CRM No. M-32153 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-32153 of 2008 Date of Decision: 15.12.2009 Kehar Singh ....Petitioner Versus State of Punjab ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Ashok Aggarwal, Advocate for the petitioner. Mr. Anupinder Singh Grewal, Addl. A.G., Punjab for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C. for quashing of FIR No.140 dated 01.10.2007 registered under Sections 7 and 12 AA of Essential Commodities Act, 1955 (Act 10 of 1955) read with clauses 2(h) (2) and 19(a) of Fertilizer Control Order 1985 at Police Station Kurali, District S.A.S. Nagar, Punjab. Brief facts of the case are that Thandi Agro Co. is distributing Chemical Fertilizer in Ropar District as a wholesale dealer of Indian Potash Limited, S.C.O. No.443-44, Sector 35-C, Chandigarh, which is a Central Government Agency for the sale of Fertilizer manufactured by Oswal Chemical and Fertilizer Limited (Unit Pardeep) District Jagat Singh Pura, Orissa (here-in-after referred to as “Oswal Chemicals”). In this manner, CRM No. M-32153 of 2008 2 Thandi Agro Co. is authorized wholesale dealer of Indian Potash Limited to sell their Oswal DAP 18.46% IPL manufactured by Oswal Chemicals and the petitioner is the Managing Director of Thandi Agro Co. Janta Agro Service Centre, Kurali sent 150 Quintals of Oswal DAP 18.46% IPC Fertilizer. On the basis of demand, the order was placed with Indian Potash Limited for the supply of the said fertilizer (here-in-after referred to as DAP). The Indian Potash Limited actually received the DAP from M/s Oswal Chemicals and the said material was stored in the warehouse of Indian Potash Limited at Rajpura. Thereafter, Indian Potash Limited on the said demand made to the company directly, supplied 150 Quintals of DAP to M/s Janta Agro Service Centre, Kurali. The said supply was made by M/s Indian Potash Limited on 25.08.2004 directly from their Rajpura Godown to Janta Agro Service Centre, Kurali by road through their transporter M/s Ashish Road Lines, Old Grain Market, Rajpura. Thereafter, the Office of Chief Agricultural Officer, Roopnagar drew sample from M/s Janta Agro Service Centre, Kurali with regard to various DAP bags. Learned counsel for the State has not been able to dispute the fact that the sample was drawn from the bags which were stitched and actually manufactured by M/s Oswal Chemicals and Fertilizers, District Jagat Singh Pura, Orissa. It is also not denied that the said DAP bags were originally received by the Government Agency M/s Indian Potash Limited. Thus admittedly, the sample was collected from stitched bags and there is no allegation in the FIR that the bags were either opened, tampered with or pilfered and admittedly DAP, material in dispute had been manufactured by M/s Oswal Chemical and Fertilizer Limited (Unit Pardeep) District Jagat Singh Pura, Orissa and neither the petitioner nor the company i.e. Thandi Agro Pvt. Ltd. Kharar ever came into possession of the said fertilizer and not even touched the said material as the material was delivered by M/s Indian Potash Limited, a representative of the Manufacturer to M/s Janta CRM No. M-32153 of 2008 3 Agro Service Centre, Kurali and the material was supplied directly from Rajpura to Kurali by the transporter of M/s Indian Potash Limited. Therefore, no criminal liability can be fastened upon the petitioner, who is the Managing Director of M/s Thandi Agro Co. The case of the petitioner is fully covered by the judgment of this Hon'ble Court passed in case of Arun Kumar and others vs. State of Punjab 1995(3) RCR (Criminal) 231. Para 2 of the said judgment is reproduced below :- “2. There is no dispute that the Chief Agricultural Officer who has been examined as PW-1 visited the shop of the appellants on 27.06.1984 and took the sample of the fertilizer. The case of the prosecution is that the fertilizer is substandard and it does not contain the total Nitrogen and Amonical Nitrogen as prescribed standard. The report of the Analytical chemist in the Fertilizer Control Laboratory in Punjab Agricultural University, Ludhiana was marked Ex. PC. According to P.6, the Analytical Chemist who examined the sample, the total Nitrogen was 24.5% against 25% and Anomical Nitrogen contents were 11.5% in total nitrogen and 1% in Anomical Nitrogen. The said variation appears to be negligible. According to PW.6 has not given the permissible limit of the variation in respect of Amonical Nitrogen. Thus, the variation appears to be negligible. Apart from that, the fertilizer was purchased admittedly by the appellants from National Fertilizer Limited, Nangal. His evidence also shows that the fertilizer had been purchased by the appellants