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3. The learned Special District and Sessions Judge, Madurai, by judgment dated 27.5.1996, in S.T.C.No.20 of 1995, holding that the charge against A2 to A4 was not proved, acquitted them and held that A1 was guilty of the offence and therefore, convicted A1 for the contravention of Section 7(1)(a) of the Essential Commodities Act read with Clause 19(a) of the Fertilizer (Control) Order and imposed a fine of Rs.5000/-.

4. The case of the prosecution, in brief, is that P.W.1 Bakthavathsalam, on 9.8.1994 at 10.00 a.m., inspected the fertilizer sales unit of A4, who was appointed as a distributor by A1 company, the appellant herein, at 3-2-15, Sasthan Kovil Street, Ayikudi, Shengottai Taluk and found that A4 was in possession of 1320 kgs. of Std. Mixer No.12 manufactured by the appellant (A1) herein. P.W.1 verified the relevant entries in the Stock Register and found that A4, under Invoice No.2 7309 dated 26.7.1994, got delivery of 33 bags of fertilizer mixtures, which were stored in a closed and protected area of go-down from which P.W.1 took a sample of 1.5 kgs. of fertilizer mixtures and sent it for chemical analysis. Three samples were prepared under three different labels containing the details of sample, type, name of the dealer and the manufacturer. The samples were put in the polythene bags and the labels were then put in and stitched tightly, over which the metal seal was affixed. Even though the fourth accused was offered to affix his metal seal, no metal seal was affixed by the fourth accused, as he did not have the meal seal. The fourth accused was given one sample of his own choice. A mahazar (Ex.P.5) was prepared at the spot itself with respect to the drawal of samples of fertilizer mixtures, which contains the signature of A4. Thereafter, A4, certifying that the samples of fertilizer had been drawn in accordance with the procedure prescribed under the Fertilizer Control Order from the stock in his possession, P.W.1 prepared Form 'J' (Ex.P4), which contains the signature of A4. Among the three samples, one was sent for chemical analysis in Form 'K' (Ex.P6). After the chemical analysis, an analysis report (Ex.P7) of the Fertilizer sample was obtained as spoken by P.W.2. As per the report dated 11.10.1994 marked as Ex.P.7, the sample did not satisfy the prescribed standard, as it contained only 12.64% of Nitrogen instead of required 16% of Nitrogen, while the maximum tolerance limit could only be (-)0.6%. Hence, a deficiency of (-)3.36% of Nitrogen in the fertilizer mixture sample was reported in Ex.P7, and based on which, a complaint was lodged by one Mohamed Kasim (P.W.3) in S.T.C.No.20 of 1995 on the file of the learned Special District and Sessions Judge, Madurai.

(7) Ex.P7 : Analysis report of the fertilizer sample; and (8) M.O1 : one of the samples of fertilizer mixture seized from the premises of A4.

6. Appreciating the evidence of P.Ws.1 to 3 in the light of the documentary evidence, particularly, Exs.P1, P2, P3, P4, P5, P6 and P7, the learned Special District and Sessions Judge, Madurai, held that A1 company is guilty for the contravention of Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 r/w Clause 19(a) of the Fertilizer (Control) Order, 1985; however acquitted A2 to A4, holding that the charge framed against them was not proved. Hence, the above appeal by the first accused.

7.1 Placing reliance on the evidence of P.Ws.1 to 3 and the other documentary evidence, namely, Ex.P4, P5 and P6, Dr.V.Suresh, learned counsel appearing for the appellant, contends that P.W.1 had not followed the procedure as contemplated under Schedule II to the Fertilizer (Control) Order, which prescribes the procedure for drawal of samples of fertilizer mixture.

7.2 In order to substantiate the above contention, Dr.V.Suresh, learned counsel appearing for the appellant, invites my attention to Clause 28(1)(b) of the Fertilizer (Control) Order and Clauses 1(b),(c) & (d), 2(i)(c) and 3(i) of Schedule II to Fertilizer (Control) Order, relating to the procedure for drawal of samples of fertilizer mixture, and contends that the non-compliance of the above procedure for drawal of samples and forwarding the same for chemical analysis vitiates the case of the prosecution.

(v) that apart, A4 himself had certified in Form 'J' (Ex.P4) that the samples of fertilizer had been drawn in accordance with the procedure prescribed under the Fertilizer (Control) Order from the stock in his possession; and

(vi) In any event, the analysis report of the fertilizer sample (Ex.P7), as spoken by P.W.2, discloses that the fertilizer sample contained only 12.64% of Nitrogen instead of 16% Nitrogen, as required under the prescribed standard, and even after giving the benefit of maximum tolerance limit of (-)0.6%, the sample fertilizer suffers from the deficiency of (-)3.36% Nitrogen and the said violation attracts Clause 19(a) of the Fertilizer (Control) Order. The evidence of P.W.2 is based on the analysis report (Ex.P7), which being an expert opinion, cannot be assailed on any ground.