Punjab-Haryana High Court
Gurdip Singh vs The State Of Punjab on 13 January, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-883-SB of 1999 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-883-SB of 1999
Date of decision: 13.01.2011
Gurdip Singh
........ Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
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PRESENT: Mr. Dinesh Goyal, Advocate, for the appellant.
Mr. R.S. Sidhu, AAG, Punjab.
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JORA SINGH, J.
Gurdip Singh S/o Joginder Singh, preferred this appeal to challenge the judgment of conviction and order of sentence dated 9.9.1999, rendered by Special Judge, Amritsar, in Special Sessions Case no. 17 of 1992/1997, arising out of FIR No. 195 dated 12.12.1990, registered under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred as 'the Act'), at Police Station B Division, Amritsar.
By the said judgment, he was convicted under Section 7 of the Act and sentenced to undergo Rigorous Imprisonment for a period of CRA-S-883-SB of 1999 -2- one year and to pay a fine of ` 25,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of three months.
Prosecution story, in brief, is that on 27.11.1990, written complaint was presented by the Chief Agricultural Officer, Amritsar and according to the complaint, Baldev Singh, Fertilizer Inspector (Enforcement), Amritsar, alongwith the other officers had raided the shop of the accused on 25.9.1990 and he was found in possession of 700 bags of Zinc Sulphate 21% Branch Kissan manufactured by Kissan Zinc (India) Private Limited, Amirtsar. Six bags of the fertilizer were separated at random to serve as sample and 1500 grams of fertilizer through probe was separated from each of the six gunny bags by using the probe diagonally from one corner to another and in that way fertilizer taken out from the six bags was kept on a polythene sheet and was thoroughly mixed and divided into three parts. Each part was put into separate polythene bags which were neat and clean and dry. Each polythene bag was sealed. Polythene bags were further transferred into three bags of cloth alongwith form-J. Cloth bags were sealed with the seal bearing impression 'FI-23 ASR' One of the sample parcel was handed over to the accused. Remaining two sealed parcels were deposited with Jawand Singh, Agricultural Officer, Amritsar. On 1.10.1990, one sealed parcel was sent to the Fertilizer Quality Control Laboratory, Ludhiana by the Chief Agricultural Officer. As per report of the laboratory sample was not according to the specification and was found to be of non-standard. Ultimately, complaint in writing was CRA-S-883-SB of 1999 -3- presented for registration of the case under Section 7 of the Act for violating clause 19 of the Fertilizer Control Order, 1985. After completion of investigation, challan was presented in the Court.
Accused was charge-sheeted under Section 7 of the Act, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Veer Singh, Assistant Sub Inspector (Agriculture), Amritsar, tendered his affidavit Ex. PA.
PW-2 Banarsi Dass, Sub Inspector (Agriculture), stated that he had joined the raiding party headed by Baldev Singh, Fertilizer Inspector. Chief Agricultural Officer Sawinder Singh Bajwa, was also with the raiding party. Party had gone to the premises of M/s Kissan Zinc (India) Pvt. Limited. Gurdip Singh, proprietor of the firm was found present. After checking 35 tonnes of Zinc Sulphate was found stored, it was found that he was the licencee for manufacturing and selling Zinc Sulphate. Six bags of the fertilizer were separated at random to serve as sample. Sample was drawn from those six bags separated at random. One sealed parcel was handed over to the accused. Other two sealed parcels were kept by Baldev Singh, Fertilizer Inspector.
PW-3 Inspector Charan Dass, stated that on 12.12.1990, on receipt of letter Ex. PB from Chief Agricultural Officer-cum-Registering Authority, Amritsar, formal FIR Ex. PB/1 was recorded. He had recorded the statements of the witnesses and accused was arrested on CRA-S-883-SB of 1999 -4- 21.12.1990. Record was also taken into police possession vide memo Ex. PC attested by him and the witnesses. He had also prepared the rough site plan Ex. PD, with its correct marginal notes. After completion of investigation challan was presented in the Court.
