Madhya Pradesh High Court
M/S Sharda Krishi Sewa Kendra vs State Of Madhya Pradesh on 8 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Writ Petition No.1658 of 2007
M/S SHARDA KRISHI SEWA KENDRA
Vs.
STATE OF MADHYA PRADESH AND OTHERS
APPERANCE
Shri Sanjay Kumar Bahirani - Advocate for the petitioner.
Shri K.K. Prajapati - Government Advocate for the State.
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Reserved on : 20/02/2025
Delivered on : 8/4/2025
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
The present petitioner under Article 226/227 of the Constitution of India has been filed by the petitioner seeking following reliefs:
i) Issue a Writ of Mandamus/Certiorari or any other writ, order or direction in the nature of writ under Article 226/227 of the Constitution of India and -
(a) direct the respondent No.3 to send the enquiry report and point-wise reply on the Appeal dated 4-11-
2006, Annexure P-VI of the petitioner forthwith and direct respondent No. 2 to decide appeal dated 4-11-2006 and 22-1-2007, Annexur P-VI & P-XI within a time as may be fixed by this Hon'ble Court.
2(b) Quash show cause notice dated 10.10.2006, Annexure P-III Enquiry Report dated 14.6.2007 Annexure P-7 (Page 30 to 36) order rejecting appeal dated 23.11.2006, Annexure R-7 (Page 83) and 12.2.2007, Annexure R-X and criminal proceeding instituited in case No.16487/07 pending before Judicial Magistrate First Class, Gwalior.
(ii) Issue any other writ, order or direction in the nature of writ under Article 226/227 of the Constitution of India, as this Hon'ble Court may deem fit in the facts and circumstances of the case;
(iii) Cost of the petition may also be allowed."
2. Short facts of the case are that the petitioner, being a registered dealer of fertilizer, was engaged in the business of buying and selling fertilizer, which was/is governed by the provisions of the Essential Commodity Act, 1955 and the Fertilizer (Control) Order, 1985. On 06.08.2006, a sample of fertilizer was collected from the petitioner's premises and some lapses were found. Thereafter, a show-cause notice (Annexure P/3, dated 10.10.2006) was issued to the petitioner asking him to file reply within a period of 15 days (i.e. till 25.10.2006), to which the petitioner filed his reply within the prescribed time denying the allegations levelled against him. He had also filed an appeal on 04.11.2006 before the Appellate Authority against the lapses found by the Registering Authority on 14.08.2006.
3. Vide letter dated 28.11.2006, the Appellate Authority issued direction to conduct an inquiry in the allegations made by the petitioner in the appeal after calling reply from the respondent No.3 vide 3 Annexure P-VII. In compliance whereof, respondent No.3 had constituted an inquiry committee, which conducted an inquiry on 23.01.2007 in the petitioner's premises and prepared a Panchnama wherein it was found that while sealing the sample bags and applying the wax seal, the Fertilizer Inspector did not obtain the signatures of himself and the proprietor of the firm from whom the sample was taken on the sample bags and after obtaining the signatures of both parties, the sample bags were not sealed with a wax seal. Since the bags were sealed with a simple paper strip which anyone from either party could open and change the sample and reseal it, therefore, such a sample does not hold reliability rather, it falls under suspicion. It was also found that the trader stated that three out of these four samples have passed and out of which, the passed sample of Ammonium Sulfate was seen after breaking the seal of the bag with the trader's consent. Code No.R.J.L.Y 9 was marked on the bag. Upon opening the bag, the 'J' form inside was inspected wherein it was found that the previous Code No.R.J.L.Y 3 was marked on the 'J' form, which was then cut and Code No.R.J.L.Y. 9 was marked. There are no signatures of any employee from either party on the cutting.
4. Even after conducting the inquiry, respondent No.3 had not submitted the inquiry report to respondent No.2 despite issuance of letters dated 19.12.2006 and 08.03.2007.
5. Even after calling of reply to the appeal preferred by the petitioner by respondent No.2, respondent No.4/S.P., Gwalior had lodged an F.I.R. vide Crime No.790 of 2006 on 14.12.2006 and thereafter started investigation in the matter. Being aggrieved, the petitioner preferred a Writ Petition No.6295 of 2006 before this Court 4 with a prayer that the respondents be restrained from investigating into the allegations made in the aforesaid F.I.R.
