Andhra HC (Pre-Telangana)
T. Deveswar Reddy, Area Manager, ... vs Asstt. Director Of Agriculture (R) And ... on 3 January, 2007
Equivalent citations: 2007CRILJ2996
JUDGMENT A. Gopal Reddy, J.
1. These three Criminal Petitions involving common questions of fact and law were heard together and are being disposed of by this Common Order.
2. A learned single Judge of this Court who heard Criminal Petition Nos. 4111 and 414 of 2003 noticing the conflicting views in Thungabhdra Chemicals and Fertilizers Co. Limited v. Assistant Director of Agriculture (Regular) Yerragondpaalem, Judgment in Crl P. No. 5462 of 2001 and batch dated 22-2-2006 reported in 2006 (2) Andh LT (Cri) 103 and in T. Deveswar Reddy, Area Manager, Nagarjuna Fertilizers & Chemicals Limited v. Assistant Director of Agriculture, Hyderabad, Judgment in Crl P. No. 4102 of 2003 dated 5-4-2006 on the question as to whether the law laid down by this Court in District and Sessions Judge, Cuntur v. State of A.P., Hyderabad 2000 (1) ALT (Cri) 103 (DB) (AP). would also apply to offences committed prior to 30-6-1999 the date of order of the Division Bench, by order dated 7-6-2006 referred the matter for an authoritative pronouncement by a Division Bench.
3. Subsequently, when Criminal Petition No. 5801 of 2003 involving consideration of similar question of law was taken up for hearing by one of us (AGRJ), it was represented that Crl. Petition Nos. 4111 and 4114 of 2003 involving identical question of law were referred to a Division Bench and, therefore, the said petition may also be directed to be posted along with them. Accordingly, Crl. Petition No. 5801 of 2003 was directed to be listed along with the said petitions. That is how the present petitions are listed before this Bench.
4. A Division Bench of this Court in District and Sessions Judge, Guntur v. State of A.P. (supra) by judgment dated 30-6-1999, while upholding the constitutional validity of Clause 19(1) of the Control Order held that though Clause 28 of Schedule II of the Control Order does not contain a provision enabling the person accused of violation to get the third sample tested from an independent analyst, the same can be supplemented by a direction of this Court so as to read the said provision conforming to the fundamental rights and particularly, Articles 14 and 21 of the Constitution of India and such a right should be read into the Control Order and Schedule II appended to it and accordingly certain procedural safeguards were read into the provisions of the Control Order regarding requirement of furnishing one of the samples drawn during inspection of the dealers' premises and supply a copy of analyst's report to the distributor also.
5. In Thungabhadra Chemicals and Fertilizer's (supra), one of us (Gopal Reddy, J.) noticing the judgment of the Constitution Bench of the Supreme Court in P. Ramachandra Rao v. State of Karnataka , held that once the Court made it mandatory for drawing three samples and giving one sample to the accused, so that he can have tested the same by an independent agency, if disputes the correctness of analysis report furnished, such procedure to be followed will amount to legislation by reading it into rule will only have prospective in operation and will not defeat the prosecution already launched. Unless it is expressly or impliedly declared so, it will not have retrospective effect in operation. In the absence of such declaration by giving retrospectively by a Division Bench of this Court in District & Sessions Judge, Guntur (supra), the proceedings initiated against the petitioners cannot be quashed since in all the cases, prosecution was launched much prior to the judgment in the above case.
5(i). The said judgment must be read in consonance with Clause 30 of the Control Order, which reads as under:
30. The limit for analysis and communication of results: (1) Where sample of a fertilizer has been drawn, the same shall be dispatched, along with a memorandum in Form-K to the laboratory for analysis within a period of seven days from the date of its drawal.
(2) The laboratory shall analyze the sample and forward the analysis report in Form-L within 60 days from the date of receipt of the sample in the laboratory to the authority specified in the said memorandum.