PW-4 Baldev Singh, Agricultural Development Officer, stated that on 25.9.1990, he along with Chief Agricultural Officer, had gone to the premises of M/s Kissan Zinc (India) Pvt. Limited, situated at 281-A, East Mohan Nagar, Amritsar. Accused was found present there. He was a licence holder for manufacturing and selling of zinc suphhate. 35 tonnes of zinc sulphate was in his stock. Fertilizer was in the gunny bags for sale. Six bags at random were separated and 1500 grams of fertilizer through probe was separated from each of the six gunny bags by using the probe diagonally from one corner to another and in that way fertilizer taken out from the six bags was kept on a polythene sheet and was thoroughly mixed and divided into three parts. Each part was put into three separate polythene bags which were neat, clean and dry. Each polythene bag was sealed. Polythene bags were further transferred into three bags of cloth alongwith form-J. Cloth bags were sealed with the seal bearing impression 'FI-23 ASR' One of the sample parcel was handed over to the accused. Remaining two sealed parcels were deposited with Jawand Singh, Agricultural Officer, Amritsar.
Report of the Fertilizer Quality Control Laboratory, Ludhiana, Ex. P-3, was also tendered into evidence.
After close of prosecution evidence, statement of accused CRA-S-883-SB of 1999 -5- under Section 313 Cr.P.C. was recorded. He denied all the allegations of the prosecution and pleaded to be innocent.
In defence, DW-1 Jaspal Singh, Clerk, DC Office, Amritsar, stated that as per record brought by him there was 30 mm rain on 25.9.1990, in District Amritsar. Ex. DW-1/A is the truce copy of the entry of the register.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and carefully gone through the evidence available on file.
Learned defence counsel for the appellant argued that according to the prosecution story, sample was drawn on 25.9.1990, by the raiding party headed by Baldev Singh, Fertilizer Inspector. According to the Fertilizer Inspector, on return to the office remaining two sealed parcels were deposited with Jawand Singh, Agricultural Officer, Amritsar whereas PW-2 Banarsi Dass, Agricultural Sub Inspector, stated that one sealed parcel was handed over to the accused and the remaining two sealed parcels were kept by Baldev Singh. Ex. PA is the affidavit of Veer Singh, ASI (Agriculture), who had deposited sealed parcel with Fertilizer Quality Control Laboratory, Ludhiana, on 1.10.1990 . As per Ex. PA, sample parcel was handed over to ASI Veer Singh by Baldev Singh. When the sample parcels were CRA-S-883-SB of 1999 -6- deposited with the Chief Agricultural Officer, Amritsar, then prosecution story becomes doubtful, as to how sample parcel was handed over to ASI Veer Singh on 1.10.1990, by Baldev Singh-PW 4. No record of the Chief Agricultural Office, Amritsar, is on the file that on 25.9.1990, two sample parcels were handed over to Jawand Singh, Agricultural Officer and after that Jawand Singh had handed over those two sample parcels to Baldev Singh, Fertilizer Inspector. Baldev Singh, did not state a word that he had handed over sealed parcel to Veer Singh, Assistant Sub Inspector, Agriculture Department, for depositing the same in the Fertilizer Quality Control Laboratory, Ludhiana. Link evidence is missing. Possibility of tampering with the case property cannot be ruled out. Secondly, appellant was the proprietor of M/s Kissan Zinc (India) Pvt. Limited, but the company was not impleaded as one of the accused. Without impleading the company as one of the accused appellant cannot be convicted, if we presume that he was the proprietor of the company. Ex. P-1 is the copy of Form-J but Ex. P-1 is silent as to how sample was drawn. Proper procedure to draw the sample was not mentioned in Form-J. Learned State counsel argued that appellant was the proprietor of M/s Kissan Zinc (India) Pvt. Limited, Amritsar, so no prejudice was caused to the appellant if company was not impleaded as one of the accused. Case property remained in the custody of Baldev Singh, Fertilizer Inspector and on 1.10.1990, one sealed parcel was handed over to ASI Veer Singh, for depositing the same in the Fertilizer CRA-S-883-SB of 1999 -7- Quality Control Laboratory, Ludhiana. As per report of the laboratory, seal was found intact. There is no possibility of tampering with the case property. Procedure followed to draw sample was disclosed in the complaint Ex. PB, on the basis of which formal FIR Ex. PB/1 was registered.