6. Vide order dated 10.01.2007, this Court while disposing of the said writ petition, had directed the petitioner to file an application/appeal before the Appellate Authority, who in turn was directed to decide the same in accordance with law. In compliance whereof, the petitioner had filed an appeal before the respondent No.2/Appellate Authority on the same objection as was taken in earlier application/appeal dated 04.11.2006.
7. During the pendency of the appeal before respondent No.2, the respondent No.3 investigated the matter and thereafter, filed a challan before the JMFC, Gwalior on 29.12.2006. On that basis, a Criminal Case No.16487 of 2007 was registered against the petitioner. Being aggrieved by the aforesaid, the present petition has been filed.
8. It is reflected from the reply filed by the respondents vide Annexure R/7 at Page No.140 that the appeal of the petitioner had already been dismissed vide order dated 23.11.2006 whereby appeal of manufacturer M/s Paradeep Phosphate Limited for re-examination of fertilizer sample was rejected since it was found of substandard despite of the fact that respondent No.2 vide letter dated 28.11.2006 directed to conduct an inquiry and thereafter, inquiry was conducted on 25.01.2007 and report thereof was submitted; thus question of rejecting the appeal dated 04.11.2006 and another appeal dated 22.01.2007 in compliance of order of this Court dated 10.01.2007 deserves no consideration. As a consequence of dismissal of the aforesaid appeals, the respondent No.4 vide letter/communication dated 10.10.2006 directed to lodge an FIR against the petitioner, accordingly, an F.I.R., dated 14.12.2006 bearing 5 Crime No.790 of 2006 for the offence under Section 3/7 of the Essential Commodity Act, 1955 was lodged against the petitioner.
9. Learned counsel for the petitioner has submitted before this Court that with regard to the appeal of the petitioner, according to the respondents, was already dismissed vide order dated 23.11.2006 and a bare perusal of the aforesaid order revealed that the said appeal which was at the instance of manufacturer M/s Paradeep Phosphate Limited for re-examination of fertilizer sample was rejected since the sample was found to be substandard, therefore, deserves no consideration. Even otherwise, provisions of Section 32 doesn't provide powers to the Appellate Authority to dismiss the appeal for reference analysis of such sample, as the provision stipulates that in case samples drawn and anaylzed by the State Government and found substandard, the aggrieved person may appeal to the notified Appellate Authority within 30 days of receipt of Analysis Report and request for referee analysis.
10. It was further submitted that the High Court of Judicature at Punjab and Haryana had struck down the Regulation 19 of the Fertilizer (Control) Order, 1985 vide order dated 16.09.1996 in the matter of Tarsem Singh vs. Union of India passed in CWP No.5643 of 1995, being violative of Article 19 read with Article 21 of the Constitution of India, by observing in Para 13 as under:
"13. Summing up Regulation 19 of the impugned Fertilizer Control Order, 1985 is a piece of unfair legislation. It has given an arbitrary power, to the Government to prosecute a person, who cannot show in a Court of Law that the report of the Public Analyst who has declared the sample of the fertiliser as 'sub-standard', 6 could possibly fall in an error leading to his conclusions while testing the sample. It has also snatched a valuable right of a person who deals in the trade of fertilizer and sells the sealed and stitched bags as supplied to him by the manufacturer. Even this piece of legislation has made such dealer punishable who has properly stored the essential commodities as such 'fertilizer'. I am of the opinion that Regulation 19 of the impugned Fertilizer Control Order, 1985 is violative of Article 19 read with Article 21 of the Constitution of India and in its present shape cannot be allowed to operate/stand and as such Regulation 19 of the Control Order is hereby struck down. ...."
11. It was further submitted that according to Schedule II of the Fertilizer (Control) Order, 1985, the sample should be kept in suitable clean, dry and air-tight glass or screwed hard polythene bottle of about 400 gms. capacity, or, in a thick gauged polythene bag, thereafter, the said container should be put in a cloth bag which is to be sealed with the Inspector's in Form 'J/P' after putting inside the detailed description as specified in Form 'J/P'.
12. On the basis of the aforesaid arguments, it was prayed that the present petition be allowed and F.I.R. dated 14.12.2006 bearing Crime No.790 of 2006 and the proceedings initiated vide Criminal Case No.16487 of 2007 on its basis be quashed.
