C. K. BUCH, J. ( 1 ) PRESENT appeal is filed against the judgment and order of conviction and sentence dated 20th February, 1993 rendered by the learned Special Judge, Mehsana in essential Commodities Case No. 7 of 1991 for violating the provisions of Section 19 (1) of fertilizer Control Order and under Sections 3 and 7 of the Essential Commodities Act. ( 2 ) MR. P. K. JANI, learned Advocate for the appellants has taken me through the relevant part of the oral as well as documentary evidence recorded by the presiding Judge while dealing with the criminal Case and tried summarily. To appreciate the say of Mr. Jani and learned a. P. P. , Mr. Desai, it would be proper for the court to state the prosecution case in brief. 2. 1 That on 18th August, 1990, the complainant-Agricultural Inspector, Ramabhai joitaram Patel had visited the premises of gungdipati Seva Sahakari Mandali Limited, patan (hereinafter referred to as cooperative Society ) and had drawn sample of chemical fertilizer Single Super Phosphate fertilizer (granules) having trade mark of ship manufactured by accused No. 1-Company and same was stored for distribution amongst the members of the cooperative society. The standard of the material mentioned on the bag containing this super phosphate chemical fertilizer is 16% P2o5 water soluble. It is the say of the complainant that accused No. 2 is concerned with the activity of manufacturing and marketing of this fertilizers. At the time of visit / inspection, 193 bags of super phosphate chemical fertilizer were lying in the premises of the co-operative society and the complainant-Inspector had drawn the sample by selecting bags as per the norms fixed. This sample was marked as Sample no. 31/90-91 and was sent to Government approved authorized Laboratory for analysis at Gandhinagar. The Laboratory after analyzing the said fertilizer has declared the aforesaid sample as "sub-standard". In the aforesaid sample of fertilizer, in jaldravya, the ratio of P2o5 should be 16%. However, instead of that it was found 14. 60% and percentage of wetness should be 5% instead of that it was found 5. 05. In the same way as per the provisions the moisture upto 5 % is permissible which was found 5. 05% meaning thereby the moisture was found 0. 05% more. The sample was drawn in the presence of the person, who was employee of the co-operative society. 05. In the same way as per the provisions the moisture upto 5 % is permissible which was found 5. 05% meaning thereby the moisture was found 0. 05% more. The sample was drawn in the presence of the person, who was employee of the co-operative society. It is also alleged that sample was drawn in accordance with law and as per the procedure prescribed under the provisions of Fertilizer Control order. The sample was drawn, tagged arid sealed in accordance with the scheme provided under the Fertilizer Control Order. Out of three samples which were sealed by the complainant, one was given to person present, the another one was sent to the higher authority so in case of need it can be produced before the Court during the course of trial and another one was sent for analysis to the Laboratory. The co-operative society was intimated about the finding and thereafter considering the nature of response given by the respondent-society, both the accused have been prosecuted, as the sample was drawn from a packed polythene container of the fertilizer. 2. 2 It is the say of the complainant and the prosecution that the entire stock was purchased by the co-operative society from accused No. 1. The order was placed with the distributor and it is alleged that the stock ultimately was dispatched to the co-operative society by the accused No. l. The prosecution has examined mainly three witnesses. Firstly, the prosecution witness No. l, who is the complainant, who has tried to prove the formalities, while drawing the sample and sending it for analysis to the Laboratory and other administrative aspects such as procedure after receipt of the laboratory report including obtaining the sanction for prosecution and filing of the complaint. He has also tried to prove the documents prepared by him and / or recovered during the drawing of sample and sending it for analysis. 2. 3 The second witness, who has been examined is Kanaiyalal Hargovandas rami. According to this witness, his son-Hiten is the owner of Ambica Marketing services situated at Mehsana and had sold 400 bags of vahan Chhap Super Phosphate danadar fertilizer to Gugadi Co-operative society Ltd. , Patan on 20th August, 1990. So, it can be said that sample was drawn after couple of days. It appears that by that time the sample was drawn out of 400 bags. So, it can be said that sample was drawn after couple of days. It appears that by that time the sample was drawn out of 400 bags. It also appears that certain number of bags were already distributed amongst the members and therefore 193 bags were lying with the co-operative society. The third witness, Jayantilal Tribhovandas Patel, who has been examined at Exh. 46, he was the secretary of the co-operative society and was serving for about five years and it is the say of the prosecution that the sample was taken in his presence. ( 3 ) THE order of conviction and sentence is assailed on various grounds and it is submitted that in view of the facts stated by the Secretary of the Co-operative Society vis-a-vis the method adopted by the complainant for drawing the sample, the court should hold that there is a clear violation of the mandatory provisions of the fertilizer Control Order. Ultimately, the fertilizer had reached to the co-operative society during thick moonson i. e. in the month of July, August and therefore, the presence of excess 0. 