All parties involved in the sale of non-standard fertilizers are strictly liable under the Essential Commodities Act and cannot evade responsibility based on their role.

These two Criminal Original Petitions are filed by the second and third accused Company in C.C.No.813 of 2023 on the file of Judicial Magistrate No.V, Coimbatore to quash the said complaint initiated against them under Section 3(2) (a) of Essentials Commodity Act, 1955.

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2. The substance of the complaint which is impugned in this petition :-

The complainant is the Agricultural Officer, Periyanaickenpalayam, Coimbatore District. As per the notification No.II(1)/AG/8/2011, dated 22/10/2010 she has been appointed as Fertilizer Inspector and she is empowered to conduct inspection, draw samples and proceed under the Fertilizer Control Order, 1985.

3. Three samples of Diammonium Phosphate (DAP) kept by the third accused was drawn in the presence of its representative. Out of three samples, one was sent for test at Fertilizer Quality Control Laboratory, Villupuram, another was handed over to the Assistant Director Office, Sankarasmakulam and the third sample given with the third accused. The analysis report received from the laboratory revealed that the sample of fertilizer in question is “non-standard”. Hence, the first accused M/s.Indian Potash Limited, who is the manufacturer of the non-standard fertilizer, the second accused M/s.Sakthi Fertilizers Corporation, Coimbatore, the wholesale dealer of the fertilizer and the third accused M/s.T.Stanes and Company Ltd, Coimbatore, dealer were issued show cause notice along with analysis report. The accused 1 Page No.3/10 to 3 relied to the show cause notice. On the request of the first accused, the sample given to the 3rd accused was sent to re-analysis at Central Laboratory, Nasik, Maharashtra. The report from Central Lab also confirmed that the fertilizer is non-standard. Hence, for committing offence under Section 19(a)(b) of Fertilizer Control Order, 1985 which is punishable under section 7(1) (a) (ii) of Essential Commodities Act, 1955, after obtaining sanction to prosecute from the Director of Agriculture, Chennai, complaint was filed.

4. The said complaint is challenged on the ground that the petitioners/accused 2 and 3 are only the wholesale dealer and dealer respectively. The manufacturer of the Fertilizer is the first accused. Only the manufacturer is responsible for the standard of the product. As wholesale and retail dealers, the petitioners have no knowledge about the quality of the fertilizer. If the fertilizer is of non-standard quality, the manufacturer is the violator of the Act and control order. Only the manufacturer should be prosecuted and not the petitioners. The samples were drawn from stitched bags and if the product is of non-standard, only the manufacturer have the exclusive knowledge about the standard and mens rea to sell non-standard fertilizer. In the absence of allegation that the bag was tampered by the dealers, they cannot Page No.4/10 be held criminally liable for the non-standard fertilizer kept by them for sale.

5. The Learned Counsel for the petitioners rely on the unreported judgment of the Punjab and Haryana High Court rendered in Bhupinder Garg and others -vs- State of Punjab decision dated 07/05/2024, wherein the Learned Judge has held that the dealers and stockist cannot be held liable for non-standard fertilizer if the sample drawn from sealed bags and no proof available against the stockist/dealer for tampering the seal.

6. In the judgment cited supra, the Learned Judge has come to such conclusion in view of the fact Regulation 19(1)(a) of the Fertilizer Control Order been struck down by the Punjab and Haryana High Court in Tarsem Singh -vs- Union of India reported in 1997 (115) PLR 34.

7. From the typed set of papers containing documents indicates that, on 17/08/2020 inspection of the third accused premises by the Fertilizer Inspector had resulted in drawing three samples from the bag containing Diammonium Phosphate (DAP). One of the sample was handed over to the 3rd accused under Form J, another sample sent to the lab at Villupur