Non-compliance with mandatory statutory procedures for drawing samples of fertilisers is fatal to the prosecution's case.

1. This Criminal Appeal arises out the prosecution of the appellants for the violation of Clauses 13 (1), 13(2) and 19(b) of the Fertiliser (Control) Order, 1985, which is punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955.

2. The appellants are arrayed as A.1 to A.3. The first respondent/complainant is the Agricultural Officer (Plant Protection), Kuthuthurai and he has also been appointed as Fertiliser Inspector, vide Government Notification under Clause 27 of the Fertiliser (Control) Order, 1985. On 19.06.1997, one Y.Rajakumar (P.W.1), who was working as Agricultural Officer (Plant Protection) cum Fertiliser Inspector, in terms of the power to draw samples of any premises where any Fertiliser is manufactured or stored or exhibited for sale and prosecute, etc., inspected the premises of the second respondent/A.4 and verified the stock of 17:17:17 complex of the fertiliser and decided to take samples from the stitched bags. In terms of the procedure contemplated under Schedule II Part-A.2(c) of the Fertiliser (Control) Order, 1985, the said witness opened two selected bags and spread it on a clean hard surface and mixed it thoroughly to form a cone like structure and flatten it out and divided into four equal parts and removed the opposite parts and mixed the remaining two parts together to form a cone flatten out and repeated the operation of quartering till composite sample approximately 1.5 Kg. was collected. Thereafter, it was divided into three approximately equal portion of 500 g. each and the test samples were drawn and transferred to a suitable clean dry thick gauged poly bag and put into a cloth bag. After completing the formalities in terms of the above said Order, the second sample was sent to P.W.2 - the Agricultural Chemist, Fertiliser Control Laboratory, Nagercoil, for analysis and as per the report of P.W.2, marked as Ex.P.8, the sample fails in Moisture, Particle Size XI a, b, Total N, CS P2 O5, WS P2 O5.

3. The accused were also issued with a show cause notice along with the analytical report. The first accused, namely, Madras Fertiliser Limited, was issued with a show cause notice along with the analytical report and in response to the same, A.1 has submitted his response. The first respondent/complainant having formed a opinion that A.1 being the company; A.2 being the responsible person of the A.1 company; A.3 being the Chemist and A.4 being the retail dealer, have committed the offences stated above, filed the private complaint, which was taken on file.

4. The first respondent/complainant, in order to sustain their case, examined P.W.1 - Agricultural Officer (Plant Protection) cum Fertiliser Inspector, Kuzhithurai, P.W.2 - Agricultural Chemist, Fertiliser Control Laboratory, Nagercoil and himself as P.W.3 and also marked Exs.P.1 to P.13.

5. All the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against them in the evidence tendered by the first respondent/complainant and they denied it as false.

6. On behalf of the accused, D.W.1 was examined and no documentary evidence was let in.

7. The trial Court on consideration of the oral and documentary evidence, has convicted A.1 to A.3 under the above said provisions and imposed the sentence as under:

Accused Conviction Sentence

A.1 Cl. 13 (1), 13(2) and 19(b) of F.C.O, 1985, r/w Section 7(1)(a)(ii) of the E.C.Act, 1955. to pay a fine of Rs.50,000/-.

A.2 and A.3 to undergo six months rigorous imprisonment and to pay a fine of Rs.50,000/- each, in default to undergo three months simple imprisonment.

and acquitted A.4. Aggrieved over the conviction and sentence passed by the trial Court, A.1 to A.3 have filed the present Criminal Appeal.

8. The learned Counsel for the appellants has drawn the attention of this Court to the Fertiliser (Control) Order, 1985, more particularly, Clause 29 and Schedule II of the Order and made the following submissio