First submission of the learned defence counsel for the appellant is that there is a delay in sending the sample parcel to the office of Fertilizer Quality Control Laboratory, Ludhiana and delay is fatal. Story is not clear as to who had handed over sample parcel to ASI Veer Singh. Possibility of tampering with the case property cannot be ruled. After going through the evidence on file, I am of the opinion that submission of the learned defence counsel for the appellant seems to be reasonable one. According to the prosecution story, on 25.9.1990, raiding party headed by Baldev Singh, Fertilizer Inspector, had raided the premises of M/s Kissan Zinc (India) Private Limited, Amritsar. 35 tonnes of fertilizer in gunny bags was found with the appellant. Six bags at random were separated and out of those six bags sample was drawn. One sealed parcel was handed over to the appellant and other two sample parcels were deposited by Baldev Singh, Incharge of the raiding party with Jawand Singh, Agricultural Officer, Amritsar. On 1.10.1990, one sealed parcel was handed over to ASI Veer Singh, for depositing the same in the laboratory by Baldev Singh but no record of Chief Agricultural Office, is on the file to show that after the sample was drawn by the raiding party headed by Baldev Singh then on return to the CRA-S-883-SB of 1999 -8- office of Chief Agricultural Officer, Amritsar, remaining two sealed parcels were kept in custody by Baldev Singh, Fertilizer Inspector, till one sealed parcel was handed over to Veer Singh, ASI, on 1.10.1990, for depositing the same in the laboratory at Ludhiana. PW-2 Banarsi Dass, one of the recovery witness stated that one sealed parcel was handed over to the appellant and the remaining two sealed parcels were kept by Baldev Singh.
Baldev Singh, while appearing as PW-4 stated that one sealed parcel was handed over to the appellant and other two sealed parcels on return to the office were deposited with Jawand Singh, Agricultural Officer, Amristar. No record of the office of Chief Agricultural Office, Amritsar, was produced for the reasons best known to the prosecution to show that sealed parcels remained in the custody of Jawand Singh, Agricultural Officer. Baldev Singh, did not state a word that he had handed over sealed parcel to Veer Singh, ASI, for depositing the same in the Laboratory but according to Baldev Singh, remaining two sealed parcels were deposited with Jawand Singh, Agricultural Officer, Amritsar, but as per Ex. PA affidavit of ASI Veer Singh, sealed parcel was handed over to him by Baldev Singh on 1.10.1990. When the sealed parcels were deposited with Jawand Singh on 25.9.1990, then the question is how Baldev Singh, came in possession of the sealed parcels. No record of the office of Chief Agricultural Office, Amritsar, is on the file that two sealed parcels were handed over by Jawand Singh, Agricultural Officer to Baldev Singh. When two sealed parcels were CRA-S-883-SB of 1999 -9- with Jawand Singh then story becomes doubtful whether one of the sealed parcel was handed over to ASI Veer Singh-PW 1 by Baldev Singh, PW-4 or Jawand Singh, for depositing the same in the laboratory on 1.10.1990.
In 2009 (1) RCR (Criminal), 399 "Shander Dass Vs. State of Punjab", recovery was effected on 21.10.1997. Sample parcel was sent to the office of Chemical Examiner, on 27.10.1997 i.e. after six days. No explanation regarding delay in sending the sample and as such the possibility of tampering with the case property cannot be ruled out.
In 2005 (2) RCR (Criminal) 58; 2005 (1) Apex Criminal 521 (SC)"State of Rajasthan v. Gurmail Singh", contraband remained in the Malkhana for 15 days. The Malkhana register was not produced, to prove that it was so kept in the Malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted.
In the present case also as per PW-4 Baldev Singh, case property was deposited with Jawand Singh, Agricultural Officer. No record of the office of Agricultural Office, Amritsar, is on the file that case property was returned back to Baldev Singh, by Jawand Singh, Agricultural Officer. When the case property was not in the custody of Baldev Singh, then affidavit Ex. PA of ASI Veer Singh, is without any evidentiary value because according to this affidavit sample was handed over to him by Baldev Singh on 1.10.1990, so possibility of tampering with the case property cannot be ruled out and the prosecution story is CRA-S-883-SB of 1999 -10- doubtful as to who was in the possession of the case property and how sample parcel was handed over by Baldev Singh to Veer Singh without obtaining the same from Jawand Singh. Chief Agricultural Officer, who was not examined for the reasons best known to the prosecution.
