Gujarat High Court
Patidar Fertilizers & vs State Of ... on 10 October, 2016
Author: G.B.Shah
Bench: G.B.Shah
R/CR.A/849/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 849 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment?
2 To be referred to the Reporter or not? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the constitution of India,
1950 or any order made thereunder?
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PATIDAR FERTILIZERS & 1....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR AI SURTI, ADVOCATE for the Appellant(s) No. 1 2
MR. MIHIR A SURTI, ADVOCATE for the Appellant(s) No. 1 2
MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 10/10/2016
ORAL JUDGMENT
1. Present appeal assails the judgment and order dated Page 1 of 15 HC-NIC Page 1 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT 11/08/2000, passed by the learned Special Judge and Additional Sessions Judge, Jamnagar, in Special Criminal Case No. 6 of 1994, whereby, the present appellants original accused Nos. 1 and 2 and other two accused, came to be convicted for the offence punishable under Section 7(1)(a), 2 of the Essential Commodities Act, 1955 (for brevity, 'the EC Act') for breach of Order 19(1)(a) of Fertilizer Control Order, 1985 (for brevity, 'the Order 1985') and sentenced to fine of Rs.1,000/ each and except Patidar Fertilizers, the original accused No. 1 and Adarsh Chemicals and Fertilizers Ltd., the original accused No. 3, the original accused Nos. 2 and 4 sentenced to undergo simple imprisonment (SI) for three months and in default of payment of fine, to undergo further SI for one month.
2. Facts of the prosecution case in nutshell are that the appellant No. 1 is the partnership firm running in the name and style of Patidar Fertilizers which was having dealership of accused No. 3 company namely Adarsh Chemicals and Fertilizers Limited, engaged in the business of manufacturing of fertilizer. The appellant No. 2 was one of the partners of the appellant No. 1 company. The original accused No. 3 was the manufacturer of Page 2 of 15 HC-NIC Page 2 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT Single Super Phosphate Fertilizer, having manufacturing unit at Udhna, District: Surat. Original Accused No. 4 Jayant K. Patel was, at the relevant point of time, working as a Sales Officer of original accused No. 3 company at Rajkot. It is the case of the prosecution that on 01/06/1994, the original complainant visited the premises of the appellant No. 1 company at Jamjodhpur and in presence of the appellant No. 2, drew a sample of Single Super Phosphate Fertilizer, stocked in the godown of the company, from a sealed, pack bag of fertilizer manufactured by the original accused No. 3 company and sent for analysis in the laboratory situated at Gandhidham (Kuchchh). The said sample since found to have without adhering or confirming to the prescribed standards or parameters laid down under the Order 1985 as according to the prosecution, the water soluble phosphate (as P205) percent by weight, minimum should be 16% while the Analysis Report revealed that it was found to be of 13.68%, showcause notices were issued against the appellant No. 1 herein as well as the accused No. 3 calling for explanation. Since the explanations tendered were not satisfactory, a complaint came to be lodged against the accused for the aforesaid offence. 2.1 Pursuant to the complaint, investigation was carried out. After Page 3 of 15 HC-NIC Page 3 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT investigation, chargesheet was filed and the case was tried in a summary way under Chapter 22 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code'). The prosecution produced oral as well as documentary evidence and at the end of such trial, the learned trial Judge concluded as aforesaid, by the impugned judgment and order, giving rise to prefer the present appeal.
3. Heard Mr. Mihir A. Surti, the learned advocate for the appellants and Ms. Reeta Chandarana, the learned Additional Public Prosecutor for the respondent - State.
4. Before proceeding with the effective final hearing of the matter, Mr. Surti, the learned advocate for the appellants - accused invited attention of the Court to the judgment and order dated 21/04/2010, passed by the coordinate Bench of this Court in Criminal Appeal No. 843 of 2000, which was filed by the original accused Nos. 3 and 4 challenging the very same judgment and order and submitted that the said appeal, filed at the instance of original accused Nos. 3 and 4, came to be allowed by setting aside impugned judgment and order and the original accused No. 4 ordered to be set free. In that view of the matter, the learned Page 4 of 15 HC-NIC Page 4 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT advocate for the appellants herein submitted that the original accused No. 3 was the manufacturer of the article in question and the original accused No. 4 was the Sales Officer of the accused No. 3 company and when the manufacturer of the article in question itself has been acquitted of the offence and the fact that the present appellant No. 1 - original accused No. 1 is the partnership firm of which, the present appellant No. 2 - original accused No. 2 was the partner, having dealership of the accused No. 3 company and the fact that the article seized was drawn from a sealed, pack bag of fertilizer manufactured by the accused No. 3 company, the aforesaid judgment and order directly applies to the case on hand and accordingly, without entering into the merits of the case, the present appellants also require to be extended the benefit of the same and acquitted of the offence in question and accordingly, requested to the allow the present appeal also.
