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2011 DIGILAW 829 (KAR)

State of Karnataka v. K. H. Nagaraju

2011-08-16

A.S.PACHHAPURE

body2011
JUDGMENT A.S. Pachhapure , J.— The appellant has challenged the acquittal of the respondents for the offence punishable under Section 7 of the Essential Commodities Act, on a trial held by the JMFC, Davanagere. 2. The facts relevant for the purpose of this appeal are as under: The appellant herein submitted a complaint under Section 200 Cr.P.C. stating that on 20.08.1999 the Fertilizer Inspector visited the shop of the 1st respondent, who was the retail dealer of the fertilizer mixture MCF 17:17:17 and took the sample of the said fertilizer for the purpose of testing the same under the provisions of Rule 28(1) (b) of the Fertilizer (Control) Order, 1985 (hereinafter called as 'the Control Order' for short). There were 92 bags of 50 kg. each stored by the 1st respondent in his shop and the Fertilizer Inspector took 3 samples as per the procedure prescribed and obtained the receipt. Thereafter, he sent the sample fertilizer for examination to the chemical examiner at Bangalore and it revealed that it was not in accordance with the specifications. It is under these circumstances that a complaint came to be filed by the appellant before the Court below. The 1st respondent is the retail dealer of the fertilizer referred to supra, whereas the 2nd respondent is the Senior Area Manager and the 3rd respondent is the Production Manager of M/s. Thungabhadra Fertilizers and Chemicals Limited, an incorporated Company. During the trial, the prosecution examined P.Ws.1 and 2 and in their evidence, got marked the documents Exs.P1 to 14. The 2nd respondent was examined as D.H.1 and got marked the documents Exs.D1 to 3. The trial Court took. into consideration the decision of the Punjab & Haryana High Court, reported in Prevention of Food Adulteration Cases, 1997 (1) 48 Tarsem Singh Vs. Onion of India and Ors, the Hon'ble High Court considering Regulation No. 19 of the Control Order 1985, held: It is a piece of unfair legislation. It has given an arbitrary power, to the Government to prosecute a person, who cannot show in a Court of Law that the report of the Public Analyst who has declared the sample of the fertilizer as 'sub-standard', could possibly fall in an error leading to his conclusions while testing the sample. It has given an arbitrary power, to the Government to prosecute a person, who cannot show in a Court of Law that the report of the Public Analyst who has declared the sample of the fertilizer as 'sub-standard', could possibly fall in an error leading to his conclusions while testing the sample. It is under these circumstances that the High Court held that the Regulation 19 of the Control Order 1985 is violative of Article 19 r/w. Article 21 of the Constitution of India. So, the Trial Judge without entering into merits of the case and appreciation of the evidence adduced by the parties, solely relied upon the decision referred to supra and granted an Order of acquittal. But, anyhow, it is brought to the notice of this Court that in an appeal against the Judgment of the single bench, the division bench held that the said provision is constitutionally valid and by setting aside the Order declared Regulation No. 19 as constitutional. The copy of the Judgment has been produced and the relevant citation is in The Director, Agriculture and Another Vs. Gurmukh Mal Shibba Mal and Others, (1998) ILR 1 P & H 142 dated 29th July 1997. In the circumstances, it is the submission of the learned counsel for the appellant that as the trial Court did not look into the facts of the case and decided the matter solely on the decision of the High Court of Punjab & Haryana, it is necessary to hear the matter on merits and decide the case on the basis of the evidence adduced by the parties. 3. I have heard the learned High Court Government Pleader for the appellant and also the learned counsel for the respondents. 4. 3. I have heard the learned High Court Government Pleader for the appellant and also the learned counsel for the respondents. 4. The learned High Court Government Pleader has referred to Rule 28(1)(b) of the Control Order, wherein it provides: 28- Powers of Inspectors: 1) An inspector may, with a view to securing compliance with this Order.- (a) xxxxx (b) draw samples of any fertilizer in accordance with the procedure of drawl of samples laid down in Schedule II: PROVIDED that the inspector shall prepare the sampling details in duplicate in Form J, and hand over one copy of the same to the dealer or his representative from whom the sample has been drawn; (c) xxxxx (d) xxxxx (e) xxxxx So, the procedure has been prescribed as to how the sample has to be taken and as could be seen from the Schedule II Part A Procedure for drawl of samples of fertilizers, clause (e) provides that in drawing samples, the following measures and precaution should be observed: (a) xxxxx (b) xxxxx (c) xxxxx (d) xxxxx (e) The sample should be kept in suitable, clean, dry and air tight glass or screwed hard polythene bottle of about 400 gms 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. 