Second allegation of the prosecution was that appellant was the proprietor of M/s Kissan Zinc (India) Pvt. Limited, Amritsar, but company was not impleaded as one of the accused. In the absence of company appellant cannot be convicted.
In 2003 (3) Criminal Court Cases 343 "Diwan Chand Vs. the State of Punjab" Fertilizer manufactured by a company. Fertilizer was found to be sub-standard and in the complaint allegation was that accused was responsible to the company for quality control. It was not stated that he was incharge and responsible to the company for overall conduct of business. Company was not arrayed as accused. Proceedings quashed.
In 2006 (4) RCR (Criminal) 720 "Diwan Chand Vs. State of Punjab and another" again same point came before the Court for consideration. Sample of fertilizer was found to be substandard. Prosecution of dealer from whom sample was taken and also Production Engineer of Manufacturing Company. Proceedings against Production Engineer of Manufacturing Company quashed because manufacturing company was not arrayed as accused and he was not responsible for conduct of business of company.
In 1994 (1) RCR (Criminal) 347 " G.S. Nagpal Vs. State of CRA-S-883-SB of 1999 -11- Punjab". As per this authority on 13.5.1991, Fertilizer Inspector, had inspected the premises of M/s Tej Trading Company, Ajnala Road, Fatehgarh Churian. Sample of fertilizer was declared as misbranded by the Analyst. As per report complaint was filed against the proprietor of the firm i.e. M/s Tej Trading Company, Ajnala Road, Fatehgarh Churian and the manufacturing company i.e. M/s Kissan Zinc (India) Pvt. Limited. Present appellant was the accused in that case also. Ultimately, Court opined that manufacturing company not arrayed as accused. No averment that Managing Director was incharge and responsible to company for conduct of its business. Proceedings against the present appellant who was the Managing Director, were quashed.
In the present case also in Form-J, there is not a word that the present appellant was in overall control of day to day business of the firm. Complaint Ex. PB dated 27.11.1990, is silent that the present appellant was the overall incharge and responsible to the company for the conduct of its business.
Next submission of the learned defence counsel for the appellant was that sample was drawn on 25.9.1990. Form 'J' was prepared but in Form-J, proper procedure to separate the sample was not mentioned but later on in complaint Ex. PB dated 27.11.1990, procedure followed to separate the sample was disclosed but disclosing the procedure in the complaint Ex. PB, cannot fill up the lacunae. After going through the evidence on file, I am of the opinion that this submission of the learned defence counsel for the appellant seems to be CRA-S-883-SB of 1999 -12- correct one. Ex. P-1 is the photocopy of Form-J dated 25.9.1990 whereas Ex. PB is the copy of complaint dated 27.11.1990, sent to the Senior Superintendent of Police, Amritsar, on the basis of which formal FIR was registered.
In Clause 1 Part A of Schedule II of the Fertilizer (Control) Order, 1985, general requirements of sampling have 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 CRA-S-883-SB of 1999 -13-
polythene bottle of about 400 gm capacity or in a thick gauged polythene bag. This 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.
2. 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 simple 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 bathes of manufacture, all the bags of each batch shall constitute a separate lot.
CRA-S-883-SB of 1999 -14- In the case of 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 fertilizer stored at an Identifiable place subject to a maximum limit of 100 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 quantitates.
(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) No. of bags to be selected for sampling (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 CRA-S-883-SB of 1999 -15-
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 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 fertilizers bags of some grade and type of each manufacturer though received on different dates shall be segregated and property 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 (i) (c) and 4.
(iv) Sampling from damaged stock - (a) In case of torn on lumpy bags, damaged fertilizer bags or sweepings, the stock should be arranged CRA-S-883-SB of 1999 -16- 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 uniformaly by
hammering the big lumps or putting pressure if required, and then samples drawn by using suitable sample devise.