5. Ms. Chandarana, the learned Additional Public Prosecutor, for the respondent - State though supported the impugned judgment and order, however, has fairly conceded that the Criminal Appeal No. 843 of 2000, filed by the original accused Nos. 3 and 4 has been allowed by setting aside the very impugned judgment and Page 5 of 15 HC-NIC Page 5 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT order and accordingly, requested to pass the appropriate order, in the interest of justice.
6. I have considered the submissions made by the learned advocates for the parties and also gone through the judgment and order passed by the coordinate Bench of this Court in Criminal Appeal No. 843 of 2000, filed by the original accused Nos. 3 and 4. Since, it is of much relevance, this Court deems it proper to reproduce the entire judgment and order, as under:
"1. Present Appeal is directed against the judgment and order dated 11.08.2000 delivered by the Learned Special Judge & Additional Sessions Judge, Jamnagar in Special Criminal Case No.6 of 1994 recording the conviction of the accused for the violation of the Fertilizers (Control) Order, 1985 and under Section 7(i)(a)(ii) of the Essential Commodities Act and imposing sentence of SI for three months and fine of Rs.1,000/, in default, to undergo SI for one month.
2. The facts of the case briefly summarized are as follows:
2.1 The complainant visited the premises of the accused for the inspection and collected sample of pesticides (WS), which was found in a sealed bag manufactured by Adharsh (sic. Adarsh) Chemicals & Page 6 of 15 HC-NIC Page 6 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT Fertilizers Ltd., Udhana and on the basis of sample and analysis, it was found that the sample was not as per the standard and thereby the accused have violated the provisions of the Fertilizers (Control) Order, 1985 read with provisions of the Essential Commodities Act and thereby the offence under Section 7(i)(a)(ii) of the Essential Commodities Act has been committed.
2.2 On the basis of the aforesaid complaint, case was registered being Special Criminal Case No.6 of 1994. Since it is a summary case, plea of the accused was recorded at Exh.6. The accused denied to have committed any such offence and, therefore, the learned trial Court proceeded with the trial.
2.3 In order to bring home the charges leveled against the accused, the prosecution has examined several witnesses and has also produced documentary evidence.
2.4 After recording the evidence of the prosecution witnesses was over, the Learned Special Judge & Additional Sessions Judge, Jamnagar recorded the further statements of the accused under Section 313 of the Criminal Procedure Code.
2.6 (sic. 2.5) After hearing the learned APP as well as learned advocate for the accused, the Learned Special Judge & Additional Sessions Judge, Jamnagar convicted the accused for the alleged offence and Page 7 of 15 HC-NIC Page 7 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT sentenced them as stated hereinabove.