(3) The authority to whom the analysis report is sent under Sub-clause (2) shall communicate the result of the analysis to the dealer/manufacturer/importer/pool handling agency from whom the sample was drawn within 30 days from the date of receipt of analysis report of the laboratory.
5(ii). A reading of the above clause clearly discloses that the authority to whom the analysis report is sent from the laboratory has to communicate the result to the dealer/manufacturer/importer/pool handling agency from whom the sample was drawn within 30 days from the date of receipt of analysis report of the laboratory. Analysis report submitted to the accused from whom the sample was drawn have not complained any violation except petitioners until this Court declared as referred to above.
5(iii). Further the judgment of the Supreme Court in T.V. Usman v. Food Inspector, Tellicherry Municipality , has not brought to the notice of the Division Bench of this Court in District & Sessions Judge, Guntur (supra), wherein their Lordships while considering the Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 requiring a copy of analyst report to be provided to the local health authority within a period of 45 days held that rule requiring a copy of the report of result of analyst to be provided to the local health authority is only directory but not mandatory. It further held as under:
11. In Rule 7(3) no doubt the expression "shall" is used but it must be borne in mind that the rule deals with stages prior to launching the prosecution and it is also clear that by the dale of receipt of the report of the Public Analyst the case is not yet instituted in the Court and it is only on the basis of this report of the Public Analyst that the authority concerned has to take a decision whether to institute a prosecution or not. There is no time-limit prescribed within which the prosecution has to be instituted and when there is no such limit prescribed then there is no valid reason for holding the period of 45 days as mandatory. Of course that does not mean that the Public Analyst can ignore the time-limit prescribed under the rules. He must in all cases try to comply with the time-limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and on that basis to hold that even prosecution cannot be launched. May be, in a given case, if there is inordinate delay, the Court may not attach any value to the report but merely because the time- limit is prescribed, it cannot be said that even a slight delay would render the report void or inadmissible in law. In the context it must be noted that Rule 7(3) is only a procedural provision meant to speed up the process of investigation on the basis of which the prosecution has to be launched. No doubt, Sub-section (2) of Section 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the Court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analyzed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable lo the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it must be shown that the delay has led to the denial of right conferred under Section 13(2) and that depends on the facts of each case and violation of the time-limit given in Sub-rule (3) of Rule 7 by itself cannot be a ground for the prosecution case being thrown out.
5(iv). It was further held that unless it is established that prejudice has been caused to the petitioners therein due to delay in sending the sample lo the laboratory and furnishing report belatedly, proceedings cannot be quashed.
6. In T. Deveswar Reddy, Area Manager, Nagarjuna Fertilisers & Chemicals Ltd. (supra) a learned single Judge of this Court following the judgment in District & Sessions Judge, Guntur's case (supra), by order dated 5-4-2006 quashed the complaint against the petitioner therein (Petitioner in the present Criminal Petitions-Crl. Petition Nos. 4111 and 4114 of 2003) for a similar offence punishable under Section 7(1)(a)(ii) of the Act.
7. In these petitions, filed under Section 482 of the Code of Criminal Procedure, the petitioners against whom criminal proceedings were initiated for alleged contravention of Clause 19 of Fertilizer (Control) Order, 1985 (for short 'the Control Order') punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (for short 'the Act'), have prayed for quashing of the proceedings on the ground that non-supply of the samples of fertilizer drawn by the complainant from the premises of the dealers, denying them an opportunity to send the same for test by an independent analyst, and non-supply of analytical reports of Fertilizer Corporation Laboratories, vitiated the entire proceedings.
