Sale of non-standard fertilizer is an offence under S. 7 of the Essential Commodities Act read with Clause 19(i)(a) of the Fertilizer (Control) Order, 1985.

1. Sarup Chand and three other partners of M/s. Garg Kishan Sewa Centre, Tapa Mandi, have filed this petition under S. 482, Cr. P.C. for quashing, FIR No. 5 dated 13-1-1991 registered at Police Station, Tapa Mandi against the petitioners under S. 7 of the Essential Commodities Act read with Clause 19(i)(a) of the Fertilizer (Control) Order, 1985.

2. The brief facts of the case are that on 16-7-1990 the Fertilizer Inspector Shri Kewal Krishan took a sample of fertilizer to SSP of J and T Super brand from the premises of the firm of the petitioners and the same was sent for analysis to Analytical Chemist (Incharge) Fertilizer Quality Control Laboratory, Ludhiana. The analyst submitted hi s report dated 31-8-1990 to the effect that the sample of the fertilizer was non-standard. On the basis of this report the Chief Agricultural Officer, Sangrur sent a complaint to Senior Superintendent of Police, Sangrur, for the registration of a case against the petitioners and the case was registered against the petitioners and the case was registered against Sarup Chand partner of firm of M/s. Garg Kisan Sewa Centre, Tapa Mandi and M/s. Agro Chemicals Private Limited, Dhillon Complex, Mani Majra.

3. The petitioners alleged that the allegations contained in the FIR even if taken to be wholly correct did not disclose the commission of any offence. The free acidity and free phosphoric acid found in the sample did not damage the crop or soil and was not at all injurious or harmful and as such the farmers were not cheated agronomically or financially. The petitioners firm got the fertilizer in machine stitched bags from the manufacturer company and it sold the same without opening or without even knowing its contents. So, no fault was attributable to the petitioners and the manufacturers were directly responsible with respect to the contents of the fertilizer contained in the machine-stitched bags. It was further alleged that the sample in question was analysed higher in free acidity as phosphoric acid and the same was only possible if phosphoric acid was added in the material. Since this acid was very expensive as compared to the super phosphate so no person will add it. The minor increase of free acidity in the sample in question was not harmful to anybody and was due only on account of natural reaction of free phosphoric acid with rock phosphate. The manner in which the sample of super phosphate fertilizer was taken by the inspector was also not proper as neither the quantity of the fertilizer taken nor the types of bags in which the sample was put was mentioned and the FIR was liable to be quashed on this ground alone.

4. In the written statement filed by the respondent the allegations made in the petition were denied and it was contended that the petitioner had violated Clause 19(1)(a) of the Fertilizer (Control) Order, 1985, so he was liable to punishment under S. 7 of the Essential Commodities Act. It was maintained that growth of the Plants is affected if free phosphoric acid is found higher than the maximum prescribed limit and that is why the specification of free phosphoric acid is made. It was further pleaded that the sample was drawn as per instructions laid down in Schedule II of the Fertilizer (Control) Order, in dry, clean, thick gauged polythene bags which were air-tight and were put into the cloth bags along with form, J containing the detailed information regarding the sample drawn and the procedure followed for drawing the sample was specifically mentioned in the complaint itself.

5. I have heard Mr. A. L. Behl, the learned counsel for the petitioners and Mr. A. R. Sidhu, the learned Deputy Advocate General, Punjab, for the respondent, and have perused the record.

6. It was argued on behalf of the petitioners that as per report of the Analytical Chemist, Punjab, Water Soluble P2 P5 percent was found in the sample as 16-03 as against 16% white the permissible tolerance limit was O.1 and free phosphoric acid was found 4.9