Gujarat High Court
Bharat vs State on 12 May, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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CR.A/1033/1994 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1033 of 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHARAT
FERTILIZERS IND - Appellant(s)
Versus
STATE
OFGUJ - Opponent(s)
=========================================================
Appearance
:
MR
JB PARDIWALA for
Appellant(s) : 1,
MR KL PANDYA, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 12/05/2010
ORAL
JUDGMENT
1. The present appeal is directed against the judgment and order rendered in Essential Commodities Case No.11 of 1988 by the learned Addl.Sessions Judge, Valsad, dated 13.9.1994 recording acquittal of the accused Nos.1 and 2 for the offence punishable under Section 13(1)(a) of the Fertilizer Control Order, 1985 and also further recording conviction of the accused Nos.3 and 4 for the offences punishable under Section 13(1)(a) of the Fertilizer Control Order, 1985 and also for the offence under Section 3 of the Essential Commodities Act read with Section 7 and imposing sentence of simple imprisonment for three months and fine of Rs.1000/-, in default, simple imprisonment for one month on accused No.4 and imposing fine of Rs.2000/- upon accused No.3 Company with a direction and in case of default, to initiate appropriate proceedings for recovery of the fine.
2. The facts of the case, briefly summarised, are as under:
The appellant No.3 is a Company engaged in the manufacturing of chemical fertilizers and pesticides and also in the business of wholesale trade of such pesticides. The original accused Nos.1 and 2 were the dealers and accused No.4 is the General Manager of appellant-orig.accused No.3-Company.
The Agricultural Inspector had visited the premises of the accused No.1 society at village Chanvai, District Valsad and during the inspection and verification, collected the samples of the pesticides and it was found that Bharat Chhap Single Super Phosphate was found, manufactured and supplied by the appellant -orig.accused No.3 Company and in the presence of the Manager, the samples were collected on random basis as per Schedule-II of Fertilizers Control Order, 1957. It was found on analysis of the sample collected that the element of Phosphoric acid (p2O) was found as 12.9% instead of 10% and therefore, it was not adhering to the standard prescribed under the Fertilizers Control Order. On the basis of this, a show cause notice was issued and the clarification was also made by accused Nos.1 and 2 stating that they purchased the said pesticides from original accused No.3-appellant herein. On the basis of that, show cause notice was issued to original accused Nos.3 and 4 and the complaint came to be lodged for violation of the Fertilizers Control Order, 1957 and under Section 3(1)(a) read with Section 3 and 7 of the Essential Commodities Act. On the basis of the complaint, case was registered as Essential Commodities Case No.11 of 1988. Since it is a summary case, the plea of the appellants-accused was recorded and thereafter, the learned trial Judge proceeded with the trial.
3. After recording of the evidence of the prosecution witnesses was over, the learned Special Judge, Valsad, recorded the further statement of the appellants-accused under Section 313 of the Code of Criminal Procedure.
4. After hearing the learned APP and the learned advocate appearing for the accused, the learned Special Judge, Valsad recorded conviction of the present appellants-accused Nos.3 and 4 and imposing sentence as stated hereinabove.
5. It is this judgment and order which has been assailed in this appeal, inter alia, on the grounds set out in detail in the memo of the appeal contending that the procedure for drawing of sample of fertilizer is governed as per Schedule-II of the Fertilizers Control Order 1985 has not been followed and therefore, there is clear violation of the procedure of collecting the sample. It is further contended that the report of the Analyst cannot be said to be full and complete by any stretch of imagination. It has been contended that an essential commodity and the sample fertilizer which was not found in conformation to the standard prescribed by the Fertilizers Control Order. Therefore, it is contended that as per the Analysis Report at Exh.127, it cannot be said that the same is complete and on the basis of which the conclusion can be arrived at that the sample was found to be of sub-standard. Therefore, the conviction recorded based on such a report is erroneous. It is also contended that in any case, the report the Analyst may be admissible in evidence. Yet the opinion of the fertilizer analysis is merely a piece of evidence in the form of opinion and the conviction could not be based on such an opinion. The Court has to come to the conclusion based on the entire evidence as to whether the fertilizer was not adhering to the standard prescribed under the Fertilizers Control Order, 1987. It is also contended that in order to make the accused vicariously liable, he must be in Charge at the relevant time and therefore, it has been submitted that one must be In charge of the business of the Company and must be responsible for the conduct of business and then only, Section 10 of the Essential Commodities Act could be attracted.
