Rajasthan High Court - Jodhpur
M/S Chittari Agricare Pvt. Ltd vs State Of Rajasthan on 12 July, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 5608/2021
M/s Chittari Agricare Pvt. Ltd., 1857/a, 5Th Main, R.p.c.
Layout, Vijaynagar, Bangalore, Karnataka Through Its Area
Sales Manager - Satbir Singh, Aged About 44 Years, S/o Sh.
Sher Singh Desi.
----Petitioner
Versus
State Of Rajasthan, Through Agriculture Office (P.p.) - Cum
- Fertilizer Inspector, Office Of Deputy Director Of
Agriculture (Ext.) , Sri Ganganagar.
----Respondent
Connected With
S.B. Criminal Misc(Pet.) No. 5606/2021
M/s Chittari Agricare Pvt. Ltd., 1857/a, 5Th Main, R.p.c.
Layout, Vijaynagar, Bangalore, Karnataka Through Its Area
Sales Manager- Satbir Singh, Aged About 44 Years, S/o Sh.
Sher Singh Desi.
----Petitioner
Versus
State Of Rajasthan, Through Agriculture Office (P.p.)-Cum-
Fertilizer Inspector, Office Of Deputy Director Of Agriculture
(Ext.), Sri Ganganagar.
----Respondent
For Petitioner(s) : Mr. Rakesh Verma (on VC)
For Respondent(s) : Mr. Aniruddh Purohit, AGA
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 12/07/2022 Learned counsel for the petitioner has preferred this petition with the following prayer:-
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(2 of 10) [CRLMP-5608/2021] "In the wake of above submissions, it is respectfully prayed that this petition may kindly be allowed and the present impugned Complaint No.283/03 dated 24.09.2003 u/s 3 & 7 of Essential Commodities Act, 1955 read with the provisions of Clause 19 of the Fertilizer Control Order, 1985 titled as "State Vs. M/s Chittari Agricare Pvt. Ltd. and Others" as pending adjudication in the Court of Ld. CJM, Sri Ganganagar at Annexure P-1, Summoning Order dated 24.09.2003 at Annexure P-2, Order dated 06.02.2017, as passed by Ld. CJM, Sri Ganganagar at Annexure P-3 and all consequential proceedings arising there from qua the Petitioner-Company may kindly be quashed by this Hon'ble Court.
It is further prayed that further proceedings pending in the present Complaint case in the Court of Ld. CJM, Sri Ganganagar may kindly be stayed till the final decision of the present petition by this Hon'ble Court."
Prayer made in S.B. Crl. Misc. Petition No.5606/2021 is as under:-
"In the wake of above submissions, it is respectfully prayed that this petition may kindly be allowed and the present impugned Complaint No.282/03 dated 24.09.2003 u/s 3 & 7 of Essential Commodities Act, 1955 read with the provisions of Clause 19 of the Fertilizer Control Order, 1985 titled as "State Vs. M/s Verma Agro Agency & Ors." as pending adjudication in the Court of Ld. CJM, Sri Ganganagar at Annexure P-1, Summoning Order dated 24.09.2003 at Annexure P-2, Order dated 06.02.2017, as passed by Ld. CJM, Sri Ganganagar at Annexure P-3 and all consequential proceedings arising there from qua the Petitioner- Company may kindly be quashed by this Hon'ble Court.
It is further prayed that further proceedings pending in the present Complaint case in the Court of Ld. CJM, Sri Ganganagar may kindly be stayed till the final decision of the present petition by this Hon'ble Court."
Learned counsel for the petitioner submits that the present case arises out of a complaint made on 18.10.2000, (Downloaded on 15/07/2022 at 08:30:04 PM) (3 of 10) [CRLMP-5608/2021] whereby one Fertilizer Inspector drew a sample of one fertilizer namely Zinc EDTA Nutriment Brand from the depot of the company situated at Sri Ganganagar.
The precise submission of the counsel for the petitioner is that Fertilizer Control Order 1985 is invoked as issued under Section 3 of the Essential Commodities Act, 1955 and such order stipulated mandatory procedure to be followed by Fertilizer Inspector.
Learned counsel for the petitioner has drawn attention of this Court to the Schedule (II) of para A of Fertilizer Control Order, 1985, the relevant provisions of which are as follows:-
Part-A PROCEDURE FOR DRAWAL OF SAMPLES OF FERTILIZERS
1. General requirement of sampling:
In drawing samples, the following measures and precautions should be observed.
