The bail bonds of the third accused/appellant shall stand discharged.