8. Before we deal with the matter, the facts in brief in the respective petitions may be noted.
9. Crl. Petition Nos. 4111 and 4114 of 2003 are filed by Nagarjuna Fertilizers & Chemicals Limited, represented by Sri T. Deveswar Reddy, Area Manager, Hyderabad to quash the proceedings in S.T.C. No. 7 of 1998 and the proceedings in S.T.C. No. 6 of 1998 pending on the file of the Special Court i.e. District Judge. Karimnagar, constituted under the Essential Commodities Act, whereas Crl. Petition No. 5801 is filed by M/s. Prathuyusa Chemicals and Fertilizers Limited, represented by its Company Secretary, to quash the proceedings in C.C. No. 165 of 2003 on the file of Judicial First Class Magistrate. Gajwel.
10. The facts in Crl. Petition Nos. 4111 and 4114 of 2003 being similar, it is suffice if we refer to the facts relating to Crl. P. No. 4111 of 2003. The Assistant Director of Agriculture had drawn sample of single Super Phosphate (SSP) 16% fertilizer from out of the stock of 100 bags manufactured by M/s. Tungabhadra Fertilizers & Chemicals Ltd. and marketed by M/s. Nagarjuna Fertilizers & Chemicals Ltd. One such sample was sent to the Fertilizers Control Laboratory (FAL), Tadepalligudem for analysis and third fertilizer sample was retained as referee sample. The FCL, Tadepalligudem in its report opined that the fertilizer was not of standard quality. Pursuant thereto, complaints were lodged in S.T.C. No. 7 of 98 and S.T.C. No. 6 of 1998 against the dealers, distributors and the manufacturer for having contravened, among others, Clause 19 of the Control Order punishable under Section 7(1)(a)(ii)of the Act.
11. We may now notice the facts in Crl. P. No. 5801 of 2003. The Agricultural Officer (Fertilizer Inspector), Jagdevpur Mandal, Medak District visited the premises of M/s. Hanuman Fertilizers & Pesticides (A1), a retail dealer of fertilizer, and collected three samples of Single Super Phosphate of 16% in accordance with the procedure laid down in the Control Order and handed over one sample to the dealer (A1) and second sample was kept in the office of the Assistant Director of Agriculture as referee sample and the third sample was sent to the FCL, Bapatla for analysis. The FCL, Bapatla in its report opined that the fertilizer is not in accordance with the standard specifications. The fertilizer was supplied to A1 by M/s. Prathyusa Chemicals and Fertilisers Limited, Visakhapantam (A2) through M/s. Coromandal Fertilizers Limited (A3). Pursuant to the complaint, proceedings were initiated against the dealer, manufacturer and the distributor for having contravened, among others. Clause 19 of the Control Order punishable under Section 7(1)(a)(ii) of the Act.
12. Sri S. Ravi, learned Counsel appearing for the Distributor reiterated the very same submissions, which were raised before the learned single Judge who referred the matters for an authoritative decision by a Division Bench. Learned Counsel would submit that in District and Sessions Judge, Guntur's case (supra), certain procedural safeguards were read into the provisions of the Control Order including the requirement of furnishing one of the samples drawn during Inspection of the dealer's premises to get the sample tested by an independent analyst and a copy of the analyst's report to the Distributor also, as, Clause 28 of Schedule 11 of the Control Order does not contain a provision for the same. The Division Bench while upholding Clause 19(1) of the Control Order held that such reading of the safeguards into the provisions of the Control Order would conform to the fundamental rights enshrined in the Constitution. Learned Counsel would submit that in the present cases as the samples were not made available to the Distributors to gel the same tested by an independent analyst nor copies of analyst reports were furnished to the distributors, the proceedings instituted against the distributors for alleged violation of Clause 19(1) of the Control Order cannot be sustained as per the law laid down by this Court in the said decision and as such the complaint and the consequential proceedings are liable to be quashed. Mr. Ravi further submitted that in M/s. Thungabhadra Chemicals and Fertilizer's case (supra) the question that, arose for consideration was with regard to delay in sending the sample to the analyst and furnishing a copy of analyst's report to the accused, whereas in the present cases, the samples drawn have not been furnished to petitioners even till date to send it to an independent agency for analysis, and this vitiated the proceedings. He further submitted that since Clause 19 of the Control Order did not provide for minimum procedural safeguards as stated above and since such safeguards were read into the provisions of Clause 19, Clause 19 as it stood prior to the date of Judgment of the Division Bench has not been struck down as unconstitutional and this aspect of the matter did not fall for consideration in M/s. Thungabhadra Chemicals and Fertilizer's case (supra).
