Illegal exercise of power under the Fertilizer Control Act, 1985 resulting in the quashing of the prosecution

K. N. sanay, J.

1. Heard.

2. The petitioner is a proprietory firm dealing in fertilizer. The petitioner had licence for dealing in fertiliser under Fertilizer Control Act, 1985. This order is a Central order.

3. It appears that by notification dated 16th April, 1986, the State government authorised certain authorities including B. D. O. under clause 27 of the order which states that the State Government or the Central government may by notification in the official gazette appoint such number of persons, as it thinks necessary, to be Inspectors of fertilisers for the purpose of this Order.

4. In the instant case, on 8-9-1992 the petitioners premises was inspected and detected some discrepancies in the stock register. According to the petitioner although he obtained licence on 8-9-1w2 but had not started business when the search was made. The shop of the petitioner was closed. The fertiliser of the petitioner was seized by the B. D. O. The prosecution was launched under Sec.1 of the E. C. Act.

5. It appears that the Central government amended the Fertiliser order by S. O.261 (E), dated 16th April, 1991 and the following clause was inserted after Clause 27 of the Order-

"27-A. Qualifications for appointment of Fertiliser Inspector.- No person shall be eligible for appointment as Fertiliser Inspector under this order, unless he possesses the following qualifications, namely:-

(1) graduate in Agriculture or science with Chemistry as one of the subjects, from a recognized University, and (2) training or experience in the quality control of fertilisers and working in the State or Central Department of Agriculture. "

6 In the instant case, B. D. O. had exercised power under Sec.27 of the act by virtue of notification dated 16th april, 1986 which has ceased after the amendment. The search and seizure is itself illegal and so the prosecution of the petitioner is non est.

7. In the result, this application is allowed and the proceeding against the petitioner is quashed. Application Allowed.