The impact of the quashing of Regulation 19 of the Fertilizer Control Order, 1985 on the petitioner's case and the absence of specific allegations of adulteration in the FIR influenced the court's decision to grant bail.

M.L. Koul, J. - Petitioner Subhash Chand has been hauled up in FIR No. 536 dated 25.10.1996 by the Police Station City Kaithal, under Section 420 Indian Penal Code and Sections 4, 5 and 25(1) of the Fertilizer Control Order, 1985, on the complaint of Surinder Singh Sarpanch filed with the Police that on 24.10.1986 he purchased six bags of Super Phosphate on which Jawala Brand was written from the petitioner proprietor of M/s. Public Khad Bhandar, Ashoka Cinema Road, Kaithal at the rate of Rs. 140/- per bag. However the shop-keeper did not issue any pacca receipt and on seeing the fertilizer got suspicious about the quality and asked for the receipt but he issued me a kutcha receipt. Thereupon I suspected that the shop-keeper had adulterated fertilizer. In this regard case was registered and the investigation was conducted.

2. While arguing the matter Mr. Rajan Gupta, learned counsel for the petitioner has referred to judgment passed in Civil Writ Petition No. 16700 of 1995, passed by Honble Mr. Justice R.L. Anand, on September 19, 1996 whereby Regulation 19 of the Fertilizer Control Order, 1985 read with Section 7 of the E.C. Act, has been quashed and the learned Judge while dealing with the matter has observed as under :-

"Summing up, Regulation 19 of the impugned Fertilizer Control Order, 1985 is a piece of unfair legislation. It has given an arbitrary power to the Government to prosecute a person who cannot show in a court of law that the report of the Public Analyst who has declared the sample of the fertilizer as sub-standard, could possibly fall in an error leading to his conclusions while testing the sample. It has also snatched a valuable right of a person who deals in the trade of fertilizer and sells the sealed and stitched bags as supplied to him by the manufacturer."

Even this piece of legislation has made such dealer punishable who has properly stored the essential commodities as such.

3. In the instant case FIR reads that six bags of Super Phosphate on which Jawala Brand was written were purchased by the complainant from the accused-petitioner and nowhere any assertion is made in the FIR at any time that this fertilizer was adulterated by the petitioner. The only allegation levelled by the complainant is that he was not issued the pucca receipt, which made him suspicious that the brand supplied was adulterated.

4. The petitioner has been in jail for the last two months and the investigation has been completed in the matter. Once the very Regulation for the violation of which the petitioner has been charged, stand quashed by this court, I do not feel that he should remain in jail as a matter of punishment on the ground that he has committed the offence under Section 420 Indian Penal Code as well. This is a matter which requires consideration by the trial court at the time of trial. At the moment once the very Regulation has been quashed, I feel that it is a fit case where bail can be granted to the accused- petitioner. Hence, he is ordered to be released on bail in the amount of Rs. 40,000/- with one surety and personal recognizance bond in the like amount to the satisfaction of Chief Judicial Magistrate, Kaithal.