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Rajasthan High Court · body

2014 DIGILAW 2062 (RAJ)

Chittari Agricare Pvt. Ltd. v. State of Rajasthan

2014-12-10

SANDEEP MEHTA

body2014
JUDGMENT : 1. The instant misc. petition has been preferred by the petitioner M/s. Chittari Agricare Pvt. Ltd. through its Area Sales Manager for quashing of the summoning order dated 6.2.2006 and the entire proceedings of Cr. Complaint Case No. 50/2006 "State v. Vikram Singh & Ors." pending in the court of the learned Additional Chief Judicial Magistrate, Merta City for the offence under Section 7 of the Essential Commodities Act read with Clause 19 of the Fertilizer Control Order. 2. The petitioner firm is involved in the production and marketing of various kinds of fertilizers etc. On 4.1.2005 the respondent Fertilizer Inspector, Jodhpur drew a sample of micro-nutrient mixed fertilizer bearing batch No. 13 manufactured by the petitioner firm from its dealer M/s. Veer Teja Agro Agency, Merta Road, Nagaur. One part of the sample was forwarded to the State Fertilizer Quality Control Laboratory, Jodhpur and was found not conforming to standards upon analysis. The laboratory forwarded its analysis report dated 27.1.2005 to the Inspector with the aforesaid conclusion. A show cause notice was served on the petitioner firm by the office of Joint Director of Agriculture, Jodhpur intimating it of the aforesaid analysis report. The petitioner firm submitted its reply to the show cause notice. 3. Thereafter, a referral part of the sample was sent for re-analysis to the Fertilizer Testing Laboratory, Warangal, Andhra Pradesh and as per its analysis report dated 24.12.2005, the second part of the sample was also found to be non-standard. The Inspector thereafter instituted the complaint in question in the court of learned Additional Chief Judicial Magistrate, Merta City on 6.2.2006. The learned trial Court vide order dated 6.2.2006 issued process against the persons arrayed as accused in the complaint. 4. The petitioner firm has approached this Court by way of the instant misc. petition under Section 482 Cr.P.C. assailing the validity and correctness of the proceedings of the complaint as well as the summoning order. 5. Mr. Rakesh Verma, learned counsel for the petitioner submitted that the Fertilizer Control Order, 1985 was issued under Section 3 of the Essential Commodities Act, 1955 and it contains specific provisions prescribing the manner in which the samples of fertilizers are to be drawn. The procedure prescribed for drawl of samples in the relevant provisions of the Fertilizer Control Order 1985 is mandatory. The procedure prescribed for drawl of samples in the relevant provisions of the Fertilizer Control Order 1985 is mandatory. He referred to Part A, Schedule II of Fertilizer Control Order notified under Clause 28(1)(b) and 29, which prescribes the mode of drawing of samples. Learned counsel pointed out that as per Clause 1 (e) of the Schedule, after drawing the sample, it has to be kept in a suitable clean, dry and air tight glass or screwed hard polythene bottle of about 400 gm capacity or in a thick gauged polythene bag. The sample packed in this fashion has thereafter to be placed in a cloth bag which may be sealed with the Inspector's seal after putting inside the detailed description as specified in Form 'J' Identifiable details may also be put on the cloth bag like sample number/Code number or any other details which enables its identification. As per Clause 1(f), each bag is to be sealed air tight after filling and being marked with details of sample, type and t rand of fertilizer name of dealer/manufacturer/importer and the name of Inspector who has collected the same. 6. Learned counsel contended that in the case at hand, there is no material to show that the Fertilizer Inspector drew the sample in accordance with the mandatory procedure prescribed in Schedule II. He took this Court through the contents of the complaint as well as the inspection memo and submitted that the Inspector made a bald assertion in the inspection memo that a composite sample was prepared in accordance with the Fertilizer Control Order, 1985 and the thereafter, three samples of the fertilizer were sealed. One of the samples was handed over to the trader Vikram Singh arid the second sample was sent for analysis to the Quality Control Laboratory, Jodhpur whereas, the third sample was retained by the Inspector. 