Delhi District Court
3.Title : State vs . Mohan Etc. on 21 July, 2011
IN THE COURT OF SHRI RAJESH MALIK : MM (WEST) -05
TIS HAZARI COURTS : DELHI
1.FIR No. :602/94
2.Unique Case ID No. :R0033861995
3.Title : State Vs. Mohan etc.
3(A).Name of complainant :Ramesh Tyagi S/o Braham Dutt Tyagi R/o Village
Shikar Pur, Delhi.
3(B).Name of accused :1.Krishan Kumar S/o Hawa Singh R/o Village
Thani Surja, PS Loharu, Distirct Bhiwani, Haryana.
2.Virender Kumar S/o Jagdish Chand Arya R/o
Village Gopi, Bhiwani, Haryana
3.Babu Lal S/o Puran Mal R/o Village Kharkhari,
PS Loharu, Distirct Bhiwani, Haryana
4.Date of institution of challan :04.11.1995
5.Date of Reserving judgment :21.07.11
6.Date of pronouncement :21.07.11
7.Date of commission of offence :15.11.1994
8.Offence complained of :Under Section 420 IPC and Section 7 sub-clause
(i) (A), Sub Clause (ii) of Essential Commodities
Act 1955.
9.Offence charged with :Under Section 420 IPC and Section 7 sub-clause
(i) (A), Sub Clause (ii) of Essential Commodities
Act 1955.
10.Plea of the accused :Pleaded not guilty
11.Final order :Acquitted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The case of the prosecution is that on 16.11.1994, one Ramesh Tyagi lodged the written complaint before SHO PS Tilak Nagar wherein he stated that on 15.11.1994, he purchased one gunny bag of fertilizer with DAP imported ammonium phosphate PPL Company by paying Rs.400/-. On reaching home, he found the FIR No. 602/94 1/12 fertilizer to be of sub-standard quality.
2. On the written complaint of the complainant Ramesh Tyagi, the SHO concerned endorsed for registration of FIR under Section 420 IPC and the investigation was handed over to SI Baljeet Singh. The FIR was registered on 16.11.1994. The site plan was prepared. As per the prosecution story, the complainant Sh. Ramesh Tyagi along with IO went to the shop from where he had purchased the sub-standard fertilizer and on his pointing out, one fertilizer bag from which the fertilizer had been sold to him was seized. Sample was drawn and the remaining fertilizer was sealed with the seal of BS.
3. On 19.11.1994, the accused Kishan Kumar was arrested. His disclosure was recorded. At his instance, two more plastic bags of fertilizers were recovered from Subzi Mandi Ganda Nala. The sample was drawn from both the bags and remaining substance was sealed with the seal of BS. On 20.11.1994, some empty bags of fertilizers were recovered at the instance of the accused Krishan. On the same day, the IO took the accused Kishan Kumar to his village in Bhiwani, Haryana and recovered 30 more fertilizers bags and also recovered a machine used for stitching the bags. The sample was drawn from all the bags and remaining filling was sealed with the seal of IO.
4. On 20.11.1994, on the basis of the disclosure statement of the accused Krishan, the other accused Virender Kumar was arrested from his village in Haryana and 30 more fertilizer bags containing fertilizer and 190 empty plastic fertilizer bags were recovered from his shop. The sample was drawn from the fertilizer bags and remaining filling was sealed with the seal of BS. The disclosure statement of the accused Virender was also recorded.
5. The samples were initially sent for chemical analysis to CFSL; they refused to entertain the sample as the same could be examined only by Fertilizers Quality Central Laboratory, Faridabad. Accordingly, it was sent to Fertilizers Quality Central Laboratory, Faridabad.
6. After examination, the Fertilizers Quality Central Laboratory, Faridabad FIR No. 602/94 2/12 opined that sample did not seem to be DAP, SSP misbranded as DAP. They also opined that the accused had contravened the provisions of Fertilizer (Control) Order 1985 clause 7 and clause 19 (C) (ii) (v) and E.C.A.1955 Clause-3(2) (d) which is punishable under E.C.A 1955 Section 7 (i) (a) (ii).
7. After conclusion of the investigation, the investigating agency filed the final charge sheet against the accused persons under Section 420/34 IPC and under Section 7 Essential Commodities Act, 1955.
After hearing the parties from both the sides, the accused Kishan Kumar was charged under Section 420 IPC and Section 7 sub-clause (i) (A), Sub Clause (ii) of Essential Commodities Act 1955 and the accused Virender Kumar was charged under Section 7 sub-clause (i) (A), Sub Clause (ii) of Essential Commodities Act 1955. All other remaining accused persons were discharged vide order dated 21.07.2004.
8. During trial, the prosecution has examined nine witnesses to prove its case against the accused Kishan Kumar and Virender.