3. Learned counsel, Mr.Unwala for the appellantaccused referred to the testimony of the complainant at Exh.11 and submitted that as stated by this witness, when the sample was collected from a sealed bag received from the manufacturer, Adharsh (sic. Adarsh) Chemicals & Fertilizers Ltd., Udhna, which rules out any possibility of tampering or adulterating. He further submitted that it is not even the case of the prosecution that there was any adulteration either by the accused or by the manufacturer. He, therefore, submitted that it is more in the nature of some kind of nominal variation in the standard. He submitted that as per the required standard, P2O5 should be dissoluble with 16% as against 31.68% (sic. 13.68%) found in the sample. He, therefore, submitted that the phosphoric acid was also found more but the difference is very less and considering this marginal different, it is not the case of the prosecution about any adulteration and such variation may be due to various circumstance beyond control. He, therefore, submitted that the Court below has recorded the conviction erroneously without appreciating this aspect merely on the basis of the report of the Public Analyst, which was produced at Exh.16 and 26, which suggest that the sample does not conform to the prescribed standard. He submitted that even if the sample may not have conform standard, the Court ought to have found out whether there was any adulteration or any irregularity. If there is no such evidence then merely because of said marginal difference, the conviction could not have Page 8 of 15 HC-NIC Page 8 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT been recorded. Learned counsel further referred to the testimony of P.W.No.2, Exh.24 and submitted that as stated by this witness, he has not carried out test or analysis as admittedly it was done by one Mr.A.R. Balas. Learned counsel submitted that this witness has stated that he has simply drawn the sample and, thereafter, the analysis has been made by his assistant. He submitted that he himself has not carried out test and report at Exh.26 made by him is based on the report at Exh.16. Again he submitted that as stated by this witness, he has not mentioned about the details as to the analysis made, the procedure or method followed or which method was followed. He, therefore, submitted that the report at Exh.26 is in fact based on the report at Exh.16, for which, there is no evidence of the analyst. He submitted that the report at Exh1.6 is made by the Analyst, Mr.A.R. Balas, who is not examined by prosecution and, hence, the accused could not crossexamine this witness on this aspect.
He submitted that the report at Exh.26 is made on the basis of the report at Exh.16 and that report itself does not contain any details as to the procedure followed or any other method adopted. He, therefore, submitted that the conviction is based merely on the basis of said report and, therefore, the impugned judgment and order recording conviction is erroneous. Learned counsel further submitted that admittedly the sample has to be of minimum 400 gram, which is not there. He also referred to the report and the testimony of P.W.No.2 and submitted that he has also admitted that if the sample is less than 400 gram, it would Page 9 of 15 HC-NIC Page 9 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT affect the result. He, therefore, submitted that the impugned judgment and order recording conviction is erroneous.
4. Learned A.P.P., Mr.Jani resisted the application and submitted that as discussed in the impugned judgment, the P.W.No.2 has specifically stated in his testimony at Exh.24 that analysis was made by his assistant in his presence and under his guidance and, therefore, it cannot be said that P.W.No.2 himself cannot testify or the report is not valid. It is submitted that the variation is admittedly found as stated in the report at Exh.16 and 26 suggesting that the sample does not conform with the standard and, therefore, breach has been committed. Therefore, learned A.P.P., Mr.Jani submitted that whether the analysis has been made by X or Y, in which, it is required to be considered that the analysis was made in his supervision and under the guidance of Mr.A.R. Balas and, therefore, the report cannot be brushed aside. He submitted that it is stated that the details are not mentioned in the register as well as the details as to the procedure and the method adopted is also not mentioned actually in the report at Exh.16 that by itself would not make it unbelievable. For that purpose, he referred to the testimony of P.W.No.2, Exh.24 and submitted that he has explained as to what has transpired and the method of P2O5 is provided in FCO ScheduleII on the basis thereof, therefore, the sample does not conform with the standard and, therefore, merely because there is no mention in the report about the procedure and the method, the impugned judgment and order cannot be said to have been erroneous. However, Page 10 of 15 HC-NIC Page 10 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT he also fairly stated that report is not of minimum 400 Gram as required.
5. In view of the rival submissions, it is required to be considered whether the impugned judgment and order could be sustained or not. It is evident from the record that there are no allegations with regard to any adulteration and the same has been collected from the sealed bag supplied by the manufacturer, Adarsh Chemical & Fertilizer Ltd., therefore, the contention of the learned advocate that whatever the marginal difference is there could not be attracted to the present accused as he has simply received from the manufacturer, for which, he has no control. Therefore, first aspect, which is highlighted is with regard to any possibility of adulteration or manipulation, which does not appear to so and that is not the case of the prosecution.
