Punjab-Haryana High Court
State Of Punjab vs M/S Baldev Khad And Pesticides And ... on 4 May, 2012
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Misc. No. A-50-MA of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Misc. No. A-50-MA of 2012 (O&M)
Date of decision : 04.05.2012
State of Punjab ......Appellant
versus
M/s Baldev Khad and Pesticides and others ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Ms. Gagan Mohini, Advocate
for the appellant
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RITU BAHRI , J.
Crl. Misc. No. 4063 of 2012 This is an application filed under Section 5 of the Limitation Act seeking condonation of delay of 150 days in filing of the criminal appeal For the reasons mentioned in the application, the delay of 150 days in filing of the criminal appeal is condoned.
Crl. Misc. Application is allowed.
Crl. Misc. No. A-50-MA of 2012 The State has come up in appeal against the judgment dated 19.04.2011 passed by Chief Judicial Magistrate, Kapurthala whereby a complaint under Sections 7 and 12 of Essential Commodities Act, 1955 (for short 'the Act') read with clause 19 of Fertilizer (Control) Order, 1985 (for brevity ' FCO') has been Crl. Misc. No. A-50-MA of 2012 (O&M) -2- dismissed.
Brief facts of the case are that on 06.11.2001, Navinder Singh, Agricultural Development Officer along with Balkar Singh, Agricultural Development Officer visited the premises of accused Nos. 1 and 2 and accused Baldev Singh was present at that time. After checking the stock register in respect of DAP Oswal brand manufactured by Oswal Chemicals and Fertilizer Ltd. Paradeep Unit District Jagat Singh pur (Orissa). According to the stock register, 150 bags of 50 kgs. Each were lying in the premises of M/s Baldev Khad and Pesticides store, which was received by the firm on 06.11.2001 through Munjal Agro Chemicals and Fertilizers, Kapurthala accused No. 3 vide bill No. 8606 dated 06.11.2001. Thereafter, samples were drawn as per schedule II part A of FCO. Navinder Singh prepared the sampling detail in duplicate in Form No. J in the presence of Baldev Singh. Then Navinder Singh selected three bags at random No. 1,51 and 101 and then inserted the sampling probe into the selected bags from the corner to another diagonally and collected Fertilizer on clean, dry polythene sheet. After mixing it properly, the sample was divided into four equal parts. This composite sample was spread on the dry, clean and thick ploythene sheet and divided into three equal parts of 500 grams each in weight. Each of these samples was put into clean, dry and thick polythene bags and the polythene bags were tied to make then air tight. Then four form J and three form K under Clause 30(1) of FCO were filled in the presence of Baldev Singh accused No. 2 and Sh. Balkar Singh, Agricultural Development Officer and Sh. Manohar Crl. Misc. No. A-50-MA of 2012 (O&M) -3- Singh, Agricultural Officer, Kapurthala put their signatures of Form No. 6. On 07.11.2001, Rajesh Kumar, Agricultural Development Officer (PP) Black Kapurthala deposited the sample in the office of the Chief Agricultural Officer vide letter No. 365 dated 07.11.2001. Sh. Balwinder Singh entered the same in the sample registered and then the sample along with form K was sent to Fertilizer Quality control Labortory Faridkot vide letter dated 08.11.2001 and Pawan Kumar deposited the same and Form No. K on the same day and got the receipt of the Analytical Laboratory Faridkot. The Analytical report was received and sample was not according to the specification. In this background, the complaint was registered.
On notice, accused Nos. 1 to 4 appeared whereas accused Nos. 5 and 6 were declared proclaimed offender on account of their absence from the proceedings.
Thereafter, pre charge evidence was led on behalf of the complainant, who examined PW1 Balkar Singh, PW2 Navinder Singh and Agricultural Development Officer. After the closure of the pre charge evidence, finding a case on the basis of the evidence of prosecution, charge under Sections 7 of Act was framed against the accused, to which they pleaded not guilty and claimed trial.
Statements of the accused were also recorded under Section 313 Cr.P.C wherein all the incriminating evidence appearing against them was put to them to which they pleaded their innocence and denied their complicity but they led no evidence in defence.
The trial Court after going through the entire evidence, came to the conclusion that the complainant was bound to follow Crl. Misc. No. A-50-MA of 2012 (O&M) -4- the procedure as per the FCO. It was also not established that the samples were taken in a polythene bag which is moisture proof. So, it was not taken as per clause I of Schedule II of FCO which provides that after mixing the sample thoroughly as it possible it be taken in an air tight glass or other suitable container but not in polythene bag. As per the FCO, each packet of sample should not be less than 500 grams. Sample was further taken by approximation and they were not taken in an air tight glass. The possibility of the moisture cannot be ruled out. A Co-ordinate Bench in State of Punjab vs. Sohan Lal, 2003(2) RCR (Criminal) 609 has held that if the procedure prescribed as per FCO is not followed for collecting the samples, no conviction can be ordered.
However, the prosecution has failed to lead any evidence that the material drawn as sample was taken in dry, neat and clean polythene bags, so the prosecution has failed to prove its case against the accused beyond all reasonable doubt.
Dismissed.
(RITU BAHRI) JUDGE 04.05.2012 G.Arora