Punjab-Haryana High Court
M/S Tata Chemicals Ltd. And Anr vs State Of Punjab on 17 December, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
CRM-M-40374-2013 1
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
Date of decision : 17.12.2014
1. CRM-M-40374-2013
M/s. Tata Chemicals Ltd. and another
... Petitioners
Versus
State of Punjab
... Respondent
2. CRM-M-40631-2013
M/s. Tata Chemicals Ltd. and another
... Petitioners
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Raman Sharma, Advocate
for the petitioners.
Mr.Ankur Jain, AAG, Punjab.
REKHA MITTAL, J.
This order will dispose of aforesaid petitions as identical questions of law and facts are involved for adjudication. However, for the sake of convenience, facts are taken from CRM-M-40374-2013.
The State through Chief Agricultural Officer, Ferozepur filed the complaint under Section 19(a)(c) of the Fertilizers (control) Order 1985 (in short 'Control Order') read with Section 3 of the Essential Commodities Act 1955 (in short 'the Act') punishable under Section 7 of the Act against the DAVINDER KUMAR 2015.01.08 14:15 I attest to the accuracy and integrity of this document CRM-M-40374-2013 2 dealer, Marketing Company and Manufacturer of Fertilizer which was found to be sub standard on the basis of analysis of the sample drawn from M/s Shri Ram Fertilizers and Pesticides, Rishi Chowk, Guru Har Sarai, Ferzeopur. Sh.Jaswinder Singh, notified Fertilizers Inspector selected four packets by random out of 249 packets of "Paras" Zinc Sulphate 33% Monohydrate (Paras Zinc) weighing 5 kgs. each manufactured by Chakardhar Chemicals Private Limited, E-3 UPSIDC Industrial Area, Begraipur, Muzzafar Nagar (U.P.). The contends of 4 packets were mixed well, made homogenous and thereafter sample was drawn with neat, clean and dry sampling probe made of brass in presence of Sh. Amit Kumar salesman of the firm of M/s Shri Ram Fertilizers and Pesticides as well as in the presence of Sh. Teja Singh, Agricultural Officer, Guru Har Sarai. The sample test result showed Zinc contents 30.92% against 33% and Sulphur 14.69% against 15% proving that the sample is not according to specifications and fails in Zinc (Zn) and Sulphur (S) contents.
The learned Judicial magistrate passed the summoning order dated 06.10.2010 (Annexure P3) issuing process against the accused including the petitioners to face proceedings for commission of offence punishable under Section 7 of the Act.
Counsel for the petitioners contends that M/s Tata Chemicals Limited is a Marketing Company of the fertilizer manufactured by M/s Chakardhar Private Limited, Muzzafar Nagar (U.P.). The sample was admittedly drawn from the stitched packets, therefore, neither the Marketing Company nor Sh.Dalip Kumar Singh, its responsible person for marketing can be prosecuted even if contents of the sample were found deficit or not matching the specifications laid down by law. In support of his contention, he DAVINDER KUMAR 2015.01.08 14:15 I attest to the accuracy and integrity of this document CRM-M-40374-2013 3 has placed heavy reliance upon the judgments of this Court Manoj Grover Vs. State of Punjab, CRM-M-4582-2008 decided on 15.12.2009; Kehar Singh Vs. State of Punjab and another, CRM-M-8021-2010 along with other petitions decided on 15.09.2011, CRM-M-42904-2013 M/s Tata Chemicals Ltd. and another Vs. State of Haryana decided on February 24, 2014.
Counsel has made a half hearted attempt to contend that the trial Court in a mechanical manner and in utter disregard of the instructions issued by the Ministry of Chemical and Fertilizers (Government of India), Department of Fertilizers MPR Section, New Delhi dated 14.05.2004 particularly Clause L of the said instructions has passed the summoning order against the petitioners despite the fact that as per the aforesaid instructions, the manufacturer alone is to be held liable in case any product is found to be sub-standard or contravenes any of the conditions laid down in guidelines (Annexure P4).
Counsel for the State of Punjab, on the contrary, would submit that disputed questions of fact are not amenable to adjudication in proceedings under Section 482 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is vehemently argued that in view of the provisions of Clause 19 of the Control Order, contention of the petitioners that only manufacturer can be held liable cannot be accepted. For this purpose, he has relied upon the judgment of this Court Tarsem Chand Vs. State of Punjab, 2003(1) RCR (Criminal) 196. He has further relied upon the Division Bench judgment of this Court State of Punjab Vs. M/s. Ravinder Kumar and Bros. and others 2007(2) RCR (Criminal) 307.
I have heard counsel for the parties and perused the records. DAVINDER KUMAR Before dealing with the rival submissions made by counsel for 2015.01.08 14:15 I attest to the accuracy and integrity of this document CRM-M-40374-2013 4 the parties, it is relevant to extract Clause 19 of the Control Order, germane to the matter in controversy. Clause 19 of the Control Order reads thus:-
"19. Restriction on manufacture, sale and distribution of fertilizers- No person shall himself or by any other person on his behalf-
(a) manufacture for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertilizer which is not of prescribed standard;
(b) manufacture for sale, sell, offer for sale, stock or exhibit for sale or distribute any mixture of fertilizers which is not of prescribed standard subject to such limits of permissible variation as may be specified from time to time by the Central Government or special mixture of fertilizers which does not conform to the particulars specified in the certificate of manufacture granted to him under this Order in respect of such special mixture;
(c) sell, offer for sale, stock or exhibit for sale or distribute-
(i) any fertilizer the container whereof is not packed and marked in the manner laid down in this Order;
(ii) any fertilizer which is an imitation or a substitute for another fertilizer under the name of which it is sold;
(iii) any fertilizer which is adulterated:
Explanation:- A fertilizer shall be deemed to be adulterated, if It contains any substance the addition of which is likely to eliminate or decrease Its nutrient contents or make the fertilizer not conforming to the prescribed standard.
(iv) any fertilizer the label or container whereof bears the name of any individual firm or company purporting to be manufacturer of the fertilizer, which individual, firm or company is fictitious or does not exist;
(v) any fertilizer, the label or container whereof or DAVINDER KUMAR 2015.01.08 14:15 I attest to the accuracy and integrity of this document CRM-M-40374-2013 5 anything accompanying therewith bears any statement which makes a false claim for the fertilizer or which is false or misleading in any material particular;
(vi) any substance as a fertilizer which substance is not, in fact, a fertilizer; or
(vii) any fertilizer without exhibiting the minimum guaranteed percentage by weight of plant nutrient."
A plain reading of Clause 19 extracted hereinabove would make it manifest that it contains restrictions not only on manufacture but also on sale or distribution of sub-standard fertilizers. In view of the clear statutory provisions aforesaid, contention of the petitioners that only manufacturer can be held liable cannot be accepted.
Much stress has been laid down by counsel for the petitioners that as the sample was drawn from stitched bags, the Marketing Company cannot be held liable for prosecution even if the sample was found to be sub- standard. However, counsel for the petitioners failed to point out any such provision in the Control Order which creates an exception in favour of the Marketing company or the dealer in cases where sample is drawn from the stitched bag or sealed bag unlike Section 30 of the Insecticides Act 1968.
Section 30(3) of the Insecticides Act 1968 reads to the following effect:-
"30. Defences which may or may not be allowed in prosecutions under this Act:-
(3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves--
(a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof;DAVINDER KUMAR 2015.01.08 14:15 I attest to the accuracy and integrity of this document