13. Per contra, learned Govt. Advocate for the respondents/State had opposed the prayer so made by counsel for the petitioner and had prayed for dismissal of the present petition.
14. Heard counsel for the parties and perused the record.
715. The High Court of Punjab and Haryana in the matters of Charan Dass Charan Dass & Others v. State of Punjab reported in 1987(1) Criminal Reports 285; Sohan Singh & Another Vs. State of Punjab reported in 1988(1) All India Criminal Law Reporter 860 (Pb. & Hry.); Gian Chand Luthra, v. State of Punjab reported in 1988(2) All India Criminal Law Reporter 985 and Hardev Singh & Others vs. State of Punjab reported in 1989(2) Criminal Reports 420 has held that that infirmities in collecting the sample in violation of the statutory requirements envisaged in Schedule II of the Order, 1985 vitiates the proceedings and is a justifiable ground for quashing the same. The relevant observation reads as under:-
"The impugned First Information Report was was recorded on the basis The of a written complaint made by the Chief Agriculture Agriculture Officer, ant of a written Bhatinda, to the Senior Superintendent of Police Bhatinda. According to the allegations mentioned therein, Shri Avtar Singh, Inspector Agriculture, Rampura Phul, töök á sample of botas 16% Single Super Phosphate Fertilizers (variety Tiger Mark) from the shop of M/s Gurunanak Pesticides and Fertilizer Store, Fertilizer Dealer, Rampura. The said sample was sente for test at Quality Control? Laboratory, Ludhiana, on 30-11-1987. As no per report of the Quality Control Laboratory, Ludhiana, the aforesaid sample was found to be non-standard as single Super Phosphate Fertilizer was found 13.83% instead of 16%. The present:
petitioners, who are partners of M/s Gurunanak Pesticides and Fertilizer Store, Rampura, were prosecuted for 8 contravention of Section 19(1) (A) of the Fertilizer Control Order, 1985 (hereinafter referred to as the Order) for selling sub-standard fertilizer. It was further alleged that the aforesaid firm had cheated the farmers by selling non- standard Single Super Phosphate Fertilizer and thereby the farmers had sufferd an irreparable loss."
16. In the present case, no allegation whatsoever has been made in the First Information Report concerning the manner in which the sample of Ammonium Sulfate Fertilizer was taken by Inspector concered. Neither the quantity of the fertilizer taken for the purposes of test was mentioned nor the container or the type of bag in which the sample of fertilizer was placed, finds mention in the First Information Report. According to Schedule II of the Order, the sample should be kept in a suitable, clean dry and air tight glass or screwed hard polythene bottle of about 400 gms. capacity, or, in a thick gauged polythene bag. Thereafter, the said container should be put in a cloth bag which is to be sealed with the Inspector's in Form 'J/P' after putting inside the detailed description as specified in Form 'J/P. No plausible explanation has been put forth on behalf of the respondents as to why the procedure adopted for taking the sample, or, the manner in which the sample was actually taken doesn't find specific mention in the impugned First Information Report. Even otherwise, from the Panchnama prepared on the basis of inquiry conducted on 23.01.2007 in the petitioner's premises, it was found that while sealing the sample bags and applying the wax seal, the Fertilizer Inspector did not obtain the signatures of himself and the proprietor of the firm from whom the sample was taken on the sample bags and after obtaining the signatures of both parties, the sample bags 9 were not sealed with a wax seal, therefore, such a sample does not hold reliability rather, it falls under suspicion. Since the aforesaid mandatory legal formalities were not observed or adhered to in the instant case, the impugned First Information Report and the consequent proceedings taken thereunder against the petitioner are liable to be quashed.
17. For the reasons mentioned herein-above, the impugned First Information Report and other consequential proceedings thereunder as well as Criminal Case No.16487 of 2007 pending before the trial Court against the petitioners are hereby quashed. The petition is allowed accordingly.
(Milind Ramesh Phadke) Judge PAWAN pwn* Digitally signed by PAWAN KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=b864d1ab4ace2215bfcf3ab301c34d63 1287f1b1cdd90b4a49f265f02d9d593f, KUMAR postalCode=474001, st=Madhya Pradesh, serialNumber=61B9D129971D2EA4FD4455ED4 9EA436EA65E26164BEEED89153191C56E98CE2 1, cn=PAWAN KUMAR Date: 2025.04.08 18:35:56 +05'30'