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1. This appeal has been filed by the accused challenging the judgment and order dated 23/25-4-1988, passed by the Special Judge (under Essential Commodities Act), Jind, convicting the accused-appellant under Section 7 of the Essential Commodities Act, 1955 for having contravened the provisions of Fertilizer (Control) Order, 1985 and sentencing him to undergo RI for two years and to pay fine of Rs. 500/- and in default of payment of fine to undergo further RI for three months.

2. The FIR Ex. PA/4 in this case was registered by the police on 4-7-1986 on the basis of a letter dated 3-7-1986 Ex. PA written by Deputy Director, Agriculture, Jind. In the said letter it was written by the Deputy Director, Agriculture that on 10-5-1986, a sample of DAP fertilizer 18:46, was taken from the Co-operative Credit and Service Society Ltd., Rajpura, which fertilizer was manufactured by IFFCO. It was further alleged that the said sample was sent to the Analytical Chemist, Karnal for analysis and on analysis it was found that the same was sub-standard, inasmuch as the fertilizer was having 15:17:5 instead of 18:46 and appeared to be adulterated. It was further alleged that on 10-6-1986, the remaining 120 bags of fertilizer lying in the godown were sealed because fertilizer was an essential commodity. It was prayed that a case be registered against the Secretary of the Co-operative Credit and Service Society, Rajpura under Clause 19-C of the Fertilizer (Control) Order, 1985 and Section 7 of the Essential Commodities Act, 1955, After registration of the aforesaid FIR, on the basis of the aforesaid letter, the case was investigated by the police. Accused-appellant Sham Lal (Secretary of the Society) was arrested and after completion of the investigation challan was submitted in the Court. The accused was charged under Section 7 of the Essential Commodities Act, 1955, to which charge he pleaded not guilty and claimed to be tried. Prosecution examined its evidence. Thereafter, the statement of accused under Section 313, Cr. P.C., was recorded in which he denied the prosecution allegations against him and stated that he was innocent and had been falsely implicated in this case. He admitted that he was Secretary of the Co-operative Society which used to sell fertilizers to the agriculturists. He stated that the villagers had complained to him that the fertilizer was sub-standard and he had brought this fact to the notice of Satbir Singh, A.D.O. In his defence, he examined D.W. 1 Fateh Singh and D.W. 2 Satbir Singh, Agricultural Development Officer (A.D.O.). After hearing both sides and after perusing the record, the learned Special Judge convicted and sentenced the accused-appellant as stated above vide judgment and order dated 23/25-4-1988. Aggrieved against the same, accused-appellant filed present appeal in this Court.

3. I have heard the learned counsel for the parties and have gone through the record carefully.

4. Learned counsel appearing for the accused-appellant submitted before me that while taking the alleged sample on 10-5-1986 no spot memo of any kind was prepared on the spot and even otherwise at the time of taking the alleged sample the Fertilizer Inspector had not followed the mandatory requirements of Clauses 1, 2, 3 and 4 of Part A of Schedule B of the Fertilizer (Control) Order, 1985 and as such the accused-appellant was entitled to be acquitted on this score alone. It was submitted that there was no material on the record to show as to in what container the sample had been drawn. Reliance has been placed on the law laid down by this Court in the cases reported as Hardeo Singh v. State of Punjab (1990) 1 EFR 206; Jarnail Singh v. State of Punjab, 1988 EFR 425 and Charan Dass v. State of Punjab (1987) 2 Chand LR 291.

5. As referred to above, in the letter Ex. PA. on the basis of which formal FIR Ex. PA/4 was recorded, no mention was made as to the manner in which the sample was taken and the mariner in which the sample was sealed. It was also not mentioned as to how many parts of sample were taken at the relevant time. Furthermore, there is absolutely nothing on the record to show that any spot memo was prepared at the time when the sample was allegedly taken by Hari Singh, Fertilizer Inspector on 10-5-1986. 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 Fertilizer Inspector, at the time when the sample was allegedly taken on 10-5-1986. Similarly, as referred to above, in the complaint Ex. PA, on the basis of which formal FIR Ex. PA/4 was recorded, these facts are not mentioned. In Clause 1 of Part A of Schedule II of the Fertilizer (Control) Order, 1985, general requirements of sampling having been given. It has been specified that in drawing the samples the following measures and precautions should be observed :

(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.

8. From a 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 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. 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 P.W. 6 Hari Singh, Inspector 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 sealed and one sealed container was given to the accused. It was for the first time during cross-examination when he deposed 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 Form J as appended to Fertilizer (Control) Order, 1985. P.W. 6 Hari Singh, Inspector nowhere had stated that whether the samples were put by him in cloth bag and whether samples 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.