CRM No. M-4582 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-4582 of 2008 Date of Decision: 15.12.2009 Manoj Grover ....Petitioner Versus State of Punjab ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Mansur Ali, 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 order shall dispose of Crl. Misc. No.M-4582 and 12668 of 2008 as the same are arising out from the same FIR. The petitioner in Crl. Misc. No.M-4582 of 2008 is a partner of M/s Deepak Fertilizers and Chemicals, Village Saunti, Tehsil Amloh, District Fatehgarh Sahib. The petitioner is a distributor of Indian Potash Limited which is a Central Government Agency. CRM No. M-4582 of 2008 2 The petitioner in Crl. Misc. No.M-12668 of 2008 is a Chief Manager (Marketing), Indian Potash Limited, Northern Regional Office, Chandigarh. Indian Potash Limited, Ludhiana which actually received the DAP from M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa. Presently the petitioner has retired from the said Central Government Undertaking. However, for the sake of convenience, the facts are being taken from Crl. Misc. No.M-4582 of 2008. This is a petition under Section 482 Cr.P.C. for quashing of FIR No.114 dated 10.09.2005 registered under Sections 7(1)(a) of Essential Commodities Act, 1955, 19(1)(a) of Fertilizer Control Order, 1985 at Police Station Khamano, District Fatehgarh Sahib. Brief facts of the case are that the petitioner is a partner of M/s Deepak Fertilizers and Chemicals, Village Saunti, Tehsil Amloh, District Fatehgarh Sahib. The petitioner is distributor of Indian Potash Limited which is a Central Government Agency. The Indian Potash Agency imports Potash, DAP Fertilizer etc. from various countries and distributes the same through various channels and distributors. Presently, the Indian Potash Company Limited sells DAP Fertilizer through the petitioner's firm in Village Saunti, Amloh. Indian Potash Limited (Central Government Agency) had purchased some DAP Fertilizer material from M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa. The said company M/s Oswal Chemicals and Fertilizers, Misadia, village Orissa is the actual manufacturer of the material. M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa sent one rake of DAP vide Railway Rake No.132 dated 25.09.2004 at Ludhiana to Indian Potash Limited. As such, Indian Potash Limited, Ludhiana actually received the DAP from M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa and the said material was stocked in the Company's warehouse at Ludhiana. The petitioners CRM No. M-4582 of 2008 3 approached the Indian Potash Limited, Ludhiana to directly supply 15 matric tonne of DAP to M/s Guru Nanak Khad Store, District Fatehgarh Sahib. The Office of Chief Agricultural Officer, Fatehgarh Sahib drew samples from M/s Guru Nanak Khad Store, District Fatehgarh Sahib with regard to the various DAP bags. Admittedly, the said DAP bags were sealed and stitched which were originally supplied by M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa through the Government Agency M/s Indian Potash Limited. The concerned official opened a sealed bag and took sample from the said bag of DAP and sent for chemical examination. The said sample was taken on 13.10.2004 from stitched bags. The report of the chemical examiner was received, which as per the FIR was not upto the specifications. Thereafter, the Chief Agricultural Officer, Fatehgarh Sahib got registered an F.I.R against the petitioner and its firm M/s Deepak Fertilizers and Chemicals, M/s Guru Nanak Khad Store, District Fatehgarh Sahib, M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa and M/s Indian Potash Limited (Central Government Agency). Learned counsel for the State has not been able to dispute the fact that the bags containing DAP were stitched and actually manufactured by M/s M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa. Further, the petitioner had only asked the Government Agency M/s Indian Potash Limited to deliver the said bags to M/s Guru Nanak Khad Store, District Fatehgarh Sahib, though, the billing is on the name of the petitioner's firm M/s Deepak Fertilizers and Chemicals. As such, nowhere, either the Government Agency Indian Potash Limited or the petitioner's firm M/s Deepak Fertilizers and Chemicals, Amloh or M/s Guru Nanak Khad Store, Fatehgarh Sahib are actual manufacturers of the said DAP (Oswal) which was recovered by the complainant. CRM No. M-4582 of 2008 4 Thus, it is apparent that the fertilizers were supplied by M/s Indian Potash Limited to M/s Deepak Fertilizers and Chemicals of which the petitioner is a partner and the same was supplied in stitched bags. Further Indian Potash Limited, Ludhiana actually received the DAP from M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa. This Court in the case titled as Tarsem Singh vs. Union of India reported as 1996(2) 283, in paras 12 and 13 held as under :- “12. Summing up Regulation 19 of the impugned Fertilizer Control Order, 1985 in a piece of unfair legislation, it has given an arbitrary power to the Government to prosecute a person, who cannot show in a Court of Law that the report of the Public Analyst who has declared the sample of the fertilizer as `sub-standard' could possibly fall in an error leading to his conclusions while testing the sample. It has also snatched a valuable right of a person who deals in the trade of fertilizer and sells the sealed and stitched bags as supplied to him by the manufacturer. Even this piece of legislation has made such dealer punishable who has properly stored the essential commodities as such `fertilizer'. I am of the opinion that Regulation 19 of the impugned Fertilizer Control Order, 1985 is violative of Article 19 read with Article 21 of the Constitution of India and in its present shape cannot be allowed to operate/stand and as such Regulation 19 of the Control Order is hereby struck down. Thus the first proposition is answered in the affirmative. 13. The second proposition propounded above can also be answered with ease. When the foundation of the prosecution is based upon a piece of legislation, which has not been able to stand the test of scrutiny, all prosecutions launched by the authorities under Regulation 19 read with Section 7 of the Essential Commodities Act are bound to be quashed and it is ordered accordingly.” CRM No. M-4582 of 2008 5 This Court in the case of State of Punjab vs. Jagdish Chand and another reported as 2004(2) R.C.R. (Criminal) 478, sample of cattle feed was found to be substandard. The same was taken from a stitched bag. This Court was pleased to observe 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. Thus, even from the perusal of the F.I.R., no offence under Section 7(1)(a) 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 lying in his custody duly stitched and then sealed and which was ordered from Indian Potash Company Limited, Ludhiana, who had further actually received the DAP from M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa. As such, nowhere either the Government Agency Indian Potash Limited or the petitioner’s firm M/s Deepak Fertilizers and Chemicals, Amloh or M/s Guru Nanak Khad Store, Fatehgarh Sahib are actual manufacturers of the said DAP (Oswal) which was recovered by the complainant. There is no allegation that the stitched bags were tampered with. Thus, the non-compliance of the sub-standard, if at all, can only be attributed to the manufacturer M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa and not to either the M/s Deepak Fertilizers and Chemicals or the Chief Manager, Indian Potash Company Limited. Accordingly, the present petition is allowed and the F.I.R. No.114 dated 10.09.2005 registered under Sections 7(1)(a) of Essential CRM No. M-4582 of 2008 6 Commodities Act, 1955, 19(1)(a) of Fertilizer Control Order, 1985 at Police Station Khamano, District Fatehgarh Sahib qua the present petitioner in Crl. Misc. No.M-4582 of 2008 and the petitioner in Crl. Misc. No.M-12668 of 2008 is, accordingly, quashed. (NIRMALJIT KAUR) 15.12.2009 JUDGE gurpreet