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4.1. The learned counsel, Mr. Jigar Gadhvi, for the petitioner has drawn my attention to the complaint, which is filed before the Judicial Magistrate First Class, Court at: Dabhoi, Dist: Vadodara vide criminal case No. 1988 of 2012, whereby the authorities have filed the criminal case against the applicant for the offences punishable under Order 19-1 (a) of the Fertilizer Control Order, 1985 and under Sections 7(1)(a)(2) of the Essential Commodities Act, 1955, whereby the Magistrate has issued the summons, which is challenged by way of the present petition. Furthermore, he has submitted that prima facie, the impugned criminal case and summons issues thereupon do not make out any offence on bare reading of the impugned complaint. Furthermore, he has submitted that in the present case, from the analysis report dated 16.7.2011 of the Fertilizer Sample, it clearly reflects that the sample was taken on 19.6.2011 and the said sample was received on 24.06.2011 i.e. after 5 days. Furthermore, he has submitted that the sample was NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined taken for analysis and was put to analysis between 13.07.2011 to 16.07.2011. The remarks in the said certification indicated that the sample is not according to the specification in water soluble P2O5. Furthermore, he has submitted that the sample after collection on 19.06.2011 was put to analysis after lapse of 24 days, and since, it was rainy season at the relevant point of time the same would have a clear cut impact on the humidity of the material collected and thereafter, the said aspects prejudicially affects the case of the petitioner. Furthermore, he has submitted that as provided under the law under Fertilizer Control Order, 1985, the report of the analyses is required to be supplied to the dealer of the manufacturing limit within 15 days so that the person may exercise right to send it for re-analysis. The analysis report was not being sent to the petitioner within 15 days and therefore, the valuable statutory right of the petitioner to have re-analysis got affected, and the petitioner was deprived of his right to seek reanalysis of the sample. Furthermore, he has submitted that the show cause notice was issued by the respondent No. 2 complainant dated 26.07.2011 and the said notice was being answered by the petitioner pointing NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined out the relevant facts of the case and the defense was put before the office and without looking into the facts of the case and the defense put by the petitioner, the very act of instituting the Criminal Case reflects a prejudicial and biased approached of the authorities. 4.2. Furthermore, he has submitted that in the present case when the sample was being collected, no search seizure Panchanama was drawn and therefore, when the very statutory provision of the Fertilizer Control order is being violated and the very act of seizure of material and/ or taking sample becomes illegal from the very beginning. Furthermore, he has submitted that from the sanction papers, it does not reflect any details as regards Panchanama and it also does not reveals that in what container and/or vessel the sample was taken. Furthermore, he has submitted that it is mandatory that the said exercise of taking sample has to be done objectively and as provided under the law. Therefore, he has submitted that the procedure as provided under the provisions of the Fertilizer Control Order, 1985 is required to be followed strictly, especially the provisions of "Schedule II of Part-A of the Fertilizer (Control) NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined Order, 1985". Furthermore, he has submitted that in the present case, the same is not strictly followed, especially the provision relating to "general requirement of sampling" i.e. Rule 1(e) of Schedule II - Part-A relating to the requirements of sampling. Therefore, Furthermore, he has submitted that the proceedings initiated by the authorities is required to be quashed and set aside.

"3. The precise submission of the counsel for the petitioner is that Fertilizer Control Order 1985 is invoked as issued under Section 3 of the Essential Commodities Act, 1955 and such order stipulated mandatory procedure to be followed by Fertilizer Inspector

4. Learned counsel for the petitioner has draws attention of this Court to the Schedule (1) of pars A of Fertilizer Control Order, 1985, the relevant provisions of which are as follows Part-A PROCEDURE FOR DRAWAL OF SAMPLES OF FERTILIZERS

One sample of fertilizer shall have the approximate weight, as specified below:-

(i) For straight micro-nutrient fertilizers- 100 gms.

(ii) For chelated micro-nutrient fertilizers and 50gms or mixtures of micro-nutrients the maximum packing size of similar quantity

(iii) For other fertilizer and mixtures of fertilizers 400 gms.

5. Preparation of composite sample.

If the composite sample collected from the different selected bags is large then required weight, its size shall be reduced by method of quartering as detailed below:-

6.2.4. It is also relevant to refer the decision in the case of Sham Lal versus State of Haryana reported in 2004 (1) EFR 243, more particularly, paragraph 8 is relevant, as under:

"8. From the perusal of the above, it would be clear that detailed procedure had been mentioned as to the manner in which the sample of fertilizer is to be drawn. In Clause 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 gms. 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 filing and marked with details of sample, type and brand of fertilizer, name of order/manufacture and the name of inspector who has collected sample. 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 PW6 Hari Singh, Inspector appeared in the NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined 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 sealed and one sealed container was given to the accused. It was for the first time during cross- examination when he de- posed that the samples of the fertilizers were put by him in three thick polythene bags, which he had taken with him. He, however, admitted that he did not prepare the detail of the sample in From J as appended to Fertilizer (Control) Order, 1985. PW6 Hari Singh, Inspector nowhere had stated that whether the samples were put by him in cloth bag and whether sample bag was sealed air tight after filling and marking with details of sample etc., as provided under Clause 1 (f) above. Furthermore, as referred to above, PW6 Hari Singh, Inspector had admitted himself that he did not prepare the details of the sample in Form J, appended to the Fertilizer (Control) Order, 1985. In Clause 1 (e) above, it is provided that after putting the sample in a cloth bag, it should be sealed with Inspector's seals after putting inside the detailed description as specified in Form J. Thus, this requirements was also not complied with by the Inspector while taking sample. In 1987 (2) C.L.R. 291 (supra), while considering the similar provision contained in Fertilizer (Control) Order, 1957, it was held by this Court that sample was required to NEUTRAL CITATION R/SCR.A/7828/2019 CAV JUDGMENT DATED: 27/10/2023 undefined be taken in suitable, clear, dry and air tight glass or other suitable containers etc. and requirement of law was not complied with while taking sample and as such FIR against the accused in violation of the mandatory provisions of law deserved to be quashed. Similarly in 1988 EFR 425 (supra), it was held that where the sample was not taken in accordance with the Provisions of Law, the FIR against the accused was liable to be quashed. Similarly, in 1990 (1) EFR 206 (supra) while considering the Provisions of Fertilizer (Control) Order, 1985, it was found that no plausible explanation had been put forth on behalf of the State 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 FIR. It was also found that this lacuna in the prosecution case coud not be filled by giving details at a later stage. It was found that since the aforesaid mandatory legal formalities were not observed or adhered to in the instant case, the FIR and consequent pro- ceedings taken there-under including framing of charge sheet against the accu- sed were liable to be quashed.