1 or any other details which enable its identification, So, it is the submission of the learned counsel that the procedure as prescribed under Clause (e) of Regulation 1 in Part A of Schedule 11 has not been followed and on this aspect of the matter, he has referred to the cross-examination of P.W.1, wherein P.W.1 states that on the date of the inspection, in two bags he took 400 gms. of the fertilizer mixture in total and thereafter, put into 3 samples of 400 gms., each in 3 polythene bags. At the first instances, it is necessary to note that the discrepancy in the evidence of P.W.1 to the effect that he took the fertilizer mixture in total weight of which was 400 gms. But, further stated that he prepared 3 samples of fertilizer mixture containing 400 gms. each into polythene bags. At the first instances, it is necessary to note that the discrepancy in the evidence of P.W.1 to the effect that he took the fertilizer mixture in total weight of which was 400 gms. But, further stated that he prepared 3 samples of fertilizer mixture containing 400 gms. each into polythene bags. So, the question of 4 polythene bags containing 400 gms. Of fertilizer mixture does not arise for consideration in case if really he had taken the fertilizer mixture weighing totally 400 gms. So, the discrepancy that has been brought on record in the material facts of the case of the prosecution. 5. It is relevant to note that the sample has to be kept in suitable, clean, dry and air tight glass or screwed hard polythene bottle of about 400 gms. Capacity or in a thick gauged polythene bag and it 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. So, if the evidence of P.W.1 is looked into, there is nothing mentioned in his evidence having taken the sample in an air tight glass or screwed hard polythene bottle of 400 gms. capacity or in a thick gauged polythene bag. What P.H.1 stated in his evidence is only that he took the samples in 4 polythene bags. What type of bags were there is not mentioned in his evidence. 6. On this aspect of the matter, the learned counsel for respondent No. 3.1 and 2 has relied upon the decision reported in 1992 (3) Recent Crl. Reports 365 State of Punjab Vs. M/s. Karm Chand Rajinder Kumar and others, wherein the Hon'ble High Court in para 6 has observed: 6. In the instant case, although the Agriculture Inspector had put each part of the sample into separate polythene bags and he had tied the same with string and made them air-tight etc., there was no evidence that these were provided with tight fitting stopper. Besides the polythene bags used by the Agriculture Inspector for sealing the sample cannot be equated with suitable air-tight glass or other container as envisaged in Rule 1 of Schedule II of the Fertilizer Control Order reproduced above. Besides the polythene bags used by the Agriculture Inspector for sealing the sample cannot be equated with suitable air-tight glass or other container as envisaged in Rule 1 of Schedule II of the Fertilizer Control Order reproduced above. According to the report of the Analytical Chemist, Punjab, the sample of fertilizer drawn by the Agriculture Inspector was found not conforming to the prescribed standard inasmuch as the potash contents were found 4.33% as against the permissible contents of 4.0%. In other words, the potash content was found to be in excess by 0.33% of the prescribed standard. 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 Rule 1 of Schedule II of the Fertilizer Control Order, cannot be ruled out as the Agriculture Inspector had committed contravention of Rule 1 in Schedule II of the Order ibid. In this view of the matter, the prosecution cannot be said to have proved the case against the respondents beyond a shadow of reasonable doubt. In the decision referred to supra, there was no evidence that they were provided the tight fitting stopper besides polythene bag used by the Agriculture Inspector for sealing the sample, which was held that it cannot be equated with the suitable or tight glass or other container as envisaged in Rule 1 of Schedule XX of the Control Order, 1985 reproduced above. So also, he relied upon another decision of the same High Court reported in 1989 EFR 78 Gian Chand Luthra Vs. State of Punjab, where the sample of fertilizer was put in a polythene bag and it was sent for test. It was held that the sample ought to have been put in clean, dry and air tight glass or other suitable container. Furthermore, in the decision reported in 1988 EFR 425 Jarnail Singh and others Vs. State of Punjab, where the sample was sent for analysis in polythene bag found to be of sub-standard and not in accordance with the specification prescribed in Schedule to Order, the High Court quashed the proceedings as mandatory rules were not observed while sending the sample for analysis. In the decision reported in 1987 EFR 315 Charan Dass and others Vs. In the decision reported in 1987 EFR 315 Charan Dass and others Vs. State of Punjab, wherein it has been held: Under Schedule II of the Fertilizer (Control) Order, 1957, the sample must not be taken at a place exposed to weather, it shall be placed in suitable clean, dry, and air-tight glass or other suitable containers, and stored in shade. This mandatory provision was admittedly not complied with in the present case. As per clause 4(2) (ii) of the said Schedule II, each sample shall be immediately transferred to a suitable container, as described under clauses 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, however, the sample was put in polythene bags and they remained in the same condition for more than 11/2 ears till analysis. In view of this improper taking of sample in violation of the mandatory provisions of law, the impugned First Information Report deserves to be quashed. So, relying upon the decision referred to supra, it is the contention of the learned counsel for the respondents that the procedure adopted by F.W.1 in sending the sample is improper and it was mandatory on his part to follow the same procedure and therefore, they contend that the prosecution of the respondents is illegal. 