05 % moisture should not be viewed as an adulteration in the fertilizer or with any ulterior motive and when the sample was not drawn as per the procedure laid down in the law, so also, as per the scheme, the accused also cannot be linked with the crime for the alleged deficiency. ( 4 ) MR. JANI has concentrated his argument mainly on two legal aspects by placing reliance on the decision of the Apex court in case of STATE OF PUNJAB V/s. GUNO MAJRA CO OPERATIVE agriculture SERVICE SOCIETY limited, REPORTED IN JT 2000 (10) SC 47 that from the stock lying with the cooperative society from which the complainant had drawn sample was not a dealer or trader indulging in commercial business or activity and therefore his status was of a purchaser. It is true that complainant-Inspector can draw the sample from stock lying with the purchaser but the learned trial Judge had committed grave error impliedly treating the co-operative society as trader or a dealer. It is true that complainant-Inspector can draw the sample from stock lying with the purchaser but the learned trial Judge had committed grave error impliedly treating the co-operative society as trader or a dealer. The Apex court in this cited decision has observe that, "a perusal of Clause (2) (f) and Clause (7) of the Order shows that any person carrying on the business of selling of fertilizers has to obtain a certificate of registration which is to be granted under Clause (9) of the order. The respondent is the Agricultural service Co-operative Society and is registered under the Punjab Co-operative societies Act, 1961 and otherwise governed by the bye-law framed as per the scheme of the relevant Co-operative Societies Act. Before the Apex Court the respondent-cooperative society had disputed the fact alleged by the State of Punjab while resolving the dispute raised by the cooperative society that, "since the respondents-society is not carrying on any business in fertilizers, therefore, the society is not required to obtain a certificate of registration. " ( 5 ) ACCORDING to Mr. Jani, the manufacturer, dealer, purchaser, handling agency are very well described in the fertilizer Control Order, 1985 and therefore the co-operative society where the complainant had drawn the sample should be considered as purchaser. ( 6 ) THE appellants-accused were prosecuted for violating the provisions of section 19 (1) of Fertilizer Control Order and under Sections 3 and 7 of the Essential commodities Act. The appellant No. 1-Company was informed about the report of the public analysis and thereafter the appellant No. 1 had asked to forward the copy of report for responding to the intimation sent to the company. It is not a matter of dispute that the report was not supplied to any of the appellants. It was also requested that the sample should be reanalyzed at the central Laboratory but it was not granted, meaning thereby the request was not acceded to by the complainant. When the complainant was aware about all the details of manufacturer of the fertilizer and was known that he has drawn sample from a purchaser, he ought to have handed over the sample sealed by him on 18th August, 1990 at least to the trader i. e. Ambica Marketing services situated at Mehsana. The appellant no. When the complainant was aware about all the details of manufacturer of the fertilizer and was known that he has drawn sample from a purchaser, he ought to have handed over the sample sealed by him on 18th August, 1990 at least to the trader i. e. Ambica Marketing services situated at Mehsana. The appellant no. 1-Company could have taken trial of the sample having personal business type with trader, because one sample was lying with the superior authority. The accused No. l-Company could have been intimated that it can take necessary steps for getting the sample lying with the superior authority by seeking intervention from the Court if need be. ( 7 ) ON close reading of the papers produced by the prosecution, it is clear that no steps were taken by the complainant prior to filing of the complaint. The report of the public analyst ought not to have been accepted or received in evidence against the accused, because, it would result into serious prejudice to the accused. At least the prosecution would have examined the public analyst to add legal sanctity to the strength of the report because the report of public analyst analyzing the fertilizer does not fall in the category of the report, which can be received in evidence