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Brief facts of the case are that PW5 Kundal Lal, the then Joint Director, Agriculture, Punjab, being Chief Agricultural Officer, Hoshiarpur, 1 of 11 was authorized to institute the complaint under the Act of 1955 as per notification dated 10.07.1991 issued by the Department of Food and Supplies, Govt. of Punjab (Ex.PJ). The fertilizer was declared essential commodity by the Govt. of India vide notification dated 29.03.1957. M/s The Hoshiarpur Cooperative Marketing Society Limited (hereinafter referred to as 'Society') is the licensed dealer vide certificate of dealership Ex.PH issued under Fertilizer Control Order, 1985 (for short 'Control Order, 1985'), which was renewed upto 21.07.1999 vide document Ex.PJ, containing the list of the authorized manufacturing concern, from whom the Society could purchase the fertilizer. Gurmukh Singh, Manager of the Society, who is accused No.1 in this case, had furnished an affidavit Ex.PK to abide by the rules and regulations of the Control Order, 1985 and the Act of 1955 and the same was duly attested by the Notary Public on 05.08.1996. One of the authorized manufacturer is IFFCO, from which the dealer purchased Urea, DAP and NPK fertilizer as per Sr. No.5 of the list Ex.PJ. Vide notification Ex.PF dated 30.07.1986 published in the Punjab Govt. Gazette, various officers of the Agriculture Department were notified as the Fertilizer Inspectors, competent to draw the sample from various dealers/manufacturers/pool handling agencies. Agriculture Inspectors were included within the list of the competent officers, notified as Fertilizer Inspectors. Subsequently, the designation of Agriculture Inspectors was changed to Agricultural Development Officers (ADOs) as competent Fertilizer Inspectors vide notification dated 05.08.1991 Ex.PG, in the State Govt. Gazette.

2 of 11 On 26.08.1996, Sh. B.K. Mehta, Fertilizer Inspector along with Sh. Ashok Kumar, Agricultural Development Officer (Enforcement), Hoshiarpur visited the premises of the Society for the purpose of taking sample of Dia-Ammonium Phosphate 18:46 (DAP) manufactured by IFFCO Kandla Gujarat. Accused No.1 was present in the shop of the Society and was served with a notice Ex.PA by Sh. B.K. Mehta, Fertilizer Inspector, of his intention to draw the sample. This notice was signed by accused No.1. There were 354 bags of DAP, each containing 50 kgs of DAP, IFFCO brand, lying in the stock of the Society, which was considered a lot and four bags were selected at random as per table at page No.41 of the Control Order, 1985. All the bags were of the same brand, which were stored, arranged and kept systematically in rows. The sample was taken by use of clean and dry sampling probe, made of brass, by inserting probe in all these four selected bags, diagonally, from one corner to another. Four of five kilograms of fertilizer was drawn from the four bags and the same was spread on clean and dry polythene sheet on a hard surface. The contents were thoroughly mixed with the hard paper and made homogeneous. It was divided into four equal parts. Two diagonally opposite parts were removed and the process was repeated till the composite remained about 1.5 kgs. This was divided into three equal parts, each weighing 400 grams. Each part was immediately transferred in the clean, dry and thick gauged polythene bags. Each test sample prepared was further put in the dry empty cloth bags, along with Form 'J', five copies of which were signed by him and accused No.1. One copy each, of Form 'J' was put in three bags, along with polythene bags 3 of 11 containing fertilizer and each sample bag was made air-tight with thread. Each part was then sealed with the seal of the Fertilize Inspector. He also prepared two Forms 'K' duly filled, which were completed in the presence of accused No.1 and other members of the raiding party. On each test sample, the identification marks i.e. name of the fertilizer, brand and date of sampling was mentioned. One part of the sealed test sample was handed over to accused No.1, who acknowledged it on Form 'J' and the second test sample along with Form 'K' was deposited in the office of Quality Control Laboratory, Ludhiana vide letter of Chief Agricultural Officer dated 29.08.1996 and the third sample was deposited along with Form 'K' in the office of Chief Agricultural Officer, Hoshiarpur. The analysis report found the contents of the sample fertilizer to be non-standard vide report dated 17.09.1996. A show cause notice dated 25.10.1996 was served upon the Society by the Chief Agricultural Officer along with copy of the report dated 17.09.1996. Accused No.2 has been impleaded because he had been appointed as person responsible for the quality and production of the fertilizer being Chief Manager (Production) by the manufacturing concern and thus, he violated the provisions of Clause 19(1)(a) and Clause 2(h)(q) of the Control Order, 1985 issued under Section 3 of the Act of 1955, which is punishable under Section 7 thereof and there is similar violation by the dealer for possessing non-standard fertilizer. Initially, the Field Officer, IFFCO, Hoshiarpur was also impleaded as accused but on account of his death, proceedings against him were abated.

It is thus argued on behalf of the appellant that the identity of the fertilizer, from where the sample was drawn, is not proved to be supplied by manufacturer/company/IFFCO and therefore, it raises a serious doubt about the prosecution version.

Learned counsel for the appellant has further submitted that in cross-examination, PW2 B.K. Mehta, ADO (Enforcement), who was competent person under the Control Order, 1985 and the Act of 1955 and was part of the raiding team, had admitted that he was not having any logo/pattern of IFFCO with him nor had the stitching pattern. This witness further admitted that he did not ask for any logo or machine pattern from the manufacturer and similar bags are easily available in the market. It is argued that in the absence of date in Form 'J', once it is admitted by PW2 that he had no logo or pattern of IFFCO, it could not proved that bags, from where the sample of fertilizer, were in fact supplied by IFFCO and on the same set of allegations, co-accused Gurmukh Singh, Manager of the Society, from whose premises, the samples were drawn, stands acquitted as the prosecution failed to prove its case against him. It is lastly argued that in the statement of the appellant under Section 313 Cr.P.C. dated 10.08.2004, in reply to a specific question that the fertilizer was purchased by the Society from IFFCO, he had denied this fact and the prosecution failed to lead any cogent evidence to prove this fact.

(f) A perusal of statement of the appellant under Section 313 Cr.P.C. shows that in reply to the question that fertilizer was purchased by the Society from IFFCO, he relied in negative and further stated that he was never working as CM (Production) and was not responsible for the production and quality of the fertilizer and even denied that the fertilizer was supplied by IFFCO and therefore, from the statement of PW1, PW2 and PW5, it is not proved that the samples were drawn from the same bags of fertilizer, which were supplied by IFFCO, especially when it does not bear the proper description like date of manufacturing, as per Form 'J'.