7. Learned counsel submitted that in the detailed complaint filed by the Inspector, all that is mentioned is that the sample of the fertilizer was divided in three parts of 200 gms each and was sealed. He urged that it is nowhere mentioned in the complaint that the mandatory sampling procedure laid down in the Schedule was followed by the Inspector. He contends that while preparing the seizure/sampling memo, the procedure adopted for drawing and sealing the samples has to be elaborated so as to instill confidence in the proceedings. He urged that it is nowhere mentioned in the complaint that the mandatory sampling procedure laid down in the Schedule was followed by the Inspector. He contends that while preparing the seizure/sampling memo, the procedure adopted for drawing and sealing the samples has to be elaborated so as to instill confidence in the proceedings. He relied on the decision rendered by the Hon'ble Punjab and Haryana High Court in the case of Rajender Kumar & Bros. v. State of Punjab and decisions of this Court in the cases of Chandra Prakash & Ors. v. State of Rajasthan reported in 1986 (2) WLN 710 and Sumer Singh Bhati v. State of Rajasthan & Anr. reported in 2012 (3) Cr.L.R. (Raj.) 1239 and urged that the proceedings of the complaint in hand are totally vitiated on account of non-compliance of the mandatory procedure prescribed under the Scheduled to the Control Order deserve to be quashed for this reason. 8. The learned Public Prosecutor has filed a reply to the misc. petition, signed and sworn by the Assistant Director, Agriculture, Jodhpur. There is no pertinent denial in the reply regarding the plea taken in the misc. petition that the mandatory procedure of sampling as prescribed in the Schedule was not followed by the Fertilizer Inspector. A bald statement has been made in para 8 of the reply that the sampling was done as per the sampling procedure of Schedule II (Part A) of the Fertilizer Control Order, 1985. Nonetheless, the learned Public Prosecutor took shield of the reply and opposed the submissions advanced by the petitioner's counsel. He submitted that the issue whether the proper sampling procedure as set out in the Schedule II was precisely followed or not by the Fertilizer Inspector would only become clear after evidence is led at the trial. He, therefore, submitted that it would be premature for this Court to quash the complaint by resorting to the provisions of Section 4.82 Cr.P.C. by holding that the mandatory sampling procedure was not followed in the case. 9. Heard and considered the arguments advanced at the bar and perused the material available on record. 10. The controversy which this Court is called upon to answer is as to whether the proper and mandatory procedure prescribed under the Control Order for sampling was followed by the Fertilizer Inspector or not. 9. Heard and considered the arguments advanced at the bar and perused the material available on record. 10. The controversy which this Court is called upon to answer is as to whether the proper and mandatory procedure prescribed under the Control Order for sampling was followed by the Fertilizer Inspector or not. The best documents available to the prosecution for establishing its case that the prescribed mandatory procedure was followed in letter and spirit by the Inspector while drawing the samples would be the complaint and the seizure memo. The relevant portion of the complaint filed by the Inspector in this case is reproduced hereinbelow for the sake of convenience:- ifjoknh us moZjd ? fu;a=.k ? vkns'k 1985 ds DykWt 28 ( 1 ) ch ds vUrxZr iznRr 'kfDr;ksa dk mi;ksx djrs gq, fyf[kr esa moZjd dk uewuk ysus dh lwpuk izi= VIII esa Jh fodzeflag lkWxok dks nsdj miyC/k moZjd lq{e rRo feJ.k le;qDrk U;wV~hesaV mRiknd eSllZ fprkjh ,xzh ds;j izk0fy0 cSaxyksd esa ls moZjd ? fu;a=.k ? vkns'k 1985 f'kM;wy f}rh; [k.M ' v ' esa n'kkZ;h xbZ fof/k vuqlkj ekStwn dV~Vksa esa ls ,d dV~Vs ls fgyk feykdj moZjd ds rhu uewuk izfr izkIr dj izR;sd uewuk out 250 xzke esa mfpr izdkj QkeZ ih Hkjk gqvk j[kdj lhy fd;k x;kA moZjd fu;a=.k vkns'k 1985 ds izko/kkuksa ds vuqlkj---- 1---- dV~Vksa dk p;u dj muesa ls moZjd ysdj dEiksftV uewuk cuk x;kA izR;sd moZjd ls rhu uewus lhy cUn fd;s x;s rFkk mlesa ls ,d uewuk O;olk;h Jh fodz;flag lkxok iq= Jh lq[kkjke lkxok dks nsdj jlhn izkIr dh x;hA ,d uewuk fo'ys"k.k gsrq xq.k fu;U=.k iz;ksx'kkyk tks/kiqj dks Hkstk x;k rFkk rhljk jsQjsal uewuk eSaus vf/kdkjh ds ikl