6. Learned advocate Mr.Pardiwala referred to Exh.1 and submitted that initially the complaint was filed against the dealer and thereafter as there was disclosure of purchase by the accused Nos.3 and 4, they have been joined. He submitted that accused No.3 is a Company and Accused No.4 is the Manager of the Company. Learned advocate also referred to the complaint as well as the testimony of PW.1-Exh.126 and submitted that he has referred to the method of taking sample by random method. Further, learned advocate submitted that the procedure for collecting the sample was not followed as provided in Schedule-II of the Fertilizers Control Order. For that purpose, he referred to Fertilizers Control Order and submitted that if the number of bags is less than 100 and above, then the procedure is prescribed. He submitted that the bags have to be arranged and thereafter, the sample has been drawn as per the procedure. Learned advocate submitted that there is deficiency or defect in drawing the sample and if the sample is drawn defectively and if there is a difference found in the sample, then the accused cannot be blamed. Learned advocate emphasised that even in spite of such procedural defect, the difference in the sample and the standard prescribed is nominal about 3% and therefore, the conviction could not have been recorded. Learned advocate has also referred to and relied upon the testimony of PW.2 who is the Manager of the Society and he has denied the suggestion that the Inspector has collected the sample on the basis of random method for four bags. He has also stated that during the monsoon season, there could be a seasonal effect due to the moisture and it could have some bearing. Learned advocate for the appellants also submitted referring to the testimony of this witness and also the report of the Analyst at Exh.127 and submitted that the report Exh.127 suggests that the Phosphoric acid is solvent in water is 12.97% and the moisture was 5.27% and the accepted standard of Super Phosphate was 15%. He submitted that therefore, considering this aspect, if the report is considered, the difference is very small. He also referred to the provisions of Section 3 as well as 7 of the Essential Commodities Act. It was submitted that the minimum percentage as prescribed in the Fertilizers Control Order has been found and the sample has to adhere to the standard prescribed for Phosphoric acid. He, therefore, submitted that the prosecution has not followed the prescribed standard or norms with regard to the Phosphoric acid which could be 4% and there is no much difference as stated in the report. He submitted that the Analyst has not been examined and Sodium contents adhere to the standard prescribed i.e. 16% and whether the Phosphoric acid is a different element which could have been explained if the analyst or some technical opinion is brought on record. No such evidence is brought on record. He further submitted that merely on the basis of the report of the Analyst at Exh.127, conviction cannot be based as it is merely an opinion of an expert which is required to be considered in light of the material evidence in each case. He further submitted that the opinion of the expert could be admissible in evidence, but the deposition/testimony of the expert is required to be considered which could be subjected to the cross examination and such an opinion can be referred for the purpose of clarification. It was submitted that such an opportunity is not provided. The reliance placed on the basis of such report is mis-placed and erroneous. Therefore, learned advocate submitted that the impugned judgment and order recording conviction is erroneous.
7. Learned APP Mr.K.L.Pandya submitted that the sample has been taken on random basis with regard to the fertilizer. It has been stated by PW.1 in his testimony at Exh.126 that as per Schedule-II, it cannot be said that there is any irregularity in collecting the sample. He submitted that the samples are collected in a proper manner. Some defect or lapse would not necessarily affect the accused and ultimately, it is the test and the analysis which would reflect as to whether the standard has been adhered to or not. He, therefore, submitted that as per required standard p2O with dissolution is 16.9%, as against that what was found in the sample was 95%. He, therefore, submitted that the Phosphate p2O is one aspect and Phosphoric acid is different. But again the difference is found as per the report of the analyst. He, therefore, submitted that as the samples have not conformed with the standard prescribed, there is breach of Fertilizers Control Order and also the Essential Commodities Act. Learned APP referred to Exh.127 which has been produced on record and has been exhibited which is an outcome of the test in the Laboratory which can be believed and once this report is accepted as admissible in evidence, it would establish that the sample is not in conformity to the standards. Therefore, the provisions of the Control Order and the Essential Commodities Act have been violated and the impugned judgment and order is just and proper. He submitted that the submission that the analysis has not been misconceived, as once admissible in evidence based on the analysis and therefore, the report cannot be brushed aside and therefore, the impugned order recording conviction is just and proper.
