The need for the accused to prove the non-sale of the declared sample of the fertilizer, the premature nature of judging the ultimate decision at the current stage of the trial, and the dismissal of the discharge petition as a basis for upholding the criminal prosecution.

This Criminal Original Petition is filed to quash the private complaint in C.C. No.189 of 2006 on the file of Judicial Magistrate No.II, Udumalpet, wherein the petitioners are prescribed for the alleged offence under Sections 7(1) (a) (ii) of Essential Commodities Act 1955 read with Sections 19(a) of the Fertilizers Control Order 1985 and 2(q), 2(h) and 19(a) of the Fertilizers Control Order 1985.

2. The allegations in the complaint is that on 03.08.2005 at 11.30 a.m. the respondent on the routine inspection went to the shop of A-6 M/s. Sakthi Agro Service, Udumalpet, which is owned by the A.T.S. Nadhakumar. At the time of his inspection, A.S.P. Sivakumar the salesman was present and the respondent took three samples from the bag containing Super Paspate alleged to have been supplied by A-1, the first petitioner herein. On analysis by the Agricultural Analyst on 05.09.2005, the fertilizer was found to be not of prescribed standard since it was less than 0.91% (the prescribed standard is 16%) and thereafter, on 09.09.2005 again the shop of A-6 was inspected and found all the fertilizers supplied by A-1 were sold. A statutory notice had been issued on 16.09.2005 to the accused calling for an explanation and the first petitioner sent his explanation on 30.09.2005 refuting the allegation. According to him, he did not sell the alleged fertilizer to A-6 M/s. Sakthi Agro Service. Since the explanation was found to be not satisfactory, the respondent after obtaining necessary sanction filed the complaint before the Learned Judicial Magistrate No.II, Udumalpet.

3. Mr. V. Elangovan, learned counsel for the petitioner submits that there is no material to show that the fertilizer, from which, the samples were taken was manufactured and supplied by the petitioners. He would submit that in the explanation to the show cause notice, the petitioners have specifically denied the said fact and despite the said explanation, the authorities without giving an opportunity to the petitioners has filed the complaint which is contrary to the principles of natural justice. He would further contend that the fertilizer which is said to have lifted from the shop of A-6 cannot be said to be of substandard, and at the most it could be only of non-standard as the variance was only negligible that is 0.91%.

4. On a perusal of the complaint, it is seen that the Analyst report dated 05.09.2005 given by the Fertilizer Quality Control Lab has stated that the fertilizer is of substandard quality as it contained only 15.09% as against 16% and the permissible tolerance limit is only 0.1%. The variance in the fertilizer sold by A-6 is 0.91% which according to the respondent/complainant is of non-standard one.

5. Section 19 of the Fertilizer Control Order 1985 specifically prohibits the sale of nonstandard fertilizer. On the information furnished that the petitioners have sold the fertilizers to A-6 shop, they have been prosecuted for selling the fertilizer which is of substandard. It is for the petitioners to prove that the declared sample of the fertilizer was not sold by them to A-6 shop. On a bare perusal of the complaint, it is seen that the sample of fertilizer was lifted by the authorities in accordance with the provisions of Fertilizer Control Order 1985 and prosecution has been initiated according to law. The evidence is yet to be adduced by the complainant and the petitioners would be given a right of defence and now it is premature to judge the ultimate decision which the Court may take. The question whether the petitioners have sold the fertilizers to A-6 shop requires examination of evidence in the trial and the same cannot be decided at this stage.

6. The scope of interference by this Court at threshold by exercising power under Section 482 of the Code of Criminal Procedure has been succinctly stated by the Honble Supreme Court reported in State of Haryana Vs. Bajanlal And Others AIR 1992 SC 604 it is held as follows:

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