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1999 Supreme(P&H) 1232
PUNJAB & HARYANA HIGH COURT
G.S.Singhvi, H.S.Bedi and Iqbal Singh JJ.
Director, Agriculture, Punjab
Versus
Narinder Pathak
L.P.A. No. 273 of 1997,
Decided On : OCTOBER 13, 1999
Clause 19 of the Fertilizers Control Order, 1985 is not violative of Articles 19 and 21 of the Constitution of India.
Headnote:
FERTILIZER CONTROL ORDER - CONSTITUTIONALITY - CLAUSE 19 - VAGUENESS AND UNREASONABLENESS - VIOLATION OF ARTICLES 19 AND 21 OF THE CONSTITUTION OF INDIA - ESSENTIAL COMMODITIES ACT, 1955 - SECTION 7.
Fact of the Case:
The appellant challenged the constitutional validity of Clause 19 of the Fertilizers Control Order, 1985 (the 1985 Order), arguing that it is vague and unreasonable as it does not provide an opportunity to the dealer to seek an independent analysis of the sample collected by the prosecution.
Finding of the Court:
The court held that Clause 19 of the 1985 Order does not suffer from any constitutional infirmity and is not violative of Articles 19 and 21 of the Constitution of India.
Issues: 1. Whether Clause 19 of the Fertilizers Control Order, 1985 is violative of Articles 19 and 21 of the Constitution of India? 2. Whether the absence of a specific provision in the 1985 Order giving right to the dealer to seek an independent analysis of the sample collected by the prosecution violates the procedure established by law?
Ratio Decidendi: 1. The court held that Clause 19 of the 1985 Order is not vague or unreasonable as it provides sufficient safeguards to the dealer, including the right to defend himself in accordance with the provisions of Section 293 of the Code of Criminal Procedure. 2. The court held that the absence of a specific provision in the 1985 Order giving right to the dealer to seek an independent analysis of the sample collected by the prosecution does not violate the procedure established by law.
Final Decision: The appeal was allowed, the order of the learned Single Judge dated 16th September, 1996 was set aside, and the writ petition filed by the respondent was dismissed.
G.S.Singhvi, J.
1. This appeal has been placed before us in view of the order dated 8th October, 1997 passed by the Division Bench for deciding the following question of law :-
"Whether Clause 19 of the Fertilizers Control Order, 1985 is violative of Articles 19 and 21 of the Constitution of India ?"
2. At the hearing, learned Deputy Advocate General pointed out that the order dated 16th September, 1996 passed by the learned Single Judge (with the title case - Tarsem Singh v. Union of India and others, 1996(3) Recent Criminal Reports 633 vide which he allowed a bunch of writ petitions including C.W.P. No. 7566 of 1996 Narinder Pathak v. Union of India & others filed by respondent No. 1 and struck down Clause 19 of the Fertilizers Control Order, 1985 (hereinafter described as `the 1985 Order) by declaring it to be ultra vires to Articles 19 and 21 of the Constitution of India and also quashed the criminal cases registered against the writ petitioners under Section 7 of the Essential Commodities Act, 1955 (for short, the Act) has been reversed by the Division Bench in L.P.A. No. 1039 of 1996 - The Director, Agriculture, Punjab and others v. M/s Gurmukh Mal Shibba Mal, 1997(4) RCR 780 and as the judgment of the Division Bench has become final, the question relating to vires of Clause 19 of the 1985 Order should be treated as purely academic. He then argued that Clause 19 cannot be declared unconstitutional simply because it does not provide for an opportunity to the dealer to seek an independent analysis of the sample collected by the prosecution or on the ground that it is vague or unreasonable. Learned counsel representing respondent No. 1 supported the impugned order and argued that the declaration granted by the learned Single Judge should be restored and the proceedings pending against his client should be quashed because he will not get an effective opportunity of defence.
3. We have given serious thought to the respective submissions. Clause 19 of the 1985 Order reads as under :-
"Restriction on manufacture, sale and distribution of fertilizers :-
(1) No person shall himself or by any other person on his behalf - (a) manufacture for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertilizer, which is not of prescribed standard;
(b) manufacture for sale, sell, offer for sale, stock or exhibit for sale or distribute any mixture of fertilizers (or mixture of NPK fertilizers, mixture of micro-untrient fertilizers and combination thereof) which is not of prescribed standard (subject to such limits of permissible variation as may be specified from time to time by Central Government) or special mixtures of fertilizers which (xxx) does not conform to the particulars specified in the certificate of manufacture granted to him under this order in respect of such special mixture;
(c) sell, offer for sale, stock or exhibit for sale or distribute - (i) any fertilizer the container whereof is not packed and marked in the manner laid down in this order;
(ii) any fertilizer which is a limitation (an imitation ?) or a substitute for another fertilizer under the name of which it is old;
(iii) any fertilizer which is adulterated; Explanation :-
A fertilizer shall be deemed to be adulterated, if it contained any substance addition of which is likely to eliminate or decrease its nutrient contents or make the fertilizer not conforming to the prescribed standard;
(iv) any fertilizer, the label or container whereof bears the name of any individual firm or company purporting to be manufacturer of the fertilizer, which individual, firm or company is fictitious or does not exist;
(v) any fertilizer, the label or container whereof or anything accompanying therewith bears any statement which makes a false claim for the fertilizer or which is false or misleading in any material particular;
(vi) any substance as a fertilizer which substance is not, in fact, a fertilizer;
(vii) any fertilizer without exhibiting the minimum
