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2007 DIGILAW 984 (PNJ)

Hari Krishan v. State Of Punjab

2007-04-25

A.N.JINDAL

body2007
Judgment A.N.Jindal, J. 1. Accused-appellant Hari Krishan was slapped with sentence of rigorous imprisonment for one year and fine of Rs. 1,000/-, for keeping in his possession Dia-ammonium Phosphate [DAP (PPL)], a sub-standard fertilizer, vide judgment dated 27.9.1996 passed by Special Judge, Ferozepur. 2. On 6.11.1991, Sucha Singh Fertilizer Inspector accompanied by Davinder Kumar, Junior Technician and Rajinder Kumar, Beldar raided the shop of Hari Krishan, and he found 52 bags of fertilizer known as DAP (PPL) lying in the shop. 2 kg of fertilizer from each bag was taken out as sample, which was spread over a piece of paper and after mixing and stirring the same homogeneously, it was divided into three equal parts. Each part was transferred into a polythene bag and was wrapped in a cloth air tight bag separately. Form `J was prepared and four copies of seizure memo were prepared and one copy of it was put in each bag. However, Hari Krishan- appellant and Karam Chand, his servant declined to sign the seizure memo. Each part of the sample was sealed with the seal of Fertilizer Inspector bearing impression `FI-AGR-FZR. One sample was handed over to Karam Chand, while two parts of sample were handed over to Resham Singh, Agriculture Development Officer, Ferozepur by Sucha Singh, Fertilizer Inspector. In turn, Resham Singh sent the sample to the Fertilizer Quality Control Laboratory, Punjab, Ludhiana on 8.11.1991, wherefrom report Ex. PG was received, stating that the sample did not meet the standard as prescribed in the Fertilizer Control Order, 1985. The matter was referred to the Senior Superintendent of Police, Frozepur, vide letter Ex. PD, on the basis of which First Information Report was registered on 10.2.1993. 3. Besides other documents from the office of Chief Agricultural Inspector, affidavit of Hari Krishan Ex. PA was also taken into possession during investigation. On 15.4.1993, appellant was arrested by Naranjan Singh Assistant Sub-Inspector and stock register Ex. P-3 and bill Ex. P-4 were taken into possession. 4. On completion of investigation, report under Section 173 of the Code of Criminal Procedure (hereafter referred to as Cr.P.C.) was submitted to the Court. 5. Charge against the appellant under Section 7 of the Essential Commodities Act was framed, to which he pleaded not guilty and claimed trial. 6. P-3 and bill Ex. P-4 were taken into possession. 4. On completion of investigation, report under Section 173 of the Code of Criminal Procedure (hereafter referred to as Cr.P.C.) was submitted to the Court. 5. Charge against the appellant under Section 7 of the Essential Commodities Act was framed, to which he pleaded not guilty and claimed trial. 6. During evidence, prosecution Sucha Singh, Fertilizer Inspector PW-1, Balwant Rai PW-2, Resham Singh, Agriculture Development Officer, PW-3, Harjeet Singh, Chief Agricultural Officer, PW-4, Davinder Kumar, Junior Technician PW-5, Amrit Lal PW-6 and Naranjan Singh Assistant Sub-Inspector PW-7. 7. When examined under Section 313 Cr.P.C., the appellant denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. During defence, he examined Joginder Paul, Superintendent Custom and Excise, Amritsar DW-1, to prove the plea of alibi, set up by him on the day of occurrence. 8. On scrutiny, the trial ended in conviction. 9. I have heard Mr. Gaurav Chopra, counsel for the appellant and Mr. GPS Gill, Assistant Advocate General appearing for the respondent-State of Punjab and have also gone through the record with their able assistance. 10. Counsel for the appellant has mainly staked his claim on the ground the during the process of taking out the sample, the Fertilizer Inspector Sucha Singh PW-1 failed to adopt the procedure given in para No. 5 of Schedule II of the Fertilizer Control Order, 1985, which deals with the preparation of the composite sample. As per this rule, the mandatory requirement of law, as envisaged in the order was that Sucha Singh PW-1 was required to spread the composite sample on levelled clean hard surface and to flatten it out and divide into four equal parts and then to 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 about 1.5 kg. weight is obtained, but in the present case the composite sample was collected from two different sealed bags and the said composite sample was larger than 1-1/2 kg. in weight as Fertilizer Inspector Sucha Singh PW-1 admitted that they had taken 2 kg, each, from two bags and it was spread on a piece of paper. weight is obtained, but in the present case the composite sample was collected from two different sealed bags and the said composite sample was larger than 