Non-observance of the mandatory procedure for drawing samples of Fertilizers as laid down in Clause 14(a) of the Fertilizers Control Order, 1957 and Schedule II appended to the Order is fatal to the prosecution.

1. - This application under Section 482 Cr.PC has been directed against the order, dated April 13, 1985, passed by Special Judge (E.C. Act) Rajasthan, Jaipur, whereby he took cognizance against the petitioners for offence under Section 3/7 of the Essential Commodities Act, 1955 for violation of Clause 13(a) of the Fertilizer Control Order, 1957.

2. Brief facts giving rise to this case are that the Assistant Director, Agriculture (Quality Control), Kota had filed a report at Police Station, Kaithoon on February 17,1984, wherein he alleged that he had visited the Sale Centre of M/s Ambika Enterprises, Bus Stand, Kaithoon on December 4, 1983 and had taken the sample of Single Super Phosphate 16% and NPK 12 : 32 : 16 of Jeevan Fertilisers Company Ltd. It was mentioned that the firm obtained 20 bags of Fertilisers of which 19 bags had been sold and one duly stitched by machine was lying in the shop. Three samples were obtained and were sent for analysis to the Public Analyst who after analysis reported the sample to be sub-standard. Other allegations were also levelled against the petitioners which are not mentioned since they are not relevant for the disposal of this case. Suffice it to say that after investigation the Police submitted a final report which was submitted before the Special Judge (EC Cases), Jaipur. The learned Judge did not agree with the final report and said that in Clause 13(a) of the Fertilisers Control Order, 1957 it is mentioned that no person shall himself or by any other person on his behalf manufacture for sale, sell, offer for sale stock or exhibit for sale or distribute any Fertiliser which is not of prescribed standard, and according to the learned Special Judge since sample was taken to be sub-standard the Directors and Parterns of all the three, Firms which had the dealing were prima facie liable for being prosecuted and hence took cognizance of the offence against the petitioner. They have challenged the same in this Court by this petition.

3. It is submitted by Mr. Mehrish that the learned Special Judge before taking cognizance has not applied his mind to the provisions of law and the material on record. It is submitted that he has not even gone through the reasons given in final report and before coming to the conclusion that there is contravention of Clause 13 of the Fertilisers Control Order, 1957. he ought to have taken note of Clause 14(a) of the said order along with the Schedule II mentioned therein. It is submitted that the sample had been taken in contravention of the provisions of law and, therefore, the petitioners cannot be prosecute 1 as prolonging the prosecution would only result in undue harassment to the petitioners.

4. The learned Public Prosecutor could not substantiate the order passed by the learned Special Judge but submits that the petitioners should raise this point at the time of framing of the charge.

5. I called for the record of the case and perused the same. I have also gone through the various provisions of the Fertilisers Control Order, 1957. Schedule II appended to the Order which lays down a procedure for drawing samples of Fertilisers. Clause 14(a) of the Order authorises the inspector to draw the samples of Fertilisers in accordance with the provisions for drawing of the samples as laid down in Schedule II to this order. In drawing the samples precaution had to be carried out, namely:

(a) Samples shall not be taken at a place exposed to weather;

(b) The sampling instruments shall be clean and dry when used. (Diagram of the sample tube given separately);

(c) The material being sampled, the sampling instruments and the containers for sample shall be protected from adventitious contamination's;

(d) To draw a representative sample, the contents of the each container selected for sampling shall be mixed at thoroughly as possible by suitable means;

(e) The samples shall be placed in suitable, clean, dry and air tight glass or other suitable containers;

(f) The sample cont