directly on its tendering by the complainant or any witness examined by prosecution who investigated the crime. ( 8 ) IN part-B of Schedule-II, method of analysis of fertilizer is referred to, where a detailed procedure is referred to form Sr. No. 1 to 3. Sr. No. 3 of the said procedure deals with determination of Nitrogen and relevant methods of analysis. There is nothing on record to show that the procedure as prescribed under Part-II of the method of Analysis was followed in present case. Neither the Agricultural Inspector has stated in his deposition that the method of analysis of fertilizer in Part-B is followed nor the evidence of the fertilizer analyst is called for. Merely, because a person is authorized by a Government to analyze fertilizer would not put that authority which can be equated with report referred to in Section 293 of the criminal Procedure Code. ( 9 ) UNDISPUTEDLY, the sample was drawn on 18th August, 1990. Merely, because a person is authorized by a Government to analyze fertilizer would not put that authority which can be equated with report referred to in Section 293 of the criminal Procedure Code. ( 9 ) UNDISPUTEDLY, the sample was drawn on 18th August, 1990. For the first time after receipt of report of the laboratory the Co-operative Society was served with the notice on 8th October, 1990 and the same was responded on 11th October, 1990 (Exh. 25 and 26 ). The bill of purchase was tendered by the Co-operative Society to the complainant is dated 20th August, 1990. After receipt of the reply of the notice from the co-operative Society, the Ambica Marketing services responded to the notice on 26th october, 1990. One document at Exh. 43 indicates that as per the say of Ambica marketing Services, they had purchased the stock of Super Phosphate (danadar chemical fertilizer) on 31st August, 1990. Meaning thereby the prosecution witness examined from Ambica Marketing Services, was required to explain in detail as to how postdated bill has been received by them qua stock lying with the purchaser co-operative society on 18th August, 1990. There is even the contradiction in the evidence of two witnesses examined by prosecution and it is difficult for the Court to reach to a definite conclusion that the entire stock of 400 bags were received at a stretch and in one lot. On the contrary, it emerges that entire stock probably had reached to the cooperative society in two to three different lots. The complainant has kept curtain on this crucial aspects while filing the complaint as well as giving evidence in his examination in chief. This part of evidence is very relevant because it would go to the root of the procedure adopted by the complainant-Inspector while drawing sample. It is the say of Prosecution Witness No. 3, Secretary of the Co-operative Society, examined at Exh. 46 in his deposition that 400 bags were received on two different dates at one place. Therefore, it can be said that bill though at exh. 43 is one, the Co-operative Society might have been given this 400 bags of the fertilizer in different lots or from different lots. 46 in his deposition that 400 bags were received on two different dates at one place. Therefore, it can be said that bill though at exh. 43 is one, the Co-operative Society might have been given this 400 bags of the fertilizer in different lots or from different lots. Bare words of the complainant that, he had adopted the procedure prescribed under the Fertilizer Control Order, would not be sufficient because the method of drawing sample would materially change if the stock from which the sample drawn is part of different lots. No details has been described by the complainant in this regard. For the sake of brevity and convenience, I would like to reproduce the the relevant part from the schedule II of the order dealing with the procedure prescribed for drawing the sample. PROCEDURE FOR DRAWAL OF SAMPLES OF FERTILISERS 1. General Requirements of sampling: in drawing sample, the following measures and precautions should be observed: (a) xxx (b) The sampling instruments shall be clean and dry when used; (c) xxx (d) xxx (e) 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. This should be put in a cloth bag which may be sealed with the Inspector s seal after putting inside the detailed description as specified in [form P]. Identifiable details may also be put on the cloth bag like sample No. / code No. or any other details which enables its identification; (f) Each sample bag should be sealed air tight after filling and marked with details of sample, [any type of fertiliser] and the name of Inspector who has collected sample. 2. Sampling from Bagged Material: (i) Scale of sampling (a) LOT (FOR MANUFACTURERS ).-All bags in a single consignment of the material of the sample grade and type drawn from a single batch of the manufacture shall constitute a lot. If a consignment is declared to consist of different batches of manufacture, all the bags of each batch shall constitute a separate lot. In the case of consignment drawn from a continuous process, 2000 bags (or 100 tonnes) of the material shall constitute a lot. If a consignment is declared to consist of different batches of manufacture, all the bags of each batch shall constitute a separate lot. In the case of consignment drawn from a continuous process, 2000 bags (or 100 tonnes) of the material shall constitute a lot. (b) LOT (FOR DEALERS ).