7. Looking to the evidence of P.W.1 and the fact that P.W.1 did not adopt the procedure prescribed in Clause 1(e) of Part A in Schedule II of the Control Order, 1985, I am of the opinion that the mandatory provisions have not been followed while taking the samples. Furthermore, there is also contravention of Clause 4A of schedule II of the Control order, 1985, wherein one sample of fertilizer was for approximate weight as specified below: (i) For straight micronutrient fertilizer. 100 grits. (ii) For chelated micronutrient fertilizer and mixtures of. 50 gms. or the maximum packing size of similar quantity. (iii) For other fertilizers and mixtures of fertilizers.- 400 gms. So, P.W.1 having taken the fertilizer mixture total weighing only 400 gms., could not have prepared 3 samples out of weighing 400 gms and therefore, there is also contravention of the above said regulation. 8. The learned counsel for the respondents further relied upon the decision of the Punjab and Haryana High Court, reported in 1994 (1) All India Crl. So, P.W.1 having taken the fertilizer mixture total weighing only 400 gms., could not have prepared 3 samples out of weighing 400 gms and therefore, there is also contravention of the above said regulation. 8. The learned counsel for the respondents further relied upon the decision of the Punjab and Haryana High Court, reported in 1994 (1) All India Crl. Law Reporter 276 Shri K.C.B. Gupta Vs. State of Punjab and another, where a complaint was lodged for contravention of Clause 19 of the Control Order, the sample was found to be sub-standard on analysis, FIR against the Production manager of the Company was filed and the proceedings were quashed by the High Court on the ground that the Company had not been arraigned as a party to the proceedings. 9. The perusal of the complaint reveal that the 1st respondent/accused No. 1 is the proprietor of H/s. Renuka Agro Agencies, whereas the 2nd respondent/accused No. 2 is the Sr. Area Manager and the 3rd respondent/accused No. 3 is the Production Manager of M/s. Thungabhadra Fertilizers and Chemicals Limited. The complainant has not chosen to implead or array the company as an accused in the complaint lodged when admittedly the fertilizer mixture was being manufactured by the Company. 10. Rule 24 of the Control Order 1985, provides: 24. Manufacturer/importers/Pool handling agencies to appoint officers responsible with compliance of the order. Every manufacturing organization importer and pool handling agency shall appoint in that organization and in consultation with the Central Government, an officer, who shall be responsible for compliance with the provisions of this Order. 11. Under the above said provisions, it is necessary for the Central Government to nominate an Officer, who shall be responsible for compliance with the provisions of this Order. On this aspect of the matter, the respondents have produced Exs.D1 to 3. Exs.D1 is the letter written by the Director of Agriculture addressed to M/s. Mangalore Chemicals and Fertilizers Limited of which the 2nd respondent is the Area Manager, with a request to furnish the names and address of the persons, who are connected with production or quality control of fertilizers and that the rank of such persons shall not be below Manager Production or Manager Quality Control. Ex.D2 is the reply nominating one B. Krishnappa as Manager (Quality Control & Environment) for compliance of the fertilizer (controller) Order by Fertilizer Industry. Ex.D2 is the reply nominating one B. Krishnappa as Manager (Quality Control & Environment) for compliance of the fertilizer (controller) Order by Fertilizer Industry. Ex.D3 is the letter of the Government of Karnataka, wherein instructions were given to array the persons nominated as the persons responsible for contravention of the Fertilizer (control) Order. Admittedly, though B. Krishnappa, was appointed as a Manager (Quality Control & Environment) for compliance of the Fertilizer (control) Order he has not been arrayed as an accused in the case on hand. So, the scrutiny of the evidence and the documents produced reveal that the mandatory provisions of the Fertilizer (control) Order have not been followed in many respects and therefore, I am of the opinion that on appreciation of the evidence on record, it cannot be held that the respondents were responsible for contravention of the Fertilizers (control) Order though on different grounds. In the circumstances, I proceed to pass the following: ORDER 12. The appeal is dismissed. No order as to costs.