IMPORTANT POINT
Fertiliser-Sub standard sample-Sample was not drawn is accordance with procedure laid-Acquittal.

A.N.Jindal, J.

1. Accused-appellant Hari Krishan was slapped with sentence of rigorous imprisonment for one year and fine of Rs. 1,000/-, for keeping in his possession Dia-ammonium Phosphate [DAP (PPL)], a sub-standard fertilizer, vide judgment dated 27.9.1996 passed by Special Judge, Ferozepur.

2. On 6.11.1991, Sucha Singh Fertilizer Inspector accompanied by Davinder Kumar, Junior Technician and Rajinder Kumar, Beldar raided the shop of Hari Krishan, and he found 52 bags of fertilizer known as DAP (PPL) lying in the shop. 2 kg of fertilizer from each bag was taken out as sample, which was spread over a piece of paper and after mixing and stirring the same homogeneously, it was divided into three equal parts. Each part was transferred into a polythene bag and was wrapped in a cloth air tight bag separately. Form `J was prepared and four copies of seizure memo were prepared and one copy of it was put in each bag. However, Hari Krishan- appellant and Karam Chand, his servant declined to sign the seizure memo. Each part of the sample was sealed with the seal of Fertilizer Inspector bearing impression `FI-AGR-FZR. One sample was handed over to Karam Chand, while two parts of sample were handed over to Resham Singh, Agriculture Development Officer, Ferozepur by Sucha Singh, Fertilizer Inspector. In turn, Resham Singh sent the sample to the Fertilizer Quality Control Laboratory, Punjab, Ludhiana on 8.11.1991, wherefrom report Ex. PG was received, stating that the sample did not meet the standard as prescribed in the Fertilizer Control Order, 1985. The matter was referred to the Senior Superintendent of Police, Frozepur, vide letter Ex. PD, on the basis of which First Information Report was registered on 10.2.1993.

3. Besides other documents from the office of Chief Agricultural Inspector, affidavit of Hari Krishan Ex. PA was also taken into possession during investigation. On 15.4.1993, appellant was arrested by Naranjan Singh Assistant Sub-Inspector and stock register Ex. P-3 and bill Ex. P-4 were taken into possession.

4. On completion of investigation, report under Section 173 of the Code of Criminal Procedure (hereafter referred to as Cr.P.C.) was submitted to the Court.

5. Charge against the appellant under Section 7 of the Essential Commodities Act was framed, to which he pleaded not guilty and claimed trial.

6. During evidence, prosecution Sucha Singh, Fertilizer Inspector PW-1, Balwant Rai PW-2, Resham Singh, Agriculture Development Officer, PW-3, Harjeet Singh, Chief Agricultural Officer, PW-4, Davinder Kumar, Junior Technician PW-5, Amrit Lal PW-6 and Naranjan Singh Assistant Sub-Inspector PW-7.

7. When examined under Section 313 Cr.P.C., the appellant denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. During defence, he examined Joginder Paul, Superintendent Custom and Excise, Amritsar DW-1, to prove the plea of alibi, set up by him on the day of occurrence.

8. On scrutiny, the trial ended in conviction.

9. I have heard Mr. Gaurav Chopra, counsel for the appellant and Mr. GPS Gill, Assistant Advocate General appearing for the respondent-State of Punjab and have also gone through the record with their able assistance.

10. Counsel for the appellant has mainly staked his claim on the ground the during the process of taking out the sample, the Fertilizer Inspector Sucha Singh PW-1 failed to adopt the procedure given in para No. 5 of Schedule II of the Fertilizer Control Order, 1985, which deals with the preparation of the composite sample. As per this rule, the mandatory requirement of law, as envisaged in the order was that Sucha Singh PW-1 was required to spread the composite sample on levelled clean hard surface and to flatten it out and divide into four equal parts and then to mix the two remaining parts together to form a cone, flatten out the cone and repeat the operation of quartering till a composite sample of about 1.5 kg. weight is obtained, but in