- The lot is an identifiable quantity of same grade and type of fertiliser stored at an identifiable place subject to a maximum limit of 100 tonnes. The lot shall be identified by the inspector based on visible appearance of bags, their packing and storage conditions. The stock of less than 100 tonnes with a dealer may also constitute one or more lots, if the material (fertiliser) of different sources and brand is available in such quantities. (c) xxxxx the number of bags to be chosen from a lot shall depend upon the size of the lot as follows. Lot size (Number of bags) (N) Number of bags to be selected for sampling (n) Upto 10 1 11-100 2 101-200 3 201-400 4 (ii) Sampling from big godowns / high stacking.-If the procedure given in Para-2 (i) (c)is not possible to be adopted, the sample should be drawn from the randomly selected fertiliser bags from different layers, from top and from all open sides in zig zag fashion. (iii) Sampling from small godowns.-All the fertiliser bags of the same grade and type of each manufacturer though received on different dates shall be segregated and properly stacked. All bags of same grade and type of fertiliser manufactured by a particular manufacturing unit may be considered as one lot based on their physical conditions and the sample shall be drawn as per procedure laid down in paras. 2 (i) (c) and 4. (iv.) Sampling from the damaged stock.-a. xxxxxxxxxx b. xxxxxxxxxx 3. Sampling Probe: (i) xxxxxxx (ii)xxxxxxx 4. Drawal of samples from bags: drawal of sample and preparation of composite samples. Draw, with an appropriate sampling instrument, (sampling probe) small portions of the material from the selected bags as per procedure in paras. 2 (i) (b), 2 (ii), 2 (iii) and 2 (iv) (a ). Sampling Probe: (i) xxxxxxx (ii)xxxxxxx 4. Drawal of samples from bags: drawal of sample and preparation of composite samples. Draw, with an appropriate sampling instrument, (sampling probe) small portions of the material from the selected bags as per procedure in paras. 2 (i) (b), 2 (ii), 2 (iii) and 2 (iv) (a ). The sampling probe shall be inserted in the bag from one corner to another diagonally and when filled with fertilser, the probe is withdrawn and fertiliser is emptied in a container / or on polythene sheet / or on a clean hard surface and made into one composite sample. If, the bags do not permit the use of sampling probe to empty the contents of the bags on level, clean and hard surface and draw a composite sample by the process of quartering as described under Para. 3 (ii) or 5. In case of chelated micronutrients and mixtures of micronutrients, the three identical containers of the batch, grade, type and manufacture, shall be selected which shall constitute the composite samples, provided it is not possible to draw a composite sample of the size given under para. 4-A (iii);] 5. Preparation of composite sample: if the composite sample collected from the different selected bags is larger than [required weight], its size shall be reduced by method of quartering as detailed below,-Spread composite sample on a level, clean, hard surface, flatten it out and divide it into four equal parts. Remove any diagonally opposite parts. Mix the two remaining parts together to form a cone, flatten out the cone and repeat the operation of quartering till a composite sample of [required weight] is obtained. 6. Preparation of test sample and reference sample: the composite sample obtained above shall be spread out on a clean, hard surface and divided into three approximately equal portions [each of the weight as specified in para. 8] Each of these samples shall constitute the test sample. Each test sample shall be immediately transferred to a suitable container as defined under Para. 1 (e ). The slip with detailed description may be put inside the sample bag. Each bag shall also be properly labelled as mentioned in Para 1 (f)Each test sample container shall then be sealed with the seals of the inspector. If possible, seal of the manufacturer/dealer or purchaser as the case may be, may also be affixed. 1 (e ). The slip with detailed description may be put inside the sample bag. Each bag shall also be properly labelled as mentioned in Para 1 (f)Each test sample container shall then be sealed with the seals of the inspector. If possible, seal of the manufacturer/dealer or purchaser as the case may be, may also be affixed. Out of three samples collected, one sample so sealed shall be sent to the in-charge of the Laboratory notified by the State government under C1. 29 or Central fertiliser Quality Control and Training institute, Faridabad or Regional Fertiliser control Laboratories at Mumbai, Chennai or kalyani (Kolkata) for analysis. Another sample shall be given to the manufacturer or importer or dealer or the purchaser, as the case may be. The third sample shall be sent by the Inspector to his next higher authority for keeping in safe custody. Any of the latter two samples may be sent for reference analysis as provided for under sub-clause (2) of C1. 