6. Another facet of the arguments with regard to report at Exh.16 and 26 that the conviction is recorded only on the basis of said report and opportunity of crossexamination has not been given to the accused as the person, who has carried out the analysis is not examined is required to be appreciated. The report at Exh.16 has been made by Mr.A.R. Balas and P.W.NO.2 has stated in his testimony at Exh.24 that in his presence and under his supervision and guidance, Mr.A.R. Balas had carried out test and analysis. He has also explained with regard to the procedure stating that P2O5 FSC ScheduleII is applicable and he has also stated that report was prepared and on that basis, the analysis has been Page 11 of 15 HC-NIC Page 11 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT made, however, admittedly in the report at Exh.16, there is no mention about any details including the procedure and the method followed. The report at Exh.24 is made on the basis of the report at Exh.16. Therefore, the basis for which the report at Exh.26 is report at Exh.16 and the person, who carried out the said test, may be under the supervision of P.W.No.2, who is not examined. Had he been examined, the accused could have opportunity to crossexamine with reference to the report including as to how he has arrived at conclusion. Admittedly, report at Exh.16 does not contain as to any procedure and any details and as also method adopted or followed. Further admittedly, sample, which is required to be taken has to be minimum 400 gram and it is also stated by P.W.No.2 in his testimony at Exh.26 that otherwise, it would affect the analysis report. A close look at the report at Exh.16 and 26 would suggest that the sample is of 1 gram, which was tested. Therefore, again it would raise doubt with regard to manner in which the analysis was made and the test was carried out. Even assuming that the analysis was made by Mr.A.R. Balas under the guidance and under the supervision of P.W.No.2, atleast manner and method and the details as to the procedure followed ought to have been recorded, which his not to be found in the report at Exh.16. It transpires that the report, Exh.26 is based no the report at Exh.16 and, therefore, it would raise doubt about the conclusion. Further the case of the prosecution is at the most that the sample does not conform or adhere to the standard prescribed and difference is marginal. Therefore, Page 12 of 15 HC-NIC Page 12 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT when there are not allegation for adulteration and as stated by the learned counsel, it could be for various reasons when it is supplied by the manufacturer, it would not be appropriate to record conviction for said marginal difference based on the report, which cannot be readily accepted.
7. In view of the aforesaid facts and circumstances, this Court is of the opinion that recording conviction of the accused for the violation of the Fertilizers (Control) Order, 1985 and under Section 7(i)(a)(ii) of the Essential Commodities Act cannot be sustained.
8. In the result, Criminal Appeal accordingly stands allowed. Judgment and Order dated 11.08.2000 delivered by the Learned Special Judge & Additional Sessions Judge, Jamnagar in Special Criminal Case No.6 of 1994 recording the conviction of the accused persons for the offence under Section 7(i)(a)(ii) of the Essential Commodities Act, 1955 is quashed and set aside and the appellant no.2 viz., Jayant K. Patel is ordered to be set at liberty forthwith, if not required in any other offence. He is on bail and, hence, his bail bonds stand cancelled. The fine paid by the appellantsaccused, if any, is ordered to be refunded."
6.1 It is not in dispute that the original accused No. 3 company was the manufacturer of the article in question which was seized by the original complainant and the original accused No. 4 was the Sales Officer of the original accused No. 3 company. It is also Page 13 of 15 HC-NIC Page 13 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT not in dispute that the article seized was from a sealed, pack bag of fertilizer manufactured by the original accused No. 3 company. It is also a fact that the present appellants were having the dealership of the accused No. 3 company and as such, they were not the manufacturer of the article in question and last but not the least, for the offence in question, in the same criminal case, the original accused Nos. 3 and 4 have been acquitted and accordingly, when the present appellants are not the manufacturer of the article in question and having only dealership of the accused No. 3 company, which is an undisputed fact, and the article seized was from a sealed, pack bag manufactured by the accused No. 3 company, present appellants are also required to be extended the benefit of the aforesaid findings and conclusion arrived at by the coordinate Bench of this Court and accordingly, in the considered opinion of this Court, without entering much into the details, present appeal also requires to be allowed by setting aside the impugned judgment and order and the appellants herein are required to be set free.
7. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 11/08/2000, passed by Page 14 of 15 HC-NIC Page 14 of 15 Created On Tue Oct 11 00:18:04 IST 2016 R/CR.A/849/2000 JUDGMENT the learned Special Judge and Additional Sessions Judge, Jamnagar, in Special Criminal Case No. 6 of 1994, is hereby set aside and the appellants herein - original accused Nos. 1 and 2 are acquitted of the charge for which, they are convicted and sentenced. The appellant No. 2 is on bail and hence, he needs not to surrender to custody except he requires so in any other offence and his bail bond shall stand cancelled. Registry to return the R&P to the trial Court forthwith.
[ G. B. Shah, J. ] hiren Page 15 of 15 HC-NIC Page 15 of 15 Created On Tue Oct 11 00:18:04 IST 2016