IMPORTANT POINT
So long as standards of mixtures offertilizer have not been prescribed by the Central Govt., by notification issued under Cl. 13 of the Fertilizer (Control) Order, 1985, the standards prescribed under the Fertilizer (Control) Order, 1957 shall continue.

Headnote:(i) Essential Commodities Act, 1955 - Section 7(1)(2) - Fertilizer (Control) Order, 1957 - Cl. 10A - Fertilizer (Control) Order, 1985 - CI. 39 - Scope of clause 39(2) of the New Order, vis-a-vis the previous Cl.10A of the Old Order and Cl. 13 of the New Order - In the old as well as the New Order manufacture of fertilizer not conforming to the standard prescribed is prohibited - There is no contrary intention to destroy old rights & liabilities by the enactment of the New Order - So long as standards of mixtures of fertilizer have not been prescribed by the Central Government, by notification issued under CI. 13 of the New Order, the standard prescribed under the old order shall continue - [General Clauses Act, 1897 Clause 6(c)]
       Held: The Fertilizer (Control) Order, 1985 came into force on 25th September; 1985, the date of its publication in the Gazette of India. Under Cl. 39 of the Fertilizer (Control) Order, 1985, earlier Fertilizer (Control) Order, 1957 stood repealed, except as respects things done or omitted to be done under the said Order, before the commencement of the New Order. The expression "as respects things done" occurring in Cl. 39(1) of the New Order does not mean or include an act done by a person in contravention of the provision of the old Order. What the clause contemplates and keeps alive is rules, notifications or other official acts done in exercise of the powers conferred by or under the Fertilizer (Control) Order, 1957. (Para 5)
       Further held: A comparative study of CI. 10A of the old Order and CI. 13 of the new Order, makes it apparent, that no person shall manufacture any mixture of fertilizers unless such mixture conforms to the standards set, be it in the notification issued by the State Government in its Official Gazette or the notification to be issued by the Central Government in its Official Gazette. There is no dispute, that under Clause 13 of the New Fertilizer (Control) Order, no notification had been issued by the Central Government in its Official Gazette, prescribing the standard of any mixture of fertilizers. Does, it then mean, that the Legislature provided an interregnum, where the offence could be committed and no prosecution could be launched? If the avowed object of the Legislation was to protect the interests of the consuming public, with regard to fertilizer, then there cannot be a period free from liability. In the old as well as the new Order manufacture of fertilizer not the prescribed standard is prohibited. Thus it is clear, that there was no contrary intention to destroy old rights and liabilities. (Para 8)
       (ii) Essential Commodities Act, 1955 Section 7(1)(2) - Fertilizer (Control) Order, 1957 - Cl. 10A - Fertilizer (Control) Order, 1985 - CI. 39 - Prosecution for violating the provisions of 1957 Order - Sample of fertilizer was found deficient in water soluble phosphate - The deficiency was more than the permissible limit - On the date of sampling, namely 26-9-1985, 1957 Order was not in force, for, the 1985 Order had come into effect on the midnight of 25/26-9-1985 - Whether the prosecution launched under the old Order is sustainable? - (Yes, if the petitioners are aggrieved due to change in procedure in the process of sampling or analysis or the competence of the analyst, it will be open to them to convass the resultant prejudice if any, for consideration by the trial court, after evidence is brought on record).
       Held: Even with regard to the sampling procedure under the old and new orders except the quantity required to be samples, no major deviation is discernible. Under the old Order, the samples had to be placed in a suitable, clean, dry and air-tight glass or other suitable containers (See Sch. II. 1(e), while under the new Order the sample should be 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. 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' J'. Identifiable details may also be put on the cloth bag like sample No./Code No. or any other details which enables its identification. The other clauses 1 (a) to (d) and (t) are the same in both the Orders. In the old Order 1(g) of Schedule II has been included. (Para 11)
       Further held: Merely because the respondent has stated in his complaint, that he had strictly complied with the provisions of the Fertilizer (Control) Order, 1957, and the prosecution as such had been launched under the said Order, they cannot affect the validity of this prosecution. The wrong label given by the respondent does not affect the power of the Court to take cognizance of the offence committed, which as rightly contended by the Additional Public Prosecutor would attract the provisions of the Fertilizer (Control) Order 1985. ( Para 15)
       (iii) INTERPRETATION OF STATUES - Courts must strive to interpret the statute so as to protect and advance the object and purpose of the enactment.
       Result - Petition dismissed.

