Improper taking of evidence in violation of mandatory provisions of law can lead to acquittal of the accused.

S.S.Dewan, J.

1. Amrit Lal and Kailash appellants alongwith three other accused, namely, Parjain Kumar, Hem Raj and Mallah alias Mela alias Gurmail Singh were tried for the offence under Section 7 read with Section 3 of the Essential Commodities Act read with clause 13(1)(a) of the Fertilizer Control Order. The aforesaid two appellants were convicted under the said offence and sentenced to two years R.I. and a fine of Rs. 2,500/- or in default to undergo further R.I. for six months each. The aforesaid three accused were, however, acquitted of the charge. Amrit Lal and Kailash appellants have challenged their conviction and sentence in this appeal.

2. The prosecution case is that on 11th August, 1984, Gurmukh Singh, Chief Agricultural Officer, Ludhiana accompanied by his two Inspectors Gurnam Singh and Jasbir Singh raided the house of Amrit Lal accused in village Chhapar, where all the accused were present. In one of the rooms of the house of Amarit Lal, a heap of material resembling Zinc Sulphate was lying and besides that heap 85 bags containing Zinc Sulphate were lying. After completing the formalities, Gurnam Singh Inspector took two samples, one from the heap and the other from the bags for analysis. According to the reports Ex. PH and PJ of the Chemical Examiner, one of the samples contained no zinc at all and the other sample was found to be adulterated as it contained Zinc Sulphate at 6.2 per cent as against 21 per cent. After the registration of the case of Police Station, Dehlon, the accused were sent up for trial.

3. In support of its case, the prosecution examined Gurbax Singh (PW-1) Chief Agricultural Officer, Ludhiana, Rajbir Singh (P.W.-2), Hargurchet Singh (PW-3), Gurmukh Singh (PW-4) Gurcharan Singh (PW-5) Gurnam Singh (PW-6) Assistant Sub Inspector and Kartar Singh (PW-7) Training Officer, Agricultural Department, Faridkot. When examined under Section 313, Criminal Procedure Code, the accused denied the prosecution allegations and pleaded false implication in the case. They tendered two documents Exs. DA and DB in defence.

4. Mr. J.N. Kaushal, learned Counsel for the appellants has urged that the sample of the fertilizer was put in three plastic bags on 11.8.1984 and the same was analysed by the Public Analyst on 13.8.1984. Under Schedule II of the Fertilize (Control) Order, 1957, the sample must not be taken at a place exposed to weather, it should be placed in a suitable, clean, dry and airtight glass or other suitable container and store in shade. It is contended that this mandatory provision was admittedly not complied with in the present case. There appears to be substance in this contention. As per clause 4(a)(ii) of the said Schedule II, each test sample shall be immediately transferred to a suitable container as described under (sic) 1(a) and 1(f) provided with a tight fitting stopper or lid so that the original composition of the fertilizer remains unchanged. In the present case, however, the sample was put in plastic bags and remained in the same condition for three days till analysis. In view of this improper taking of sample in violation of the mandatory provisions of law, this appeal has to be allowed and the appellants must be acquitted of the offence with which they are charged and it is ordered accordingly. Appeal allowed.