The absence of provisions for re-testing samples from independent laboratories in the Fertilizer (Control) Order, 1985, did not render the Control Order unconstitutional and invalid.

1. - Upon taking up this matter for final hearing, the learned counsel appearing for the contesting respondent submitted at the outset that the issue herein essentially stands covered by the decision of the Hon'ble Supreme Court as rendered in the case of A.S. Parmar v. State of Punjab & Ors.: Civil Appeal No. 1465/2001, decided on 27.08.2002 ; and, while pointing out that similar writ petitions have already been decided by this Court on 24.01.2008 following the said decision in A.S. Parmar's case, the learned counsel for the contesting respondent urged that the present writ petition also deserves to be decided accordingly. However, the learned counsel for the petitioner resisted such submissions and contended that the said decision in A.S. Parmar's case would not squarely cover the questions involved in this matter nor all the arguments sought to be advanced have been considered in the decision as rendered by the Hon'ble Punjab and Haryana High Court that was not interfered with by the Hon'ble Supreme Court in A.S. Parmar's case. Having regard to the circumstances and at request, the learned counsel for the petitioner was heard at length.

2. The petitioner filed this writ petition on 18.11.1996 essentially questioning the validity of the Fertilizer (Control) Order, 1985 ['the Control Order' hereafter] issued under Section 3(1) of the Essential Commodities Act, 1955 ['the Act of 1955' hereafter] and further questioning the action taken against him under the said Control Order. The petitioner amended his petition by moving an application on 26.11.2001 so as to particularly put a challenge to clause 29 of the said Control Order.

3. The relevant background aspects of the matter are that the petitioner had been working as the General Manager, Shri Ram Fertilizers & Chemicals, a unit of DCM Shri Ram Consolidated Limited, the Company dealing in manufacture of fertilizers and marketing imported DAP after importing the same from the USA. It is pointed out that on 14.11.1994 at about 4:30 p.m., three test samples of DAP were drawn by the respondent authorities from the premises of a dealer firm M/s Legha & Beniwal Company, Nai Mandi, Gharsana, District Sriganganagar and one of the said samples was sent to the Fertilizer Quality Control Laboratory, Jodhpur under the communication dated 15.11.1994. The laboratory found the said sample of DAP as non-standard. The respondent No. 2 informed the dealer about the failure of the sample and upon receipt of the information from the dealer, the petitioners Company is said to have made a reply in detail but and however, a criminal complaint case (No. 7/1995) was instituted against the petitioner and dealer concerned under the provisions of the Act of 1955 read with clause 19 of the Control Order.

4. While questioning the aforesaid proceedings, the petitioner has in the first place contended in the writ petition that all the fertilizers are highly hygroscopic in nature and excess and free moisture affects the composition marginally; and that the analyst was supposed to determine the moisture loss and to report on the percentage loss in weight and having not done so, there was no question of the same having been taken into consideration while determining the percentage of water soluble phosphate in the sample. According to the petitioner, the minor deficiency as reported by the analyst was because of the lapses during the analysis of the sample and, therefore, the report of analyst cannot be relied upon. It is also suggested that the analysis of fertilizer was subject to variation from laboratory to laboratory due to different methods of analysis and, if properly analysed, the sample in question would not have been found sub-standard. It is also pointed out that the analyst had not reported about any adulterant in the sample.

5. Apart from the aforesaid grounds relating to the correctness and probative value of the analysts report, the petitioner has taken other grounds in the writ petition th