(a) Samples shall not be taken at a place exposed to rain/sun;
(b) The sampling instruments shall be clean and dry when used;
(c) The material being sampled, the sampling instrument and the bags of samples should be free from any adventitious contaminations;
(d) To draw a representative sample, the contents of each bag selected for sampling should be mixed as thoroughly as possible by suitable means;
(e) The sample should be kept in suitable, clean dry and air tight glass or screwed hard polythene bottle of about 400 gm capacity or in a thick gauged polythene bag. This should be (Downloaded on 15/07/2022 at 08:30:04 PM) (4 of 10) [CRLMP-5608/2021] put in a cloth bag which may be sealed with the Inspector's seal after putting inside the detailed description as specified in Form "J" Identifiable details may also be put on the cloth bag like sample No./Code No. or any other details which enables its identification;
(f) Each sample bag should be sealed air tight after filling and marked with details of sample, type and brand of fertilizer, name of dealer/manufacturer/importer and the name of Inspector who has collected sample.
2. Sampling from bagged material:
(i) Scale of sampling
(a) Lot (for manufacturers/importers) All bags in a single consignment of the material of the same grade and type drawn from a single batch of the manufacturer/importer shall constitute a lot. If a consignment is declared to consist of different batches of manufacturer/import, all the bags of each batch shall constitute a separate lot. In the case of a consignment drawn from a continuous process, 2000 bags (or 100 tones) of the material shall constitute a lot.
(b) Lot (for dealers):
The lot is an identifiable quantity of same grade and type of fertilizer stored at an identifiable place subject to a maximum limit of 100 tones. The lot shall be identified by the inspector based on visible appearance of bags, their packing and storage conditions. The stock of less than 100 tones with a dealer may also constitute one or more lots, if the material (fertilizer) or different sources and brand is available in such quantities.
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(c) Selection of bags for sampling:
The number of bags to be chosen from a lot shall depend upon the size of the lot as given in the table below. Lot size (No. of bags) (N) No. of bags to be selected for sampling (n) Less than 10 1 10-100 2 100-200 3 200-400 4 400-600 5 600-800 6 800-1000 7 1000-1300 8 1300-1600 9 1600-2000 10 All the bags of a lot should be arranged in a systematic manner. Start counting from any bag randomly, go on counting as 1,2,3,- up to r and so on, r being equal to the integral of N/n. Thus every rth bag counted shall be withdrawn and all bags shall constitute the sample bags from where the sample is to be drawn for preparing a composite sample.
(ii) Sampling from big godowns/high stackings:
If the procedure given in para 2(i) (c) is not possible to be adopted, the sample should be drawn from the randomly selected fertilizer bags from different layers, from top and from all open side in a zig fashion.
(iii) Sampling from small godowns:
All the fertilizer bags of the same grade and type of each manufacturer though received on different dates shall be (Downloaded on 15/07/2022 at 08:30:04 PM) (6 of 10) [CRLMP-5608/2021] segregated and properly stacked. All bags of same grade and type of fertilizer manufactured by a particular manufacturing unit may be considered as one lot based on their physical conditions and the sample shall be drawn as per procedure laid in Para 2(i) (c) and 4.
(iv) Sampling from damaged stock:
(a) In case of torn or lumpy bags, damaged fertilizer bags or sweepings, the stock should be arranged according to identifiable lots. From each lot the number of bags shall be selected as per procedure 2(i)(c). If the bags allow the use of sampling probe conveniently, the sample should be drawn by sampling probe.
(b) In case it is not possible to use the sampling probe, the bags may be opened and fertilizer material mixed together uniformly by hammering the big lumps or putting pressure, if require and then samples drawn by using suitable sample device.
3. Sampling probe:
(i) An appropriate sampling instrument to be used by the Inspectors for collection of a representative sample is called sampling probe. The probe may comprise of a slotted single tube with soil cone tip made of stainless steel or brass. The length of the probe may be approximately 60 to 65 cms and the diameter of the tube may be approximately 1.5 cm and the slot width 1.2 to 1.3 cms. The probe may be use if the physical condition of the fertilizers and the packing material permits it use.
(ii) In case of High Density Polythylene packing and also when the fertilizer material is not in free flowing condition, (Downloaded on 15/07/2022 at 08:30:04 PM) (7 of 10) [CRLMP-5608/2021] the use of sampling probe may not be possible. In such a case, selected bags for drawing samples may be opened and the fertilizers may be taken out of the bags and spread on a clean surface and samples drawn with the help of a suitable Sampling device which may be made of stainless steel or brass cup.
4. Drawal of samples from bags:
(i) Drawal of sample and preparation of composite samples.
Draw, with an appropriate sampling instrument, (sampling probe) small portions of the material from the selected bags as per procedure in para 2(i) (b) 2(ii) 2(iii) and 2 (iv) (a). The sampling probe shall be inserted in the bag from one corner to another diagonally and when filled with fertilizer, the probe is withdrawn and fertilizer is emptied in a container/or on polythene sheet/or on a clean hard surface and made into one composite sample.
