1 S.B. CIVIL WRIT PETITION NO.4452/1996. K.K. Kaul Vs. Union of India Date of Order :: 9th March 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Vijay Kumar Aggarwal, for the petitioner. Mr. V.K. Mathur with Mr. Lokesh Mathur and Mr. Vipul Singhvi, for the respondent No. 1. ..... BY THE COURT: Upon taking up this matter for final hearing, the learned counsel appearing for the contesting respondent submitted at the outset that the issue herein essentially stands covered by the decision of the Hon'ble Supreme Court as rendered in the case of A.S. Parmar Vs. State of Punjab & Ors.: Civil Appeal No. 1465/2001, decided on 27.08.2002; and, while pointing out that similar writ petitions have already been decided by this Court on 24.01.2008 following the said decision in A.S. Parmar's case, the learned counsel for the contesting respondent urged that the present writ petition also deserves to be decided accordingly. However, the learned counsel for the petitioner resisted such submissions and contended that the said decision in A.S. Parmar's case would not squarely cover the questions involved in this matter nor all the arguments sought to be advanced have been considered in 1 the decision as rendered by the Hon'ble Punjab and Haryana High Court that was not interfered with by the Hon'ble Supreme Court in A.S. Parmar's case. Having regard to the circumstances and at request, the learned counsel for the petitioner was heard at length. The petitioner filed this writ petition on 18.11.1996 essentially questioning the validity of the Fertilizer (Control) Order, 1985 ['the Control Order' hereafter] issued under Section 3(1) of the Essential Commodities Act, 1955 ['the Act of 1955' hereafter] and further questioning the action taken against him under the said Control Order. The petitioner amended his petition by moving an application on 26.11.2001 so as to particularly put a challenge to clause 29 of the said Control Order The relevant background aspects of the matter are that the petitioner had been working as the General Manager, Shri Ram Fertilizers & Chemicals, a unit of DCM Shri Ram Consolidated Limited, the Company dealing in manufacture of fertilizers and marketing imported DAP after importing the same from the USA. It is pointed out that on 14.11.1994 at about 4:30 p.m., three test samples of DAP were drawn by the respondent authorities from the premises of a dealer firm M/s Legha & Beniwal Company, Nai Mandi, Gharsana, District 2 Sriganganagar and one of the said samples was sent to the Fertilizer Quality Control Laboratory, Jodhpur under the communication dated 15.11.1994. The laboratory found the said sample of DAP as non-standard. The respondent No.2 informed the dealer about the failure of the sample and upon receipt of the information from the dealer, the petitioner’s Company is said to have made a reply in detail but and however, a criminal complaint case (No. 7/1995) was instituted against the petitioner and dealer concerned under the provisions of the Act of 1955 read with clause 19 of the Control Order. While questioning the aforesaid proceedings, the petitioner has in the first place contended in the writ petition that all the fertilizers are highly hygroscopic in nature and excess and free moisture affects the composition marginally; and that the analyst was supposed to determine the moisture loss and to report on the percentage loss in weight and having not done so, there was no question of the same having been taken into consideration while determining the percentage of water soluble phosphate in the sample. According to the petitioner, the minor deficiency as reported by the analyst was because of the lapses during the analysis of the sample and, therefore, the report of analyst cannot be relied upon. It is also 3 suggested that the analysis of fertilizer was subject to variation from laboratory to laboratory due to different methods of analysis and, if properly analysed, the sample in question would not have been found sub-standard. It is also pointed out that the analyst had not reported about any adulterant in the sample. Apart from the aforesaid grounds relating to the correctness and probative value of the analyst’s report, the petitioner has taken other grounds in the writ petition that the Control Order is ultra vires and is liable to be quashed essentially because no provision has been made therein to send the sample for re-testing from any independent laboratory inspite of the fact that as many as three sample are drawn. It is contended that for denial of opportunity to challenge the Government laboratory’s report, the petitioner’s rights are prejudiced and in the absence of any provision for re-testing, he cannot produce the evidence to challenge the report of the Government laboratory. It has also been contended that such provisions for re-testing of the sample do exist in other enactments like Section 24 (3) of the Insecticides Act, Section 13(2) of the Prevention of Food Adulteration Act and Section 25 (3) of the Drugs and Cosmetics Act. It is submitted that clause 29 of the Control Order in question 4 makes the provision for analysis of the sample only by the named laboratories, i.e., either Central Fertilizer Quality Control and Training Institute or any other laboratory notified for this purpose by the State Government which is, according to the petitioner, apparently inconsistent with the objective of drawing three samples. It has, however, been pointed during the course of submissions by the learned counsel for the petitioner that the Central Government, by its Notification dated 16.01.2003, proceeded to insert clause 29B and so also clause 32A in the said Control Order whereby the laboratory referred in clause 29(1) has been designated as referee laboratory for the purpose of analysis of any sample of fertilizer and it has been provided