7. In Clause III and IV, further details have been specified for collection of sample. These clauses read as under:-
3. Sampling probe.
(i) An appropriate instrument to be used by the Inspectors for collection of a representative sample is called sampling probe. The probe may compromise of a 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 true may be approximately 1.5 cm and the slot width may be 1.2 to 1.3 cms. The probe may be used CRA-S-883-SB of 1999 -17- if the physical condition of the fertilizers and the packing material permits its use.
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 filed 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 draw a composite sample the process of quartering as described under Para 3 (iii) or 5.
But in the present case procedure followed to separate samples was not mentioned when Form-J was prepared at the spot on 25.9.1990.
In 2007 (3) RCR (Criminal) "Hari Kishan Vs. State of CRA-S-883-SB of 1999 -18- Punjab" sample of fertilizer taken by Fertilizer Inspector but sample not taken as per procedure prescribed in Schedule II of Fertilizer Control Order.
In (1) Criminal Court Cases, 475 "Sham Lal Vs. The State of Haryana" held that sample was found to be of sub-standard. Not mentioned in the complaint at what time and in what manner the sample was taken sealed by Fertilizer Inspector. This was the requirement under Clauses 1 to 4 of Part A Schedule II of Fertilizer Control Order. This lacuna in the prosecution case could not be filled by giving details at a later stage. Inspector did not prepare the detail of sample in Form J as appended to Fertilizer Control Order. Conviction set aside.
In the present case PW-2 Banarsi Dass, Agricultural Sub Inspector, was with the party headed by Baldev Singh, Fertilizer Inspector but he did not state a word as to how samples were drawn. He simply stated that Baldev Singh, had drawn samples from the six bags with the help of a sampler. Zinc was put on a polythene paper and it was mixed up. Zinc was divided into three parts. Those parts of zinc was put into polythene bags and these bags were tied with the thread. Polythene bags were put into the cloth bags. In the cloth bags Form-J were also put in it. Signatures of the appellant were obtained on Form-J. Bags were sealed by Baldev Singh with the seal bearing impression FI.23/ASR.
Baldev Singh, when appeared as PW-4 then stated that on 25.9.1990, he along with Chief Agricultural Officer, had gone to the CRA-S-883-SB of 1999 -19- premises of M/s Kissan Zinc (India) Pvt. Limited, situated at 281-A, East Mohan Nagar, Amritsar. Accused was found present there. He was a licence holder for manufacturing and selling of zinc suphhate. 35 tonnes of zinc sulphate was in his stock. Fertilizer was in the gunny bags for sale. Six bags at random were separated and 1500 grams of fertilizer through probe was separated from each of the six gunny bags by using the probe diagonally from one corner to another and in that way fertilizer taken out from the six bags, was kept on a polythene sheet and was thoroughly mixed and divided into three parts. Ultimately the same was divided into three parts. Each part was put into three separate polythene bags which were neat and clean and dry. Each polythene bag was sealed with the thread. Polythene bags were further transferred into three bags of cloth alongwith form 'J'. Cloth bags were sealed with the seal bearing impression 'FI-23 ASR' One of the sample parcel was handed over to the accused but Ex. P-1 i.e. copy of Form-J is silent about the procedure as to how sample was drawn from the bags but procedure was described subsequently in the complaint Ex. PB, sent to Senior Superintendent of Police, Amritsar, for registration of the case, then prosecution cannot argue that there was no lacuna while preparing Form-J at the spot on 25.9.1990 and subsequently by filling lacuna after describing the procedure in the complaint Ex. PB dated 27.11.1990, prosecution story is to upheld. At the time of drawing sample proper procedure should have been disclosed while preparing Form-J. Without explaining the procedure while preparing Form-J on 25.9.1990, it is very easy for the CRA-S-883-SB of 1999 -20- prosecution to fill up the lacuna by disclosing the procedure as to how sample was drawn.
No other submission was put forward.
In the light of above discussion, I am of the opinion that evidence on file was not rightly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is ordered to be set aside. Appellant is acquitted of the charge levelled against him.
For the reasons recorded above, the instant appeal is allowed.
January 13, 2011 ( JORA SINGH ) rishu JUDGE