PW1 namely Satnam Singh resiled from his earlier statement and did not support the case of the prosecution. He was cross-examined by Ld. APP for the State. Nothing incriminating could be elicited from his mouth. Likewise, the PW2 at whose instance FIR was lodged, completely turned hostile. He deposed that he had purchased one gunni bag DAP fertilizers from a shop of Tilak Nagar Mandi. On reaching home, he checked the fertilizer and found the same to be duplicate. He made the complaint to the PS Tilak Nagar. He stated that the person who sold him the duplicate fertilizer is not the person present in the court. He was cross-examined by Ld. APP for the State. He totally resiled from his earlier statement. He stated that the accused Kishan Kumar who had sold him the fertilizer is not present in the court. He refuted the suggestion that duplicate bags were seized in his presence.
9. The other public witness i.e PW4 also did not support the prosecution case.
10. Thus, so far as the offence of cheating is concerned, the prosecution has failed to bring any evidence on record to prove that the accused Kishan Kumar cheated FIR No. 602/94 3/12 the complainant by inducing him to pay Rs.400/- and supplied him the duplicate fertilizer.
11. Now, the stage has been set to discuss the offence under Section 7 of Essential Commodities Act, 1955.
The investigation officer i.e. Inspector Baljeet Singh has seized the sub standard fertilizer from different places and therefore, his testimony is relevant here to see whether the offence under section 7 of ECA, 1955 is made out or not against the accused persons. He has been examined as PW9. He deposed that on 16.11.1994, he was posted at PS Tilak Nagar as SI. On that day, after registration of the FIR, the investigation of the present case was marked to him and during investigation, he examined the complainant Ramesh Chand Tyagi and he went to the place of the occurrence and prepared site plan Ex.PW9/A. The complainant Ramesh Chand Tyagi also produced to him one sack containing sub standard fertilizer which as per the complainant had been sold to him by accused Kishan Kumar. He further deposed that he took one kg of fertilizer as sample and filled form CFSL and thereafter, the sack and sample pullanda were sealed and he seized the same vide seizure memo Ex.PW1/B. He recorded statement of witnesses and deposited the case property in the maalkhana.
On 19.11.1994, he arrested the accused Kishan Kumar. He conducted his personal search vide memo Ex.PW9/B. The accused Kishan Kumar made a disclosure statement Ex.PW9/C. Pursuant to the disclosure, he went to Ganda Nala Subzi Mandi Near Pullia and got recovered two plastic katta which upon checking found contained fertilizer like material. He got weighted both the bags and found contained 50 kg of material in each bag. From both the bags, one kg of material was taken as sample which were given serial no.S1 and S2 and both the bags and sample were sealed and were seized vide seizure memo Ex.PW2/D. He recorded the statements of the witnesses and deposited the case property in the maalkhana. He also obtained three days PC of accused Kishan Kumar and during PC, accused made another disclosure vide Ex.PW9/D to him and during PC, the accused led them to his house at village Dhani, Surja, District Bhiwani Haryana and from inside his house i.e from room, accused FIR No. 602/94 4/12 pointed out towards plastic bags containing fertilizers like material which upon counting it came to 30 and one sealing machine, the bags were given serial no.3 to 32 and upon weighing all the bags found containing 50 kg of material in each bag and from each bag, one kg of material was taken as sample. All the bags and samples pullandas were sealed with the seal of BS and along with machine, were seized vide seizure memo Ex.PW9/E. He further deposed that he also prepared site plan of the place of the recovery Ex.PW9/F. During investigation, upon the pointing out of accused Kishan Kumar, the other accused Virender present in the court was apprehended from his shop i.e. Arya Khad Bhandar, Badla, District Bhiwani Haryana and was arrested and his personal search was conducted vide memo Ex.PW9/H. The accused Virender also made the disclosure statement to me Ex.Pw9/I and pursuant to disclosure led him to inside his shop and pointed out towards 13 bags containing fertilizer like material and upon weighing, each bag found contained 50 kg material in them and apart from the 13 bags, 190 empty plastic bags were also recovered. The bags were given serial no.33 to 45 and from all the bags, one kg of material was taken out as sample. The 13 recovered bag and sample were sealed with the seal of BS and sealed along with 190 empty bags vide seizure memo Ex.PW9/J. He also prepared site plan of the place of the recovery Ex.PW9/K. He recorded the statement of the witnesses and deposited the case property in the maalkahan.
During investigation, he initially tried to deposit the sample to CFSL but they refused. During investigation, he moved an application and the sample were again drawn with the permission of court by Inspector Om Vir from food and Adulteration Department and accordingly, the samples were drawn and the material was examined by food and Adulteration Department. He collected the report made by food and Adulteration Department which is already Ex.PW3/B,C and D and recorded the statements of the witnesses. He concluded investigation and filed the charge sheet.
During his testimony, the case property was produced by MHCM. Two unsealed gunni bags were produced having FIR particulars of the present case, he after FIR No. 602/94 5/12 seeing the material in both the kattas submits that the same contained the samples of recovered material and both the plastic bags including the the material in them was identified by him as Ex.P1 and P2.