from National Fertilizer Limited, Nangal. The evidence of DW.1 also further shows that if there is any manufacturing defect, the responsibility lies on the National Fertilizers Limited, Nangal as the bags are stitched with automatic machines. Further, the evidence of PW.2 who was the Enforcement Inspector, who was also present at the time of taking sample from the shop of the appellants, also deposed CRM No. M-32153 of 2008 4 that the bags of fertilizers found in possession of the appellants, were machined stitched. Therefore, it is clear that the bags of fertilizer, found by the Chief Agricultural Officer and his party had been received by the appellants in their original form without any intermeddling or tampering. If this is the case,it cannot be said that the accused had any culpable mental state for committing any offence either under Section 7 of the Essential Commodities Act or under the provisions of Fertilizers Control order. If there is any defect, in the manufacturing process and the bags were intact as supplied by the National Fertilizers Limited to the appellants' shop, it cannot be said that the accused were responsible for any substandard in the fertilizer. In this view of the matter, I am of the opinion that the appellants are entitled to have an order of acquittal in their favour. Accordingly, I allow the appeal and set aside the conviction and sentence imposed by Presiding Officer, Special Court, Faridkot. The accused is accordingly acquitted. The amount of fine, if paid, is directed to be refunded to the appellants.” Further, the petitioner had only asked the Government Agency M/s Indian Potash Limited to deliver the said bags to M/s Janta Agro Service Centre, Kurali, though, the billing is on the name of the petitioner's firm M/s Thandi Agro Co. of which the petitioner is the Managing Director. As such, nowhere, either the Government Agency Indian Potash Limited or the petitioner's Company M/s Thandi Agro Co. or M/s Janta Agro Service Centre, Kurali are the actual manufacturers of the said DAP (Oswal) which was recovered by the complainant. Thus, it is apparent that the fertilizers were supplied by M/s Indian Potash Limited to M/s Thandi Agro Co. of which the petitioner is a Managing Director and the same was supplied in a stitched bags. As observed by this Court in the case of State of Punjab vs. Jagdish Chand and another reported as 2004(2) R.C.R. (Criminal) CRM No. M-32153 of 2008 5 478, sample of cattle feed was found to be substandard. The same was taken from a stitched bag. This Court was pleased to observed that the accused, who was a dealer, cannot be held guilty. Further, in the case of Arun Kumar and others vs. State of Punjab 1995(3) R.C.R. (Criminal) 231, the accused purchased bags of fertilizer from National Fertilizer Limited and kept the same in original form without any tampering. Sample from bags found to be sub-standard. This Court held that it could not be said that accused had any culpable mental state for committing offence and for manufacturing defect, accused cannot be held responsible. Admittedly, the said DAP bags were sealed and stitched which were originally supplied by M/s Oswal Chemicals through Government Agency M/s Indian Potash Limited. It is also admitted fact that concerned official opened sealed bags and took sample from the said bags of DAP and sent for chemical examinations. Thus, even from the perusal of the F.I.R., no offence under Section 7 of Essential Commodities Act, 1955 is made out qua the petitioner, who is only a dealer and is not responsible for the sub-standard fertilizer in the bag which was ordered from Indian Potash Company Limited, Ludhiana, and neither the petitioner nor M/s Thandi Agro Co. ever came into possession of the said fertilizer. As such, nowhere either the Government Agency Indian Potash Limited or the petitioner’s firm M/s Thandi Agro Co. or M/s Janta Agro Service Centre, Kurali are actual manufacturers of the said DAP (Oswal) which was recovered by the complainant and the non-compliance of the sub-standard if at all can only be attributed to the manufacturer M/s Oswal Chemicals and Fertilizers Ltd. (Unit Pardeep) District Jagat Singh Pura, Orissa and not to either M/s Thandi Agro or the Chief Manager, Indian Potash Company Limited. Accordingly, the present petition is allowed and the F.I.R. No.140 dated 01.10.2007 registered under Sections 7 and 12 AA of CRM No. M-32153 of 2008 6 Essential Commodities Act, 1955 (Act 10 of 1955) read with clauses 2(h) (2) and 19(a) of Fertilizer Control Order 1985 at Police Station Kurali, District S.A.S. Nagar, Punjab qua the present petitioner is, accordingly, quashed. (NIRMALJIT KAUR) 15.12.2009 JUDGE gurpreet