13. In the wake of the rival submissions, the point that arises for consideration in these criminal petitions is : Whether the judgment rendered by the Division Bench of this Court in District & Sessions Judge, Guntur (supra) will have retrospective (effect) in operation and whether the proceedings initiated much prior to the said judgment are ipso facto liable to be quashed for violation of the procedural safeguards guaranteed under the said judgment?
14. A Constitution Bench of the Supreme Court in P. Ramachandra Rao (supra), held as under:
The primary function of the Judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation, (para 25) Legislation is that source of law which consists in the declaration of legal rules by a competent authority. When Judges by Judicial decisions lay down a new principle of general application of the nature specifically reserved for the legislature they may be said to have legislated and not merely declared the law. (para 22) In the said case, the Supreme Court quoting the principles of Salmond Jurisprudence, "we must distinguish lawmaking by legislators from law-making by the Courts. Legislators can lay down rules purely for the future and without reference to any actual dispute; the Courts, insofar as they create law, can do so only in application to the cases before them and only insofar as is necessary for their solution. Judicial law-making is incidental to the solving of legal disputes; legislative law-making Is the central function of the legislator, (page 115).
Further held as under:
it is not difficult to perceive the dividing line between permissible legislation by Judicial directives and enacting law the field exclusively reserved for the legislature....
...Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time-limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated. In a given case or set of cases, depending on facts brought to the notice of the Court. This is permissible for the judiciary to do.
15. In Handi Instant Foods, Chennai v. State of Andhra Pradesh 2006 (3) LS 413 (DB) : 2007 Cri LJ 1112 (AP), we have held as under:
For the foregoing reasons, we hold that when a complaint is filed under the Prevention of Food Adulteration Act against the accused for adulteration of food article, the prosecution is not liable to be quashed against him on the ground that he was denied a right under Section 13(2) of the Act for sending the second sample to the Central Food Laboratory for analysis on account of delay caused in filing the complaint and furnishing the Analyst Report to the accused without there being any prejudice caused to him is shown, (para 15).
16. The Division Bench of this Court in District & Sessions Judge, Guntur (supra) supplemented certain procedural safeguard directing three samples have to be drawn and one sample has to be given to the accused and the same cannot be dispensed with and the purpose of giving the sample to the accused becomes nugatory if he is not given a right to get it tested by an independent agency. That apart, the fair procedure is violated by not providing such a right and such a right should be read into Clause 19 of the Fertilizer (Control) Order and Schedule-11 appended to it. In view of supplementing certain procedural safeguards to be read into Clause 19 of the Fertilizer Control Order, the right so created is substantive in nature but not procedural.
17. A statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is declaratory in nature inasmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxations of the law, whether relating to firm or to form or to substance, Similarly, provisions in which a contrary intention does not appear neither impose new liabilities In respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. (See Halsburys Laws of England. 4th Kdn., Vol. 44, paras 921. 922, 925 and 926). These principles are equally applicable to amendatory statutes. According to Crawford:
Amendatory statutes are subject to the general principles...relative to retroactive operation. Like original statutes, they will not be given retroactive construction, unless the language clearly makes such construction necessary. In other words, the amendment will usually take effect only from the date of its enactment and will have no application to prior transactions, in the absence of an expressed intent or an intent clearly implied to the contrary. Indeed there is a presumption that an amendment shall operate prospectively. (See Crawfords Statutory Construction, pp. 622-23).
18. In United Provinces v. Atiqa Begum 1940 PCR 110 : AIR 1941 PC 16, Sulaiman, J. has observed : (FCR p. 163).
Undoubtedly, an Act may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does not compel them to do so.
