Pankaj Naqvi, J.

1. An FIR as Case Crime No.141/2015, under Sections 379/411 IPC and 3/7 Essential Commodities Act, came to be lodged against the applicant on 7.4.2015, alleging that on a raid conducted by O.P. No.2 at the commercial site of the applicant, 4 tankers bearing registration no. HR 38G 9294, UP 82A 9687, UP 14E 9076 and UP 86B 9842, were in all found to contain 46000 litres of kerosene, meant for public distribution system and as the applicant failed to show any requisite authorization to possess kerosene oil, the said tankers along with kerosene oil were seized, a recovery memo prepared after carrying out requisite formalities. After investigation, a charge-sheet was submitted against the applicant on 1.6.2015 under the aforesaid offences and cognizance taken. During the pendency of the case, an FSL report dated 25.8.2015 has been received indicating adulteration in the kerosene oil. The applicant filed an application before the court below, directing the I.O. concerned to take a fresh sample of kerosene from the 4 tankers for its re-analysis, which has been rejected under the impugned order dated 22.9.2015.

2. Heard Sri Ankit Agarwal, learned counsel for the applicant and the learned A.G.A.

3. Learned counsel for the applicant fairly submits that even though neither under the relevant control order nor under the Code, there exists any indefeasible right of the applicant to insist for re-analysis of a seized sample, yet an application for re-analysis could be allowed as the said report would be a credible material either to claim discharge or by way of defence. He relies upon a judgement of the Apex Court in State of Orissa vs. Debendra Nath Padhi, 2005 SCC (Cri) 415 and that of a Division Bench of this Court in Sadhan Sahkari Samiti Ltd. & Anr. vs. State of U.P.& Ors., 1998 JIC 781 (All).

4. Learned A.G.A has defended the impugned order and has submitted that the said authorities are not applicable on the facts of the present case.

5. Seizure is an important facet of criminal investigation which can be exercised by the Investigating authority or any other competent authority with or without the intervention of the court.

6. It is not disputed that neither under the Kerosene Control Order nor under the provisions of the Code, there is any statutory power to insist for a re-analysis of a seized sample but nevertheless such a power can be exercised depending on the facts of each case and in particular the nature of the seized item, i.e., whether it is perishable or not and that too at a particular stage. The seized item in the instant case is kerosene and it is not the case of the applicant that with the passage of time, same is likely to deteriorate or change its form so as to affect the quality of the seized sample.

7. A Division Bench of this Court in Vijai Kumar v. The Union of India and others in Criminal Misc. Writ Petition No. 23535/2015 decided on 24.9.2015, had an occasion to examine the constitutional validity of the Fertilizer Control Order, 1985 on the ground that the control order does not provide any facility for retesting as it is a valid right of defence to challenge the report of the Public Analyst and by depriving the said right, the constitutionality of the control order becomes vulnerable in law. The Division Bench after referring to the Division Bench judgement of the Punjab & Haryana Court in The Director, Agriculture vs. Gurumukh Mal Shibba Mal and others, (1997) 117 PLR 249, considered the following observations which are as under:-

"In case under scrutiny a sample of fertilizer was taken by the authorities as per provisions of Control Order which on analysis was found to be of non-standard grade. With a view to determine the guilt proceedings have been initiated according to law. Evidence is yet to be adduced by the complainant/the prosecution. It is thereafter petitioner is to be given a right of defence. It indeed would be pre-mature to judge the ultimate decision which the Court may tak