that a sample, whose analysis was challenged, could be sent for referee analysis to any one of the other laboratories except those which are located in the State or where the first analysis was done; and further an Appellate Authority has been provided before whom an appeal could be preferred, inter alia, against the analysis report of the fertilizer testing laboratories notified by the State Government and for reference analysis of the sample within thirty days from the date of receipt of the analysis report. It is submitted that such provisions came to be inserted in the Control Order by the 5 Central Government only after realising the merits of the contentions as being urged by the petitioner but then, omission of such provisions at the inception has worked to the prejudice of the petitioner inasmuch as the questioned samples, if now sought to be sent for referee analysis, the report may not be truly representing the status, character, and contents of the sample that must have gone obvious changes. The learned counsel for the petitioner also attempted to submit, with reference to the decision in the case of M/s Pepsi Foods Limited & Anr. Vs. Special Judicial Magistrate & Ors.: 1997(6) SCALE 610, that the Magistrate is not a silent spectator at the time of recording of preliminary evidence and cannot summon the accused in a mechanical manner; and that in the present case, even the complaint was made in a mechanical manner and cognizance was also taken in a mechanical manner and thus, the proceedings against the petitioner cannot be sustained. Having given a thoughtful consideration to the submissions as made on behalf of the petitioner and having examined the relevant provisions of the Control Order and so also the relevant decisions, this Court is clearly of opinion that this writ petition remains bereft of substance and deserves to be dismissed. 6 So far the challenge to the validity of the Control Order is concerned, this Court is unable to find that the same has been sought to be questioned on the ground of want of legislative competence or any of the provision of the Control Order being contrary to any provision of the Constitution of India or the parent statute. What has been contended is that denial of getting the third sample examined from the other laboratory works to the detriment of the persons sought to be proceeded against on the basis of one analysis report. The contention of the petitioner that under the provisions of the Control Order as then existing, he was deprived of getting the sample re-examined from any other/independent laboratory could only be said to be pointing out an alleged omission in the given provision but for that reason, the Control Order or any of its provisions cannot be considered unconstitutional and invalid. The contention as urged on behalf of the petitioner that other enactments do contain the provisions regarding testing of third sample has neither any worth nor any merit nor is of any effect. Merely because the procedure provided in any other enactment makes re-testing permissible, it cannot be said that such re-testing is indiscriminately required to be provided in every such matter where a number of samples are 7 drawn. Though in the case of A.S. Parmar, where the Senior Manager of the Indian Farmers' Fertilizers Co-operative Limited was facing the threat of prosecution in a similar case of sample failure, the Hon'ble Supreme Court, of course, found the writ petition premature for criminal proceedings having not been taken against the said petitioner but then, while dismissing the appeal, the Hon'ble Supreme Court specifically extracted the relevant passage from a previous decision of the Hon'ble Punjab & Haryana High Court in the case of the Director, Agriculture Punjab, Chandigarh & Anr. Vs. Gurmukh Mal Shibba Mal & Ors. on the validity of the Control Order that could usefully be reproduced for ready reference hereunder:- ''18. 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 quilt 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 take. An accused person of course has a right to set up defence in terms of section 293 Cr.P.C. What would be the nature of defence can again be a matter of sheer guess? In any case one could visualise that petitioner would adduce all such evidence so as to prove his innocence. May be he examines another expert to cross-examine the official witness or makes reference to some celebrated authority on law relevant to the point in controversy to establish that the conclusion arrived at by the analyst is indeed impermissible and as a last resort can make out a case for the Court to send the third sample for its analysis by another laboratory. With these safeguards at his command it can be stated that procedure prescribed is neither arbitrary nor unreasonable or unfair. On examining the matter on the touch stone of Articles 19(1) and 21 and various decisions of the apex 8 Court, we are of the view that Fertilizer Control Order, 1985 has been enacted by competent Legislature and the same does not violate any express provision of Constitution of India. Resultantly, we accept these appeals, set aside the judgment of Shri R.L. Anand, J.. thereby order dismissing the writ petition.'' Learned counsel for the petitioner attempted to argue that in the said decision, the Hon'ble Punjab & Haryana High Court has not considered the various relevant aspects of the matter and has not considered that the Control Order denied the appropriate opportunity of having the sample re-examined as provided under the other statutes. The submission is not correct. Having gone through the said decision in the case of the Director, Agriculture Punjab, Chandigarh & Anr. Vs. Gurmukh Mal Shibba Mal & Ors., as reported in (1997) 117 PLR 249, this Court is left with no doubt that all the aspects of the challenge to