Punjab-Haryana High Court
Sham Lal vs State Of Haryana on 24 September, 2003
Equivalent citations: 2004CRILJ1665
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This appeal has been filed by the accused challenging the judgment and order dated 23/25-4-1988, passed by the Special Judge (under Essential Commodities Act), Jind, convicting the accused-appellant under Section 7 of the Essential Commodities Act, 1955 for having contravened the provisions of Fertilizer (Control) Order, 1985 and sentencing him to undergo RI for two years and to pay fine of Rs. 500/- and in default of payment of fine to undergo further RI for three months.
2. The FIR Ex. PA/4 in this case was registered by the police on 4-7-1986 on the basis of a letter dated 3-7-1986 Ex. PA written by Deputy Director, Agriculture, Jind. In the said letter it was written by the Deputy Director, Agriculture that on 10-5-1986, a sample of DAP fertilizer 18:46, was taken from the Co-operative Credit and Service Society Ltd., Rajpura, which fertilizer was manufactured by IFFCO. It was further alleged that the said sample was sent to the Analytical Chemist, Karnal for analysis and on analysis it was found that the same was sub-standard, inasmuch as the fertilizer was having 15:17:5 instead of 18:46 and appeared to be adulterated. It was further alleged that on 10-6-1986, the remaining 120 bags of fertilizer lying in the godown were sealed because fertilizer was an essential commodity. It was prayed that a case be registered against the Secretary of the Co-operative Credit and Service Society, Rajpura under Clause 19-C of the Fertilizer (Control) Order, 1985 and Section 7 of the Essential Commodities Act, 1955, After registration of the aforesaid FIR, on the basis of the aforesaid letter, the case was investigated by the police. Accused-appellant Sham Lal (Secretary of the Society) was arrested and after completion of the investigation challan was submitted in the Court. The accused was charged under Section 7 of the Essential Commodities Act, 1955, to which charge he pleaded not guilty and claimed to be tried. Prosecution examined its evidence. Thereafter, the statement of accused under Section 313, Cr. P.C., was recorded in which he denied the prosecution allegations against him and stated that he was innocent and had been falsely implicated in this case. He admitted that he was Secretary of the Co-operative Society which used to sell fertilizers to the agriculturists. He stated that the villagers had complained to him that the fertilizer was sub-standard and he had brought this fact to the notice of Satbir Singh, A.D.O. In his defence, he examined D.W. 1 Fateh Singh and D.W. 2 Satbir Singh, Agricultural Development Officer (A.D.O.). After hearing both sides and after perusing the record, the learned Special Judge convicted and sentenced the accused-appellant as stated above vide judgment and order dated 23/25-4-1988. Aggrieved against the same, accused-appellant filed present appeal in this Court.
3. I have heard the learned counsel for the parties and have gone through the record carefully.
4. Learned counsel appearing for the accused-appellant submitted before me that while taking the alleged sample on 10-5-1986 no spot memo of any kind was prepared on the spot and even otherwise at the time of taking the alleged sample the Fertilizer Inspector had not followed the mandatory requirements of Clauses 1, 2, 3 and 4 of Part A of Schedule B of the Fertilizer (Control) Order, 1985 and as such the accused-appellant was entitled to be acquitted on this score alone. It was submitted that there was no material on the record to show as to in what container the sample had been drawn. Reliance has been placed on the law laid down by this Court in the cases reported as Hardeo Singh v. State of Punjab (1990) 1 EFR 206; Jarnail Singh v. State of Punjab, 1988 EFR 425 and Charan Dass v. State of Punjab (1987) 2 Chand LR 291.
5. As referred to above, in the letter Ex. PA. on the basis of which formal FIR Ex. PA/4 was recorded, no mention was made as to the manner in which the sample was taken and the mariner in which the sample was sealed. It was also not mentioned as to how many parts of sample were taken at the relevant time. Furthermore, there is absolutely nothing on the record to show that any spot memo was prepared at the time when the sample was allegedly taken by Hari Singh, Fertilizer Inspector on 10-5-1986. From the various documents available on record, it cannot be said as to in what manner the sample was taken and in what manner the sample was sealed by the Fertilizer Inspector, at the time when the sample was allegedly taken on 10-5-1986. Similarly, as referred to above, in the complaint Ex. PA, on the basis of which formal FIR Ex. PA/4 was recorded, these facts are not mentioned. In Clause 1 of Part A of Schedule II of the Fertilizer (Control) Order, 1985, general requirements of sampling having been given. It has been specified that in drawing the samples the following measures and precautions should be observed :
1. General requirements 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 following instruments and the bag of sample 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. Thus should be put in 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 order/manufacturer and the name of Inspector who has collected sample.
