IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 365-MA of 2006 Date of decision: 20-11-2008 State of Punjab through Chief Agricultural Officer, Gurdaspur … Appellant. Versus. R.K.Thukral & others … Respondents. CORAM:- HON’BLE MR. JUSTICE ARVIND KUMAR. Present: Mr. B. S. Sra, DAG Punjab for the appellant. Mr. Denesh Goyal, Advocate, for respondents 1 and 3. … ARVIND KUMAR, J: The State of Punjab has sought permission to file an appeal against the judgment dated 28.11.2005 passed by the Special Judge, Gurdaspur, by dint of which the respondents-accused have been acquitted of the charges under Section 19(1)(a) of the Fertilizer(Control) Order,1985, read with terms and conditions of Dealer Registration Certificate and Section 7and 12AA of the Essential Commodities Act,1955. According to the prosecution allegations, a complaint was received from the Chief Agricultural Officer, Gurdaspur, stating that the firm, namely, M/s Randhawa Fertilizer Ajnala Road Fatehgarh Churian, was issued dealer Registration certificate of 28/5/99 to 27/5/2000 for dealing in fertilizer of M/s Varinder Agro Chemicals Ltd. for dealing in Sher Chhap Single super phosphate 16%(G). Harpal Singh, Fertilizer Inspector, along with Kashmir Singh Bal exercising powers of Fertilizer Inspector, inspected the premises of M/s Randhawa Fertilizer on 11.11.1997. Accused No.2, Jatinder Pal Singh, sole Proprietor of the firm Crl. A. No. 365-MA of 2006 -2- was present at that time at the shop. Harpal Singh after disclosing his identity gave notice of intimation to draw the sample of fertilizer and got the signature of Jatinder Pal Singh on the office copy of the notice. Out of 30 bags of Sher Chhap Single Super phosphate 16% (G) Harpal Singh took out two bags i.e. 15th and 30th and drew the sample with a clean neat and dry sapling probe by using the probe diagonally from one corner to other after mixing the contents of each bag thoroughly. The said bags which were bearing the imprint of M/s Varinder Agro Chemicals,(accused no.3) were machine stitched. The fertilizer so collected weighing about 1200 grams was mixed thoroughly on neat clean and dry polythene sheet. The sample was divided approximately into three parts weighing 400 grams each thick gauged polythene bags. Each polythene bag was put in a cloth bag which were all sealed with the seal of Fertilizer Inspector with letters Fertilizer Inspector Gurdaspur-II Harpal Singh got the signatures of accused Jatinder pal Singh on form J. One part of the sealed sample along with copy of form J was handed over to Jatinder Pal Singh on the spot against receipt while the other two parts were handed over to Narinder Singh Fertilizer Inspector (Enforcement) Gurdaspur. The sample, on analysis, was declared as not according to the specification by the Analytical Chemist which according to Clause 19(1)(a) of Fertilizer (Control) order 1985 Section 7 and 12AA of the Essential Commodities Act, 1955 (10 of 1955) was an offence punishable with fine/imprisonment. Notice of the complaint was sent to the accused-respondents. Accused No.4, R.K.Thukral put in appearance and was granted bail. Accused Jatinder Pal Singh however did not put in appearance and was thus, declared a proclaimed offender. Accused R.K.Thukral was charge-sheeted under Section 7 and 12AA of the Essential Commodities Act, to which he pleaded not guilty and claimed trial. During the trial, the prosecution examined as many as three witnesses, viz., Narinder Singh as PW-1, Harpal Singh, Fertilizer Inspector as PW-2 and Satnam Singh as PW-3. When examined u/s 313 Cr.P.C., the respondent- R.K.Thukral, denied the allegations and pleaded innocence. In defence, he however, did not lead any evidence. The learned trial Court, on appreciation of evidence led in the case, held that the prosecution has failed to connect the accused with Crl. A. No. 365-MA of 2006 -3- the alleged commission of the offence and accordingly, as said above, acquitted him of the charge framed. I have heard the learned State counsel and counsel for the respondents and have also gone through the judgment of the trial Court. Schedule-II of the Fertilizer Control Order,1985, prescribes a procedure for taking of a sample. Learned trial Court has found that proper procedure was not followed while taking the sample as there is no mention in the complaint as well as statement of PW-2 Harpal Singh that the sample was not exposed to rain/sun or that the material being sampled, the instruments and the bags of the sample were free from any adventitious contamination. Trial Court found that the statement of PW-2 Harpal Singh was silent that each bag selected for sampling was thoroughly mixed as possible by suitable means and rightly came to the conclusion while following the case law laid down by this Court that if the sample is not drawn as per procedure, the accused cannot be convicted. Learned trial Court with reference to a judgment of this Court in Diwan Chand v. State of Punjab, 2003(3) RCR(Criminal) 848, has come to the conclusion that as per complaint, accused No.4 was the nominee appointed by the manufacturer and in order to hold a person responsible for the quality control of product it must be stated in the complaint that such person was in overall control of the day to day business of the company or firm, which was found missing in the present case. Under Section 100(4) Cr.P.C., it is laid down that before making a search, the officer conducting the search and seizure shall call upon two or more independent respectable inhabitants of the locality and in the instant case, though the premises were situated in the crowded area but no independent witness was joined by the raiding party. Trial Court has further found that the bags from where the samples were drawn, were machine stitched and the prosecution has failed to prove that the bags were open and restitched as there was no reference in the complaint if any stitching machine was found in the premises. It has also found certain other contraventions which led to the acquittal of the accused. The High Court ought not to interfere with the order of acquittal unless the judgment of acquittal is perverse or highly unreasonable. In the instant case, the judgment of acquittal rendered by Special Judge, Gurdaspur, is neither perverse nor unreasonable and it cannot be said that the trial court based its Crl. A. No. 365-MA of 2006 -4- findings on irrelevant or inadmissible evidence. In the circumstances, this Court is not inclined to grant leave asked for and the application is accordingly dismissed. (ARVIND KUMAR) JUDGE November 20, 2008 JS