j[kus ds fy;s fy;kA Relevant portion of the seizure memo reads as below:- ^^ moZjd fu;a=.k vkns'k 1985 ds izko/kkuksa ds vuqlkj ---1-- dV~Vksa dk p;u dj muesa ls moZjd ysdj dEiksftV uewuk cuk;k x;kA izR;sd moZjd ds rhu uewus lhy cUn fd;s x;s rFkk muesa ls ,d uewuk O;olk;h Jh fodzeflag lkxrk iq= Jh lq[kkjke lkxrk dks nsdj jlhn izkIr dh x;hA ,d uewuk fo'ys"k.k gsrq xq.k fu;U=.k iz;ksx'kkyk tks/kiqj dks Hkstk x;k rFkk rhljk jsQjsal uewuk uewuk eSau vf/kdkjh ds ikl j[kus ds fy, fy;kA ^^ 11. From a bare look at the contents of the complaint and the seizure memo, it is evident that the Inspector whilst drawing the samples made a bald mention therein that the samples were drawn as per law.12. When the law prescribes that a particular act has to be done in a particular manner, it goes as a corollary that the mode of performing such act should be reflected- in the corresponding documents so as to instill confidence and sanctity in the proceedings and for maintaining fairness. This Court in the case of Chandra Prakash (supra) was dealing with an identical situation. In the aforesaid case, this Court observed that a mere mention in the complaint and the inspection memo that the mandatory procedure as provided in the Schedule was followed would not suffice. It has to be mentioned and elaborated in the seizure memo that the detailed procedure of drawl of samples prescribed in the Schedule was followed. The precise steps taken by the Inspector to draw the samples have to be reproduced in the inspection note so as to reflect subjectively that the procedure as duly followed. When the issue regarding the mandatory provisions being followed is examined by the court, the prosecution would only have the inspection memo and the complaint to fall upon in order to establish compliance. In order to satisfy the court that the due procedure was followed, the procedure obviously has to be reflected in these documents.13. In the relevant portion of the seizure memo prepared by the Inspector (reproduced supra), it was not even mentioned that the samples were drawn in accordance with the procedure prescribed in Schedule II. A bald mention has been made in para 2 of the complaint that the samples were drawn in accordance with the procedure prescribed in Schedule II.14. Alongwith the reply filed by the learned Public Prosecutor, two analysis reports dated 27.1.2005 and 24.12.2005 have been placed on record. None of the reports mentions that the samples received in the laboratory were packed and sealed in accordance with the provisions of Schedule II. Thus, the bald assertion in the complaint that the procedure prescribed in the Schedule II for sampling was followed by the Inspector is not corroborated by the analysis reports as well. None of the reports mentions that the samples received in the laboratory were packed and sealed in accordance with the provisions of Schedule II. Thus, the bald assertion in the complaint that the procedure prescribed in the Schedule II for sampling was followed by the Inspector is not corroborated by the analysis reports as well. A bald statement made in the complaint that he procedure prescribed in the Schedule was followed does not satisfy the requirements of law regarding the manner in which the samples were drawn. As a matter of fact, the details ought to have been mentioned in the seizure memo itself. Ir the case of Chandra Prakash (supra), the Inspector had mentioned in the inspection note that the sample was drawn in accordance with the provisions of the Schedule. Despite that, this Court quashed the proceedings of the complaint as being polluted for non-following of the prescribed procedure for drawing the samples. As this Court has arrived at a conclusion that the Food Inspector did not follow the mandatory procedure prescribed in the Schedule while drawing the sample of the fertilizer, great and irreparable prejudice has been caused to the7 accused vitiating the proceedings of the complaint.15. In view of the above discussion, this Court is of the opinion that it is a fit case to exercise its inherent powers and quash the proceedings of the Complaint No. 50/2006 pending in the court of ACJM, Merta City.16. Consequently, the misc. petition deserves to be and is hereby allowed. The Complaint Case No. 50/2006 and proceedings in pursuance thereof pending in the court of learned Additional Chief Judicial Magistrate, Merta City are hereby quashed. Stay petition is disposed of.