(ii) If the bags do not permit the use of sampling probe, empty the contents of the bags on a level, clean and hard surface and draw a composite sample by the process of quartering as described under para 3 (ii) or 5.+ (iii) In case of chelated micro-nutrients and mixtures of micro-nutrients, the three identical containers of the batch, grade, type and manufacturer, shall be selected which shall constitute the composite samples, provided it is not possible to draw a composite sample of the size given under para 4A (iii). 4A. Weight of one sample.
One sample of fertilizer shall have the approximate weight, as specified below:-
(i) For straight micro-nutrient fertilizers- 100 gms. (Downloaded on 15/07/2022 at 08:30:04 PM)
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(ii) For chelated micro-nutrient fertilizers and 50gms or mixtures of micro-nutrients the maximum packing size of similar quantity
(iii) For other fertilizer and mixtures of fertilizers 400 gms.
5. Preparation of composite sample.
If the composite sample collected from the different selected bags is large then required weight, its size shall be reduced by method of quartering as detailed below:-
Spread the composite sample on a level, clean, hard surface, flatten it out and divide it into four equal parts. Remove any diagonally opposite parts. Mix the tow remaining parts together to form a cone, flatten out the cone and repeat the operation of quartering till a composite sample of required weight is obtained.
6. Preparation of test sample and reference sample.
(i) The composite sample obtained above shall be spread out on a clean, hard surface and divided into three approximately equal proportions + each of the weight as specified in Para 4A. Each of these samples shall constitute the test sample.
(ii) Each test sample shall be immediately transferred to a suitable container as defined under para 1(e). The slip with detailed description may be put inside the sample bad. Each bag shall also be properly labeled as mentioned in Para 1(f)
(iii) Each test sample container shall then be sealed with the seals of the inspector. If possible, seal of the manufacturer/importer/dealer or purchaser as the case may be, may also be affixed.
(iv) One sample so sealed shall be sent to the Incharge of the Laboratory notified by the State Government under clause 29 (Downloaded on 15/07/2022 at 08:30:04 PM) (9 of 10) [CRLMP-5608/2021] or Central Fertilizer Quality Control and Training institure, Faridabad * or Regional Fertilizer Control Laboratories at Bombay, Madras or Kalyani (Calcutta) for analysis and the second give to the manufacturer or importer or dealer or the purchaser as the case may be. The third sample shall constitute the reference sample and shall be sent by the inspector to his next higher authority for keeping in safe custody for production in court, if required."
Learned counsel for the petitioner has relied upon the judgment of this Court passed in Ms. Chittari Agricare Pvt. Ltd. V/s State of Rajasthan reported in 2015 (1) RCR (Criminal) 929. The relevant portion of the judgment reads as follows:-
"11. From a bare look at the contents of the complaint and the seizure memo, it is evident that the inspector whilst drawing the samples made a bald mention therein that the samples were drawn as per law.
12. When the law prescribes that a particular act has to be done in a particular manner, it goes as a corollary that the mode of performing such act should be reflected - in the corresponding documents so as to instill confidence and sanctity in the proceedings and for maintaining fairness. This Court in the case of Chandra Prakash (supra) was dealing with an identical situation. In the aforesaid case, this Court observed that a mere mention in the complaint and the inspection memo that the mandatory procedure as provided in the Schedule was followed would not suffice. It has to be mentioned and elaborated in the seizure memo that the detailed procedure of drawl of samples prescribed in the Schedule was followed. The precise steps taken by the Inspector to draw the samples have to be reproduced in the inspection note so as to reflect subjectively that the procedure as duly followed. When the issue regarding the mandatory provisions being followed is examined by the court, the prosecution would only have the inspection memo and the complaint to fall upon in order to establish compliance. In order to satisfy the court that the due procedure was followed, the procedure obviously has to be reflected in these documents." (Downloaded on 15/07/2022 at 08:30:04 PM)
(10 of 10) [CRLMP-5608/2021] Learned Public Prosecutor opposes the petition, but is unable to refute the controversy being squarely covered by the judgment of this Court in the matter of M/s Chittari Agricare (supra). Learned court below had merely rejected the application on the ground of lack of power to quash the proceedings.
This Court upon perusal of the record and finding that the controversy is no more res-integra and as covered by the judgment of M/s Chittari Agricare (supra) is inclined to allow the present petition.
Accordingly, the present petition is allowed, the proceedings are quashed.
(DR.PUSHPENDRA SINGH BHATI), J.
25-26-NS/suraj/-
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