To the same effect are the observations of Varadaehariar, J., who has stated (FCR pp. 185-186):
There can be little doubt that there is a well recognised presumption against construing an enactment as governing the rights of the parties to a pending action.... There are two recognised principles, (1) that vested rights should not be presumed to be affected and (2) that the rights of the parties to an action should ordinarily be determined in accordance with the law as it stood at the date of the commencement of the action. The language used in an enactment may be sufficient to rebut the first presumption, but not the second. Where it is intended to make a new law applicable even to pending actions, it is common to find the legislature using language expressly referring to pending action.
19. In the words of S.R. Das, C.J. in Garikapatti Veeraya v. N. Subbiah Choudhury :
The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.
20. In order that the provisions of a statute dealing with substantive right may apply to pending proceedings the Court has insisted that the law must speak in language which expressly or by clear intendment, takes in even pending matters. See Dayawati v. Inderjit AIR 1965 SC 1423 and Lakshmi Narayan Guin v. Niranjan Modak .
21. The Supreme Court in Land Acquisition Officer-cum-Dswo v. B.V. Reddy & Sons , while dealing with the question whether Section 25 of the Land Acquisition Act be construed to be procedural in nature or substantive? held that on a plain reading of the same, it is difficult to hold that it is procedural in nature, but it unequivocally limits the power of the Court on a reference being made to award compensation, more than the amount claimed by the claimants and less than the amount awarded by the Collector. In other words, the substantive right of a claimant who has made a claim to the compensation pursuant to a notice under Section 9 cannot be more than the amount claimed and under any circumstances, would not. be less than the amount which the Land Acquisition Collector has awarded under Section 11, since that award of the Collector is the offer that is made to the claimant, and approved the ratio laid down by it in Krishi Utpadan Mandi Samiti v. Kanhaiya Lal , wherein it was held that the provision of Section 25 of the Land Acquisition Act is substantive in nature. While holding so, it was further held that a substantive provision cannot be retrospective in nature unless the provision itself indicates the same.
22. In the light of the law as aforementioned and the conspicuous discussion made as above, we are of the view that the law declared by this Court in District & Sessions Judge, Gunlur (supra) will have prospective in operation and will not affect the proceedings initiated prior to the said judgment unless it is specifically declared so. In that view of the matter, the proceedings initiated against the petitioners in Crl. P. Nos. 4111 and 4114 of 2003 which were initiated much prior to the judgment of the Division Bench of this Court in District & Sessions Judge, Guntur (supra) cannot be set at naught, for not following the procedural safeguards, directed to be followed in the said judgment. Therefore, the above two criminal petitions are liable to be dismissed.
23. In Crl. P. No. 5801/2003, Fertilizer Inspector collected three samples and handed over one sample to the dealer (A-1) and second sample was kept in the office of the Assistant Director of Agriculture as referee sample and the third sample was sent to the FCL, Bapatla for analysis, which complies with the directions issued by the Division Bench of this Court. In view of the same, the submission made by the learned Counsel for the petitioner that request made by A-1 to send the sample deposited with him for testing of an independent agency has not been complied with and he was denied of a reasonable opportunity, the proceedings have to be quashed, is a matter of evidence which can be considered by the Magistrate during the course of trial and the proceedings on the said ground cannot be quashed. It is fallacy to contend that the samples were not made available to the distributor to get the same tested by an independent agency nor a copy of the analyst report was furnished to the distributor, the proceedings initiated against the distributor for alleged violation of Clause 19 of the Control Order is liable to be quashed. This Court in District & Sessions Judge, Guntur (supra) held that three samples have to be drawn and one sample has to be given to the accused and the same cannot be dispensed with. Once the inspecting authority had drawn three samples, it complied the mandate given by this Court. In view of the same, we do not see any merit in any of the submissions of the learned Counsel.
24. In the result, all the criminal petitions are dismissed.