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High Court Of Allahabad
S.K. Phaujdar, J.C. Mishra, JJ.
Sadhan Sahkari Samiti Ltd. And Another
Vs.
State of U.P.
Crl. M.W.P. No. 814 of 1998 Connected with C.M.W.P. Nos. 815, 1069 and 1135 of 1998
Decided on: 13th April, 1998
ESSENTIAL COMMODITIES ACT - FERTILISER (CONTROL) ORDER, 1995 - VIOLATION - F.I.R. - QUASHING - GROUNDS - SELLING NON-STANDARD FERTILISER - MACHINE STITCHED BAGS - MANUFACTURER'S LIABILITY - DELAY IN COMMUNICATION OF ANALYSIS RESULT - RE-ANALYSIS - OPPORTUNITY TO ACCUSED - ARTICLE 21 - PROTECTION TO ACCUSED DURING INVESTIGATION.
Fact of the Case:
Multiple petitions were filed seeking to quash First Information Reports (FIRs) lodged under Section 3/7 of the Essential Commodities Act for violation of the Fertiliser (Control) Order, 1995 (Control Order). The petitioners, who were dealers, contended that they could not be held responsible for selling non-standard fertilizer as the bags were received from the manufacturer in machine-stitched condition and they had no knowledge or reason to believe that the fertilizer was not of the prescribed standard.
Finding of the Court:
1. Dealers cannot escape liability for selling non-standard fertilizer by claiming that the bags were received from the manufacturer in machine-stitched condition. The Control Order specifically prohibits the sale of non-standard fertilizer, and it is the dealer's responsibility to ensure that the fertilizer they sell meets the prescribed standards. 2. Manufacturers are liable for violation of the Control Order if they manufacture non-standard fertilizer for sale or distribution. 3. The time limit prescribed in the Control Order for communication of analysis results to the dealer is not mandatory. Delay in communication of the result does not render the prosecution invalid. 4. There is no provision in the Control Order permitting re-analysis of samples. However, the investigating agency should consider the result of re-analysis, if any, before submitting a charge sheet. 5. The absence of a specific provision in the Control Order providing an opportunity to the accused to get the sample reanalyzed does not violate Article 21 of the Constitution. The analysis is conducted by qualified personnel in notified laboratories, and the accused can challenge the results through expert evidence during the trial. 6. Dealers are not required to obtain permission to sell non-standard fertilizer before lodging a report. However, they can apply for authorization to sell non-standard fertilizer under certain conditions specified in the Control Order. 7. The accused may be presumed to have the requisite mental state for the offense under Section 3/7 of the Essential Commodities Act, but this presumption is rebuttable. The accused can prove that they had no knowledge or reason to believe that the fertilizer was non-standard.
Issues: 1. Whether dealers can be held liable for selling non-standard fertilizer in machine-stitched bags received from the manufacturer? 2. Whether manufacturers are solely responsible for non-standard fertilizer? 3. Whether the FIR is liable to be quashed due to delay in communication of analysis results? 4. Whether the FIR is liable to be quashed due to a direction for re-analysis of samples by senior officers? 5. Whether Clause 19 of the Control Order is violative of Article 21 by not providing an opportunity for re-analysis of samples? 6. Whether an opportunity should be given to the dealer to file an application for permission to sell non-standard fertilizer before launching prosecution?
Ratio Decidendi: 1. Dealers are responsible for ensuring that the fertilizer they sell meets the prescribed standards. Selling non-standard fertilizer, regardless of the source, is a violation of the Control Order. 2. Manufacturers are liable for manufacturing non-standard fertilizer for sale or distribution. 3. The time limit for communication of analysis results is not mandatory, and delay in communication does not invalidate the prosecution. 4. There is no provision for re-analysis of samples, but the investigating agency should consider the result of re-analysis before submitting a charge sheet. 5. The absence of a provision for re-analysis of samples does not violate Article 21 as the analysis is conducted by qualified personnel and the accused can challenge the results through expert evidence. 6. Dealers are not required to obtain permission to sell non-standard fertilizer before lodging a report, but they can apply for authorization under certain conditions.
