1. - This misc. petition under Section 482 Cr.P.C. has been filed by the petitioner on 8.1.2004 with a prayer that the Order dated 31.01.2003 passed by the learned Chief Judicial Magistrate, Bikaner in Criminal Complaint No. 46/2003 (State of Rajasthan v. M/s. Goutam Fertilizer & Ors.) by which the learned Chief Judicial Magistrate took cognizance against the accused petitioner under Clause 19(B) and 35/1 of the Fertilizer (Control) Order, 1985 (hereinafter referred as to "the Order. 1985") read with Section 3/7 and 9 of the Essential Commodities Act, 1955, be quashed and set aside and proceedings taken against the petitioner on the basis of that complaint be dropped qua the petitioner.

2. It arises in the following circumstances:

(i) That the Assistant Director, Agriculture Department, Bikaner visited M/s. Goutam Fertilizer, Nokha Mandi as well as M/s. Agrasen Agro Sales Corporation, Bikaner and took the samples of micro nutrient manufactured by the petitioner firm and sent the same for analysis to the laboratory situated at Jodhpur and who in turn declared the micro nutrient as being sub-standard and thereafter the Assistant Director (Agriculture) designated as Fertilizer Inspector submitted a criminal complaint under Clause 19(B) and 35(1) of the Order, 1985 as well as Section 3/7 and 9 of the Essential Commodities Act, 1955 against the petitioner as well as seven other persons before the learned Chief Judicial Magistrate, Bikaner on 31.1.2003 and the copy of the complaint marked as Exhibit-1.

(ii) That further case of the petitioner is that in pursuance of the complaint, the learned Chief Judicial Magistrate, Bikaner vide order dated 31.1.2003 took the cognizance against the petitioner as well as seven other persons under Clause 19(B) and 35/1 of the Order, 1985 r/w Section 3/7 and 9 of the Act, 1955.

(iii) That further case of the petitioner is that as soon as the petitioner came to know about the cognizance taken against him, this petition under Section 482 Cr.P.C. has been filed with the prayers as stated above.

3. The main case of the petitioner in this petition is that since the Punjab and Haryana High Court in a case S.B. Civil Writ Petition No. 5643/1995 (Tarsem Singh v. Union of India & Ors.1997(1) EFR 127 had declared Clause 19 of Order, 1985 unjust, unfair and violative of Articles 19(1) and 21 of the Constitution of India and had been struck down and, therefore, taking cognizance under Clause 19(B) of the Order, 1985 which has been declared invalid is without jurisdiction and thus the fate of the complaint itself also does not survive.

4. On the other hand, the learned Public Prosecutor has supported the Order dated 31.1.2003 passed by the learned Chief Judicial Magistrate, Bikaner.

5. I have heard and perused the case file.

6. There is no dispute on the point that in the case of Tarsem Singh (supra), the Punjab and Haryana High Court had declared Regulation 19 of Order, 1985 as unconstitutional and in doing so the Court has observed as follows:-

"Summing up, Clause 19 of the impugned Fertilizer Control Order, 1985 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 also snatched a valuable right of a person who deals in the trade of fertilizer and sells the sealed and stitched bags as supplied to him by the manufacturer. Evert this piece of legislation has made such dealer punishable who has properly stored the essential commodities and such 'fertilizer'. I am of the opinion that Clause 19 of the impugned Fertilizer Control Order. 1985 is violative of Article 19 read with Article 21 of the Constitution of India and in its present shape cannot be allowed to operate/stand and as such Clause 19 of the Control Order is hereby struck