the said Control Order were considered in detail by the Division Bench of the Hon'ble Punjab & Haryana High Court including the ground that such provisions existed in the Insecticides Act, Drugs Act etc.; and, while not agreeing with such submissions and with reference to the decisions of the Hon'ble Supreme Court, the Division Bench pointed out that the procedure prescribed by law would mean the law prescribed by Parliament or by a State Legislature and that the Parliament or the State Legislature has powers to change 9 the procedure by amending the law and the question as to whether the procedure prescribed by the Legislature is reasonable and just and fair depends upon the circumstances of each case; and, as noticed above, in relation to the Control Order in question found that with various safeguards available, the procedure as prescribed was neither arbitrary nor unreasonable nor improper. There appears neither any reason nor basis nor even propriety to take any view different from the one taken by the Hon'ble Punjab & Haryana High Court that has been noticed, and not disapproved, by the Hon'ble Supreme Court. The learned counsel for the petitioner attempted to argue that reference to Section 293 of the Code of Criminal Procedure ('Cr.P.C.') may not be apposite and by reading out the provisions of Section 293 Cr.P.C. contended that thereunder the petitioner may not be able to get the sample tested by a third laboratory. This Court, again, cannot agree with such contention for the specific observation as made by the Hon'ble Supreme Court in A.S. Parmar that reads as under:- “As and when the appellant is tried in a court of law it is always open to the appellant to take such defence as may be permissible under law including defence under section 293 Cr.P.C.” Of course, the writ petition in A. S. Parmar’s case was considered premature because charge sheet on the strength 10 of the analyst’s report had not been filed and criminal proceeding had not commenced but then, the Hon'ble Supreme Court specifically pointed out that such a person when tried in the court of law could take such defence as may be permissible including those under Section 293 Cr.P.C. The contentions as sought to be urged beyond and rather contrary to the observations of the Hon’ble Supreme Court could only be rejected as worthless. The provisions of the Control Order as were available at the time of filing of this writ petition suffered from no vice of unconstitutionality. Moreover, with insertion of clauses 29B and 32A in the said Control Order in the year 2003, even the procedure has been prescribed for referee analysis. As to what would be the effect of the said inserted provisions or of what bearing they would be in the case as taken up against the petitioner are the matters in the realm of guesswork; and at this stage and in these proceedings, this Court would not like to make any comment thereupon. So far this writ petition and particularly so far the challenge to the Control Order is concerned, this Court is clearly of opinion that such challenge is not been based on any legal and sustainable grounds. The other limb of submissions as attempted to be made 11 about mechanical drawing of complaint and taking of cognizance does not appear calling for dilatation herein because such an aspect of the matter has not been taken in the basic grounds of this writ petition. Having regard to the overall circumstances of the case, no comments are required even in relation to the grounds as suggested in the writ petition regarding the process of analysis of the sample in question and probative value of the analyst’s report. Suffice is to say that it is always open for the petitioner to take such defence as permissible and to take recourse to the appropriate remedies in accordance with law. It appears that in view of the interim order as passed in this case, further proceedings in Complaint Case No. 7/1995 in the Court of Special Judge (Essential Commodities Act), Sriganganagar have remained stayed for all these years. It is high time that such proceedings are taken up and proceeded by the said Court in accordance with law. Whatever other submissions are sought to be made, of course, the petitioner is free to make before the Court concerned or in any other appropriate proceedings but there appears no justification whatsoever that in the name of a baseless challenge to the Fertilizer (Control) Order, 1985, the scope of this writ petition be permitted to be enlarged even to the extent that order 12 taking cognizance is allowed to be questioned on the alleged omission on the part of the Trial Court to consider any relevant material. The rights of the petitioner for being proceeded in accordance with law are adequately safeguarded in view of the observations as made by the Hon'ble Punjab & Haryana High Court in the case of Gurmukh Mal Shibba Mal and so also by the Hon'ble Supreme court in the case of A.S. Parmar (supra). In fact, while deciding the other writ petitions on 24.01.2008, of course, after recording the agreement of the parties that the matter stood covered by the decision of the Hon'ble Supreme Court in the case of A.S. Parmar, this Court made it clear the rights for the petitioner would remain as were recognised in A.S. Parmar's case. This Court does not find any reason to take any different view of the matter. As a result of the discussion foregoing and following the decisions aforesaid, this writ petition is also dismissed while clarifying that it shall be not of any impediment for the petitioner taking recourse to the appropriate remedies in accordance with law nor of prejudice to his other legal rights including those recognised in the aforesaid decisions in Gurmukh Mal Shibba Mal and A.S. Parmar. There shall be no order as to costs of this writ petition. 13 (DINESH MAHESHWARI), J. Mohan/ 14