1-1/2 kg. in weight as Fertilizer Inspector Sucha Singh PW-1 admitted that they had taken 2 kg, each, from two bags and it was spread on a piece of paper. The said sample was divided into three parts and each was transferred in a polythene bag and it was wrapped in a cloth bag separately, but Davinder Singh PW-5 in quiet deviation has stated differently that Sucha Singh extracted some fertilizer from two bags with the help of the sampler and from each bag one kg. of fertilizer was taken out, which was mixed and the fertilizer was divided equally and sealed separately. Since both the witnesses are quiet discrepant in their statements, therefore, inference could be drawn that Davinder Kumar Junior Technician PW-5 may not be present at the spot and he may have been introduced later on. 11. Counsel for the appellant has further tried to build his case saying that since the sample was not taken in a sterilized glass container as per rules and it was not properly mixed up and the delay of 2 years in receipt of the report and in lodging the complaint causes a serious prejudice to the appellant and, consequently, benefit of doubt goes to the appellant. Having given my thoughtful consideration to the aforesaid contention and having perused the records of the case, I cannot ignore the discrepancy which cropped up in the prosecution case. The trial Court even did not deny the aforesaid illegal procedure followed by the Fertilizer Inspector PW-1 and observed as under :- "... This court is of the considered view that no doubt, Sucha Singh, Fertilizer Inspector PW-1 and Davinder Kumar PW-5 in their statements have not repeated and reproduced the exact words used in Schedule II of the Fertilizer (Control) Order, 1985, which prescribed the procedure for taking of the sample of Fertilizer..." 12. Thus, it is felt that the trial Court wrongly observed in the operative part of the judgment that the sample was drawn by the Fertilizer Inspector in accordance with the procedure as laid down in Schedule II of the Fertilizer (Control) Order, 1985. Thus, it is felt that the trial Court wrongly observed in the operative part of the judgment that the sample was drawn by the Fertilizer Inspector in accordance with the procedure as laid down in Schedule II of the Fertilizer (Control) Order, 1985. The trial Court could not swallow the illegality committed by the Fertilizer Inspector and hold that the sample was taken in accordance with the procedure. Even otherwise, (from) the scrutiny of the evidence also clearly transpires that the sample was not divided into four parts and it was not mixed homogeneously, so as to mix two remaining parts together to form a cone and also flatten out the cone and repeat the operation of quartering till a composite sample of about 1.5 kg. weight is obtained. Herein, the sample of more weight than required was taken out and as against placing of the sample on the levelled clean hard surface, it was put on a piece of paper. More so, rather than putting the samples in air tight glass container, it was put in polythene bags. No plausible explanation for deviating from the standard procedure as prescribed in 1985 Order has been made by the prosecution. Therefore, the trial Court fell in error in ignoring the aforesaid illegalities committed by the Fertilizer Inspector. A similar view was taken in the following judgments :- 1. Gian Chand Luthra v. State of Punjab, 1988(2) RCR(Crl.) 481; 2. State of Punjab v. M/s. Karam Chand Rajinder Kumar and others, 1992(3) RCR(Crl.) 365; 3. State of Punjab v. Ashok Kumar and others, 2003(4) RCR(Crl.) 639; 4. State of Punjab v. Sohan Lal, 2003(2) RCR(Crl.) 609; 5. Amrit Lal v. State of Punjab, 1989(2) RCR(Crl.) 711. The present case is also on the similar footings. It may further be observed that here, in this case the accused was not present as admitted by DW-1 Joginder Paul, consequently, he could not be said to be person responsible and incharge of the business. If Karam Chand was present on the spot, then he could be said to be responsible for the conduct of the business, but he was not challaned in the case. Therefore, I am of the view that the trial Court over-looked the aforesaid facts and evidence by holding the appellant guilty of the crime. If Karam Chand was present on the spot, then he could be said to be responsible for the conduct of the business, but he was not challaned in the case. Therefore, I am of the view that the trial Court over-looked the aforesaid facts and evidence by holding the appellant guilty of the crime. As a consequence of above discussion, I accept the appeal, set aside the impugned judgment and acquit the appellant of the charge framed against him. His bail bonds and surety bonds are hereby discharged. The fine, if deposited by him, be refunded.