IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. M. No.16232-M of 2010 Date of Decision:9.11.2010 Kulwinder Singh .... Petitioner Versus State of Punjab .... Respondent CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. S.S. Swaich, Advocate for the petitioner. Mr. P.S. Paul, D.A.G. Punjab. **** 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. The present petition has been filed for quashing of FIR No.114 dated 10.9.2005 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. The facts in short as stated by the petitioner are that he is Proprietor of M/s. Guru Nanak Khad Store, Village Khant, Tehsil Amloh, District Fatehgarh Sahib. He is a retailer. M/s. Deepak Fartilizers and Chemicals, Village Saunti, Tehsil Amloh, District Fatehgarh Sahib is the distributor of India Potash Ltd., which is Central Government Agency. The Indian Postash Agency imports Potash, DAP Fertilizer etc. from Various countries and distributes the same through various channels and distributors. Presently, Indian Potash Company Ltd. sells DAP Fertilizers through M/s. Deepak Fartilizers and Chemicals in Village Saunti, Amloh. Indian Potash Ltd. (Central Government Agency) had purchased some DAP Fertilizer material from M/s. Oswal Chemicals and Fartilizers, Misadia, Crl. M. No.16232-M of 2010 -2- 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 25.9.2004 at Ludhiana to Indian Potash Ltd. In Ludhiana. As such Indian Potash Ltd., 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 petitioner purchased/got supply of 300 bags 50 kg each of the DAP fertilizer on 22.10.2004 vide Bill No.075 dated 22.10.2004 from M/s. Deepak Fertilizers and Chemicals, Village Saunti, Tehsil Amloh, District Fatehgarh Sahib, which firm is a distributor of India Potash Ltd. Thereafter, the Office of Chief Agricultural Officer, Fatehgarh Sahib drew samples from the petitioner's firm M/s. Guru Nanak Khad Store with regard to the DAP bags. Admittedly the said DAP bags wer esealed and stitched which were originally supplied by M/s. Oswal Chemicals and Fertilizers, Misadia, Village Orissa through the Government Agency M/s. Indian Potash Ltd. The concerned official took sample from machine stitched bags of DAP an sent for chemical examination. The said sample was taken on 13.10.2004 from stitched bags. Thereafter, the Chief Agricultural Officer, Fatehgarh Sahib got registered an FIR against the petitioner, M/s Guru Nank Khad Store, M/s. Deepak Fertilizers and Chemicals, M/s. Oswal Chemicals and Fertilizers, Misadia, Village Orissa and M/s. Indian Potash Ltd. (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 Oswal Chemicals and Fertilizers, Misadia, Village Orissa. As such, if at all, non-compliance of the sub-standard, can only be attributed to the Crl. M. No.16232-M of 2010 -3- manufacturer M/s Oswal Chemicals and Fertilizers, Misadia, Village Orissa and the name of the petitioner and his firm have been unnecessarily dragged into. Learned Single Bench of this Court in the case titled as Tarsem Singh v. 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 as 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 annot 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 Crl. M. No.16232-M of 2010 -4- 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.” In the case of State of Punjab v. Jagdish Chand and another reported as 2004(2) RCR (Criminal) 478, sample of cattle feed was found to be sub-standard. The same was taken from a stitched bag. The 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 v. State of Punjab 1995(3) RCR (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. It was 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. Moreover, there is no allegation that 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 the present petitioner, who has admittedly purchased /got supply 300 bags 50 kg each of the DAP fertilizers from M/s. Deepak Fartilizers and Chemicals, Village Saunti, Tehsil Amloh, District Fatehgarh Sahib which firm is also the distributor of Indian Potash Ltd. Indian Potash Ltd. purchased fertilizers from M/s Oswal Chemicals Crl. M. No.16232-M of 2010 -5- and Fertilizers, Misadia, Village Orissa. In the absence of allegations of any tampering as well as on account of the admitted fact that the sample was taken from machine stitched, no offence under Sections 7(1)(a) of Essential Commodities Act, 1955, 19(1)(a) of Fertilizer Control Order, 1985 is made out. Accordingly, the present petition is allowed and FIR No.114 dated 10.9.2005 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 qua the present petitioner is hereby quashed. 9.11.2010 ( NIRMALJIT KAUR ) rajeev JUDGE