Learned APP Mr.Pandya has referred to New Lexicon Webster Dictionary to point out regarding Phosphoric Acid and Phosphate which are different items having distinguished identity. For that purpose, he has referred to the definition and stated that they are all basically one item which can be utilized for the purpose of manufacturing of fertilizers. It is required to be mentioned as provided in the Dictionary, Phosphoric acid means a colourless Crystaline bitter acid (H3PO4) used in manufacturing of fertilizer. Similarly, Phosphorus is referred to as an organic compound of Phosphorus and Phosphate refers to any salt or ester of Phosphoric acid. Again, it is used in manufacture of fertilizer and the basic character of both is that they are used in manufacture of fertilizer as H2PO4 which is helpful to absorb Oxygen easily and it is used as a reducing agent.
8. In rejoinder, learned advocate for the accused submitted that though the report Exh.127 is relied upon, there is nothing to suggest as to the method of analysis or test. Further, the person who has carried out the test is not examined and if the method which has been adopted for the purpose of analysis is not mentioned, what was the procedure, the witness is not cross examined to clarify this. Reliance is placed on the report at Exh.127 for the purpose of conviction would not justified. He submitted that merely on the basis of the report, the conviction recorded in the impugned judgment and order is erroneous.
9. In view of the rival submissions, it is required to be considered whether the impugned judgment and order calls for any interference. It is evident from the record that there is no allegation with regard to adulteration and the same has been collected from the sealed packet supplied by the manufacturer-the appellant herein. Therefore, the contention made by learned advocate that the difference is not much and there could be some difference due to various factors including weather etc. which is required to be appreciated. The submission has been made that it would not be proper to record conviction merely on the basis of the report of the Analyst suggesting the difference in the standard prescribed and the sample collected. It is required to be mentioned that, admittedly, the difference is not much in the standard prescribed and the samples collected with regard to p2O and the Phosphorous. Admittedly, the conviction is recorded on the basis of the the analysis report at Exh.127. Though such report is placed on record, there is no mention what as the procedure followed or the test applied, the manner and method for carrying out the test. Further as the analyst is not examined, the accused could not have the opportunity to cross examine him for further necessary clarification with regard to the possible reasons for such variations in the sample and the prescribed standard. Thus, as rightly submitted, the conviction is merely on the basis of the analysis report at Exh.127 which is in the form of opinion which may be admissible in evidence, but the Analyst himself has to testify as regards his opinion on the basis of which he has come to the conclusion. That has not been done. Even assuming that the analysis was made by the Analyst as per the procedure prescribed and also carried out, even then the degree of variation is small. This aspect has to be considered in light of the factual background that PW.2 in his testimony has also stated about the possible weather effect also. Therefore, if the moisture is higher, it can have some kind of effect and also it could increase the weight. PW.1-Inspector, in his testimony at Exh.126 has also stated that the percentage of moisture should be 12% whereas it was found to be 5.27%. Similarly, the percentage of Phosphorous should have been 16% as against that it was 12.98% meaning thereby, 3% less. If this is accepted at the face value, it would reveal that there could a weather effect as the moisture may be more or less dependent upon the climate at the relevant time and on that basis, the percentage of moisture is 3% and admittedly, therefore, merely there is some kind of variation, it would not be proper to record conviction for the alleged violation of breach of Control Order and Essential Commodities Act and no further evidence corroborating the intention or any further allegations with regard to any deliberate act for adulteration etc. Moreover, it is well accepted that in order to establish the guilt of the accused for the alleged offence, the evidence like the opinion or the report of the Analyst has to be corroborated by his testimony and other evidence. In facts of the case, such an opportunity is not given and also the submissions with regard to the environmental effect are required to be considered. Therefore, even assuming that there was some lapse or difference in the sample and the standard prescribed, that by itself, would not lead to the conclusion for recording the conviction for the alleged offence. For the conviction of an accused for the offence, the intention or the knowledge or some kind of ill-design is required to be established beyond reasonable doubt. That is not the case here. Therefore, even if the case of the prosecution is accepted with regard to the non-adherence to the standards, the benefit of doubt, as discussed hereinabove is required to be given to the accused.
10. In the result, the appeal is accordingly allowed. The impugned judgment and order delivered by the learned Addl.Sessions Judge, Valsad, dated 13.9.1994 in Essential Commodities Case No.11 of 1988 recording conviction of the appellants-accused for the offences with which they have been charged is hereby quashed and set aside. The appellants-accused are ordered to be set at liberty forthwith, if their presence is not necessary in any other offence. The appellants are on bail. Their bail bonds shall stand cancelled. Fine, paid, if any, shall be refunded to the appellants.
(Rajesh H.Shukla, J.) Sreeram.
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