ORDER

Arunachalam, J. - The petitioners are A.1 and A.3 in C.C. No. P.R. 18 of 1988 on the file of Judicial Magistrate, No. II, Salem. On a complaint preferred by the respondent, who is the Agricultural Officer (Quality Control) Salem, the petitioners are being prosecuted for having violated the provisions of the Fertilizer (Control) Order, 1957, punishable under Section 7(1)(2) of the Essential Commodities Act, 1955.

2. The allegations in the complaint disclose, that samples of Standard Mixture No. 12 and Standard Mixture No. 18 were drawn on 26th September, 1985, in the presence of the second petitioner by the Inspecting Agricultural Officer (Quality Control). The samples are stated to have been drawn as per the rules under Schedule 11A 2A (b) III and 3(a) and (b) of Fertilizer (Control) Order, 1957, after following scrupulously the procedure ordained in the said Order. On analysis the sample was found deficient in water soluble phosphate, to an extent of 2.21. The specification of water soluble phosphate is 3.40 while the actual percentage on analysis was 1.19. The deficiency was more than the permissible limit. After calling, the first petitioner to offer an expanation, this prosecution was launched.

3. The first petitioner is the company while the 2nd and 3rd petitioners are Chemist of the Fertilizer Division and Branch Manager of the Fertilizer Unit.

4. In this petition filed under Section 482, Criminal Procedure Code, to call for the records and quash the pending prosecutions not maintainable and an abuse of process of Court, the ,only contention urged by Shri N. Natarajan, learned Senior Counsel is that on the date of sampling, namely 26-9-1985, Fertilizer (Control) Order, 1957 was not in force, for the Fertilizer (Control) Order, 1985 had come into effect on the mid night of 25/26-9-1985, by which the previous Fertilizer (Control) Order, 1957 had been superseded. Elaborating his contention, he argued that under Cl. 39 of the Fertilizer (Control) Order, 1985, the earlier Fertilizer (Control) Order stood repealed. Therefore it was clear that no complaint could lie with respect to Fertilizer (Control Order, 1957 effective from 25-9-1985. The procedure prescribed for drawal of samples was totally different in the 1985 Order. The drawal of sample on 26-9-1985 under the terms and conditions of the old Fertilizer (Control) Order, was totally without any legal basis and authority of law, in force. Since for punishing any person under the provisions of the Essential Commodities Act, no mens rea is involved, not following the strict mandate of law, would be fatal to this prosecution.

5. Mr. I. Subramaniam, learned Additional Public Prosecutor, countering the arguments of Mr. N. Natarajan, contended, that the filing of a complaint was intended to set the law in motion. It was ultimately for the court to decide on the facts placed before it, the nature of offence, if any, committed by the petitioners. Merely because a wrong provision of law has been stated in the complaint, the prosecution cannot be thrown out. In other words, tracing a wrong source of power does not render invalid the pending prosecution. He submitted that the prescription stipulated related to water soluble phosphorus. The procedure for analysis either under the old Control Order or under the new Control Order to determine water soluble phosphorus was almost the same and if there was any prejudice, that could not be canvassed and considered during trial. Pointing out CL 39(2) of the Fertilizer (Control) Order, 1985, he contended that directions issued under Cl. 10A of the repealed Order would survive and continue in force till revoked. He then referred to Cl. 13 of the Fertilizer (Control) Order, 1985 to urge, that no person shall manufacture any mixture of Fertilizers unless that mixture conformed to the standards set out in the Notification to be issued, by the Central Government in the Official Gazette so far as water soluble phosphoric acid... and…are conce

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IMPORTANT POINTSo long as standards of mixtures offertilizer have not been prescribed by the Central Govt., by notification issued under Cl. 13 of the Fertilizer (Control) Order, 1985, the standards prescribed under the Fertilizer (Control) Order, 1957 shall continue.

IMPORTANT POINT
So long as standards of mixtures offertilizer have not been prescribed by the Central Govt., by notification issued under Cl. 13 of the Fertilizer (Control) Order, 1985, the standards prescribed under the Fertilizer (Control) Order, 1957 shall continue.