12. The accused Virender and Kishan have been charged under Section 7 sub- clause (i) (A), Sub Clause (ii) of Essential Commodities Act 1955 read with Clause 19 (C) (ii) (V) of Fertilizer Control Order 1985. For the proper appreciation of the facts of the present case, the Clause said 19 (C) (ii) and (v) is reproduced here. It says ''No person shall himself or by any other person on his behalf:-
(C) sell, offer for sale, stock or exhibit for sale or distribute
(ii) any fertilizer which is an [imitation of or] a substitute for another fertilizer under the name of which It Is sold;
(v) any fertilizer, the label or container whereof or anything accompanying there with bears any statement which makes a false claim for the fertilizer of which is false or misleading in any material particular.
Further, the Fertilizer Control Order 1985 provides for mechanism to seize the sub standard fertilizers. The Section 28 the Fertilizer Control Order 1985 is reproduced here for proper appreciation of prosecution's case.
"28. Powers of Inspectors (1.) An inspector may, with a view to securing compliance with this Order:-
(a.) require any manufacturer, importer, pool handling agency, wholesale dealer or retail dealer to give any information in his possession with respect to the manufacture, storage and disposal of any fertilizer manufactured or, in any manner handled by him.
(b) draw samples of any fertiliser in accordance with the procedure of drawal of samples laid down in Schedule II. Provided that the inspector shall prepare the sampling details in duplicate In Form J, and hand over one copy of the same to the dealer or his representative from whom the sample has been drawn.
(b.a) draw samples of any biofertilisers in accordance with the procedure of FIR No. 602/94 6/12 drawl of samples laid down in schedule III.
(b.b) draw samples of any organic fertilizers in accordance with the procedure of drawl of samples laid down in schedule IV.
(c) enter upon and search any premises where any fertilizer is manufactured/Imported or stored or exhibited for sale, if he has reason to believe that any fertilizer has been or is being manufactured/imported, sold, offered for sale, stored, exhibited for sale or distributed contrary to the provisions of this Order.
(d) seize or detain any fertilizer in respect of which he has reason to believe that a contravention of this Order has been or is being or is [attempted] to be committed;
(e) seize any books of accounts or documents relating to manufacture, storage or sale of fertilizers, etc. in respect of which he has reason to believe that any contravention of this Order has been or is being or is about to be committed;
Provided that the Inspector shall give a receipt for such fertilisers or books of accounts or documents so seized to the person from whom the same have been seized;
Provided further that the books of accounts or documents so seized shall be returned to the person from whom they were seized after copies thereof orextracts thereform as certified by such person, have been taken.
(2) Subject to the proviso to paragraphs (d) and (e) of sub-clause (1), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this clause.
Provided also that the inspector shall give the stop sale notice in writing to the person whose stocks have been detained and initiate appropriate action as per the provisions of this order within a period of twenty one days. If no action has been initiated by the inspector within the said period of twenty one days from the date of issue of the said notice, the notice of stop sale shall be deemed to have been revoked.
(3) Where any fertiliser is seized by an inspector under this clause, he shall FIR No. 602/94 7/12 forthwith report the fact of such seizure to the collector whereupon the provisions of sections 6A, 6B, 6C, 6D and 6E of the Act, shall apply to the custody, disposal and confiscation of such fertilizers.
(4) Every person, if so required by an inspector, shall be bound to afford all necessary facilities to him for the purpose of enabling him to exercise his powers under sub-clause (1).
13. Now, it is to be seen whether the investigating agency has complied with the provisions of Fertilizer Control Order 1985 while seizing the sub standard fertilizer.
14. As referred to above, in the testimony of PW9, no mention was made as to the manner in which the sample was taken and the manner in which the sample was sealed. 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 PW9. In Cl. 1 of Part A of Schedule II of the Fertilizer (Control) Order, 1985, general requirements of sampling has 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 FIR No. 602/94 8/12 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.
Similarly, in Cl. 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 :
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 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 FIR No. 602/94 9/12 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(i) (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 Cls. 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 FIR No. 602/94 10/12 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.
14. From a perusal of the above, it would be clear that detailed procedure has been mentioned as to the manner in which the sample of fertilizer is to be drawn. In Cl. 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.
15. 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 the PW 9 Baljeet Singh, 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 FIR No. 602/94 11/12 sealed. The P.W. 9 Baljeet Singh, nowhere stated that whether the samples were put by him in a cloth bag and whether samples bags were sealed air tight after filling and marking with details of sample etc., as provided under Cl. 1(f) above.
16. Apparently, during investigation samples were again drawn by Inspector Om Vir from Food and Adulteration Department. However, he has not been examined by the prosecution to prove that samples were taken as per the requirements given above. Moreover, his statement under Section 161 Cr.PC also does not suggest that he took the mandatory precautions while lifting the samples.
17. Thus, the mandatory requirements were not complied with by the investigating agency. It is a settled law that sample is 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 samples. Further, no plausible explanation has been put forth on behalf of the prosecution 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 prosecution's case. It is found that since the aforesaid mandatory legal formalities have not been observed or adhered to in the instant case, both the accused persons are entitled to be acquitted by giving benefit of doubt to them. Accordingly, both the accused persons are acquitted for the offence under Section 420 and under Section 7 of Essential Commodities Act, 1955.
File be consigned to record room.
Announced in the open (RAJESH MALIK)
Court on 21.07.11 MM ( West)-05/NEW DELHI
FIR No. 602/94 12/12