6. Similarly, in Clause 2 of Part A of Schedule II, procedure for taking sample from bagged material has been given. It reads as under :--
2. Sampling from bagged material.--
(i) Scale of sampling
(a) Lot (for manufacturers).-- All bags in a single consignment of the material of the sample grade and type drawn from a single batch of the manufacture shall constitute a lot. If a consignment is declared to consist of different batches of manufacture, 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 tonnes) of the material shall constitute a lot.
(b) Lot (for dealers).-- The lot is an identifiable quantity of same grade and type of fertiliser stored at an identifiable place subject to a maximum limit of 200 tonnes.
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 tonnes with a dealer may also constitute one or more lots, if the material (fertilizer) of different sources and brand is available in such quantities.
(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 :
____________________________________________________________________________ No. of bags to be Lot size. (No. of bags) selected for sam-
Pling
(N) (N)
___________________________________________________________________________ XX XX XX XX ___________________________________________________________________________ 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 r th 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 sides in a zig zag 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 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 down in paras 2(1) (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 samples 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 required, and then samples drawn by using suitable sample device.
7. In Clauses III and IV, further details have been specified for collection of sample. These clauses read as under :--
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 slotted single tube with solid conetip 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 c.m. and the slot width may be 1.2 to 1.3 cms. The probe may be used if the physical condition of the fertilizers and the packing material permits its use.
(ii) In case of High Density Polythene Packings and also when the fertilizer material is not in free flowing condition, 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 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 paras 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 level, clean and hard surface and drawn a composite sample by the process of quartering as described under Para 3(ii) or 5.
8. From a perusal of the above, it would be clear that detailed procedure had been mentioned as to the manner in which the sample of fertilizer is to be drawn. In Clause 1(e), it is mentioned that the sample should be kept in a suitable, clean, dry and air tight glass or screwed hard polythene bottle of about 400 gm. capacity or in a thick gauged polythene bag and it should be put in a cloth bag and the same should be sealed. Clause 1(f) provides that each sample bag should be sealed air tight after filling and marked with details of sample, type and brand of fertilizer, name of order/manufacture and the name of Inspector who has collected sample. In the present case, as referred to above, there is no material on the record to show as to in what manner sample was taken. When P.W. 6 Hari Singh, Inspector appeared in the witness-box during examination-in-chief, he did not utter a single word about the manner in which the samples were drawn, except saying that the sample were sealed and one sealed container was given to the accused. It was for the first time during cross-examination when he deposed that the samples of the fertilizers were put by him in three thick polythene bags, which he had taken with him. He, however, admitted that he did not prepare the detail of the sample in Form J as appended to Fertilizer (Control) Order, 1985. P.W. 6 Hari Singh, Inspector nowhere had stated that whether the samples were put by him in cloth bag and whether samples bag was sealed air tight after filling and marking with details of sample etc., as provided under Clause 1(f) above. Furthermore, as referred to above.
P.W. 6 Hari Singh, Inspector had admitted himself that he did not prepare the details of the sample in Form J. appended to the Fertilizer (Control) Order. 1985. In Clause 1(e) above, it is provided that after putting the sample in a cloth bag, it should be sealed with Inspector's seals after putting inside the detailed description as specified in Form J. Thus, this requirement was also not complied with by the Inspector while taking sample. In (1987) 2 Chand LR 291 (supra), while considering the similar provisions contained in Fertilizer (Control) Order, 1957. it was held by this Court that sample was required to be taken in suitable, clean, dry and air tight glass or other suitable containers etc. and requirement of law was not complied with while taking sample and as such FIR against the accused in violation of the mandatory provisions of law deserved to be quashed. Similarly in 1988 EFR 425 (supra), it was held that where the sample was not taken in accordance with the provisions of law, the FIR against the accused was liable to be quashed. Similarly, in (1990) 1 EFR 206 (supra) while considering the provisions of Fertilizer (Control) Order, 1985, it was found that no plausible explanation had been putforth on behalf of the State as to why the procedure adopted for taking the sample or, the manner in which the sample was actually taken does not find specific mention in the FIR. It was also found that this lacuna in the prosecution case could not be filled by giving details at a later stage. It was found that since the aforesaid mandatory legal formalities were not observed or adhered to in the instant case, the FIR and consequent proceedings taken thereunder including framing of charge-sheet against the accused were liable to be quashed.
9. In view of the law laid down by this Court in the aforesaid authorities and in view of the fact that mandatory provisions with regard to taking sample had not been complied with in this case, in my opinion, accused-appellant is entitled to be acquitted.
10. In view of the above, the present appeal is allowed, the judgment and order dated 23/25-4-1988, passed by the Special Judge are set aside and the accused is acquitted of the charge framed against him.