29-B;] ( 10 ) WHEN the complainant is authorized to draw the sample from dealer as well as purchaser then it was not impossible for him to intimate all the three simultaneously about the finding recorded by the Public Analyst and asking them to explain about the situation emerging from the finding recorded by the analyst. It is provided that within 30 days such intimation should reach and in the present case as admitted by the complainant, the appellants were not intimated within 30 days about the finding recorded by the public analyst. There is evidence that entire stock was not received by purchaser-Co-operative Society on one day and the lot has not been explained by the scheme qua "purchaser". The method of collecting sample adopted whether should be accepted as method as per Rule was a question to be answered and it is not possible to say the same has been satisfactorily answered. ( 11 ) CONSIDERING the nitty-gritty of entire scheme of the Fertilizer Control order, the Agricultural Inspector if is intended to target one of the persons for instituting prosecution, then he can send report of analysis to anyone. All these three should prosecute the person or a company other than a person who has been intimated about the finding received by the public analyst. All these three should prosecute the person or a company other than a person who has been intimated about the finding received by the public analyst. It was not impossible for the complainant to institute prosecution against the co-operative society or a person responsible for distributing the substandard fertilizer amongst the members. In the same way, it was also possible for the complainant to prosecute Ambica Marketing Services being a dealer of the fertilizer without sending report of the public analyst. When the complainant has not prosecuted either co-operative society or Ambica Marketing services with appellants, then non-sending of the report of public analyst within 30 days to the company and in-action qua the demand made by the complainant-company requesting reanalysis with Central laboratory has resulted some prejudice to the defence. ( 12 ) THE method of drawing sample is also not satisfactorily proved. The person present at the time of drawing sample has not been examined. The Secretary himself was not present when the sample was taken from the storage area. When Panchas were not present at the time of drawing sample, then finding recorded by the public analyst if is required to be used against the accused persons, then all reasonable opportunity ought to have been accorded well in time i. e. in first 30 days. ( 13 ) SO, the Court is of the view that though the dates are proximate and the stock lying with the co-operative society was not an old stock, the accused No. 1-company deserves to be given the benefit of doubt. ( 14 ) IT would not be safe to link the accused No. 2 with the crime when accused no. 1 is held entitled to benefit of doubt of manufacturing sub-standard chemical fertilizer and dispatching the same on account of order by the dealer. The person responsible for manufacturing the material was accused No. 2 or any Director responsible for quality control should face the music, are the questions to be considered in such cases. There is no cogent and convincing evidence on record to show that accused No. 2 was the sole responsible person with the quality control of the manufacturing of the fertilizer. Of course he had entered into the correspondence with the complainant, so he also should be given same benefit like accused No. 1. There is no cogent and convincing evidence on record to show that accused No. 2 was the sole responsible person with the quality control of the manufacturing of the fertilizer. Of course he had entered into the correspondence with the complainant, so he also should be given same benefit like accused No. 1. ( 15 ) ON account of inefficiency of evidence to link any of the accused with the crime, the Court is of the view that the learned Judge has grossly erred in appreciating oral as well as documentary evidence led during the course of trial and has not thought about the point as to the adequacy of the evidence available on record and therefore such conviction would not sustain. ( 16 ) IN the result, present Criminal appeal is allowed. The judgment and order of conviction and sentence dated 20th february, 1993 rendered by the learned special Judge, Mehsana in Essential commodities Case No. 7 of 1991 is hereby quashed and set aside. The appellants are acquitted of all the charges levelled against them of violating the provisions of Section 19 (1) of Fertilizer Control Order and under sections 3 and 7 of the Essential commodities Act. Fine, if paid by the appellants, is ordered to be refunded to them on proper identification. Bail Bonds executed by the appellants-accused shall stand discharged. Order and Direction accordingly.