Final Decision: The petitions were disposed of with the direction that the office-bearers of the petitioners in Writ Petition Nos. 814 and 815 of 1998 and the petitioners in Writ Petition Nos. 1069 and 1135 of 1998 shall not be arrested till the submission of the report under Section 173(2) of the Code of Criminal Procedure.
J.C. Mishra, J.
1. The aforesaid petitions have been filed for a writ of certiorari quashing the first information reports lodged under Section 3/7, Essential Commodities Act for violation of Fertiliser (Control) Order, 1995 (hereinafter called 'Control Order' for convenience).
2. In Criminal Misc. Writ Petition No. 814 of 1998, first information report was lodged by Additional District Agriculture Officer, Gola Khazana, Sahjanwa, District Gorakhpur against the Secretary, Sadhan Sahkari Samiti Limited, Raja Vishanpura on the allegation that the sample of D. P. Fertiliser drawn on 10.8.97 was found to be non-standard due to deficiency of nitrogen and phosphorus. The first information report which was lodged on 7.10.97 has been sought to be quashed on the following grounds-(i) the result of the analysis was not communicated to the petitioner. The petitioner is not liable as the fertiliser was purchased from the manufacturer I.F.F.C.O. and was distributed by the Society. The U. P. Co-operative Federation, Lucknow initially got fertiliser from Central Government such as INdian Farmer Fertiliser Corporation conveniently referred as I.F.F.C.O. which is manufacturer and the fertiliser and was distributed to various societies under the direction of U.P. Co-operative Federation, therefore, the petitioner is not responsible for any deficiency ; thirdly it has been stated that on representation by the petitioner, the Chief Development Officer (Co-operative) directed the District Agriculture Officer to get the fertiliser reanalysed and to take action only after the receipt of result of the second analysis by laboratory as there are chances of the fertiliser being adversely affected by moisture.
In Criminal Misc. Writ Petition No. 815 of 1998, the first information report was lodged by District Agriculture Officer, respondent No. 1 on 17.1.1995 on the allegation that sample of D.A.P. spak and DAP Godawari taken on 30.8.1997 from the godown of the petitioner were found to be non-standard on analysis. Firstly, it has been contended that the samples collected on 30.8.1997 were found to be standard on analysis and, therefore, no action was taken against the petitioner nor the result was communicated. The samples were, however, again sent for Chemical analysis to Central Laboratory on 3.12.1997 and were found to be non-standard. On the basis of second analysis the impugned report was lodged. Secondly, it has been stated that before filing the report no opportunity was given to the petitioner as required by clause 23 (b) and (c) of the Control Order. Thirdly, it has been contended that the bags from which samples were taken, were machine stitched and, therefore, the employees of the firm cannot be solely held responsible and prosecuted under Section 3/7 of Essential Commodities Act ; fourthly, it has been contended that the report has been lodged mala fide against the reputed firm as the earlier attempts made by the Agriculture Department proved futile and the petitioner No. 2 could not be arrested. Earlier a report was lodged on 7.10.1997 but in petition under Section 482, Cr. P.C. (Criminal Misc. Application No. 6508 of 1997) arrest was stayed till submission of charge-sheet ; fifthly, it has been stated that on the basis of another analysis of the sample drawn on 13.11.1997 a report was lodged on 21.12.1997 against the petitioner in connection with which the Manager of the firm was arrested but later on released on bail. Then it has been contend that on the allegations, the petitioners cannot be said to have committed violation of the Control Order. Lastly, it has been stated that regulation 19 (1) read with Section 17 of Essential Commodities Act is violative of Article 21 of the Constitution of India, as the accused has been denied opportunity of re-testing of sample given to the petitioner at the time of inspection. Moreover, this provision has been declared ultra vires by Punjab and Haryana High Court in Tarsen v. Union of India, (19
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