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It is the case of the petitioner that the 2nd respondent - Additional Director of Agriculture visited the premises of the writ petitioner company on 8.12.2010 and inspected the records, registers including invoice register and seized the same on the ground that there are certain discrepancies noticed by him. A panchanama was also drawn in that regard at 3.30 PM on 8.12.2010. On 10.12.2010, a show-cause notice was drawn as to why the license granted earlier should not be suspended/cancelled for having contravened the provisions of Clause 4(a), 5 and 35 of Fertilizer Control Order (FCO), 1985. The contraventions noticed during the inspection carried out on 8.12.2010 have been listed in the said show-cause notice as under:

Various expressions used in the Fertilizer Control Order have been defined in clause 2 of the FCO, 1985. The expression `fertilizer' has been defined in Section 2(h) while the expression compound or complex fertilizer has been defined in clause 2(d). Any substance either used or intended to be used as a fertilizer of the soil or for a particular crop which is specified in Part A of Schedule I including a mixture of fertilizer answers the description of a fertilizer. It is not in dispute that the writ petitioner company is a manufacturer of the substance which is falling squarely within the definition of `fertilizer'. The expression `prescribed standards' has been defined in clause 2(f) of the FCO, 1985. The standards required have been detailed in Part A of Schedule I of the FCO. Procedure for drawl of sample of fertilizers has been detailed in Part A of Schedule II of the FCO. If we look at Clause 28(1) of the FCO, any Inspector is empowered to draw samples of any fertilizer in accordance with the procedure specified in Schedule II and such samples can be drawn from manufacturer, importer, pool handling agency, wholesale dealer or retail dealer. A critical examination of the procedure prescribed in Schedule II of Part A of the FCO discloses the general requirements for drawing a sample and requirements for drawing a sample for a bagged material, preparation of test sample and reference sample etc. Method of analysis of the fertilizers is also specified in Part B of the Second Schedule. If the petitioner is seeking to make an issue out of the procedural failure on the part of the Inspectors while drawing samples, from the dealers of the petitioner company, then such protest must be lodged at the initial stage by such dealers. The petitioner cannot wait for a long period and then lodge the complaint with regard to lack of procedural adherence, depending upon the result of the analysis of the sample. If the sample passes the muster, it cannot be construed that the procedure prescribed in Part A of the II Schedule as to have been faithfully followed and if the sample has failed, a faulty procedure of drawing samples cannot be alleged. In the instant case, several samples have been drawn and a good number of them have failed as was demonstrated by the respondents by enclosing the material to the counter affidavit in the form of the analysis reports submitted by various laboratories in Form L as is required under the FCO. Clause 30(3) of the FCO has clearly stated that the authority to whom the analysis report is sent under sub-clause (2), shall communicate the result of the analysis to the dealers/manufacturer/importer/pool handling agency from whom the sample was drawn within 15 days from the date of receipt of the analysis report from the laboratory. Admittedly, the samples have been drawn from the dealers of the petitioners. Therefore, the requirement of law is that the analysis report received in Form L from the laboratory concerned has to be made available to the agency wherefrom the sample has been drawn, whereas, it is the petitioner who is making a grievance out of the same and no dealer of it has instituted any such complaint that either a faulty procedure is adopted while drawing the samples or the analysis report in Form L has not been made available to it. I have, therefore, no hesitation to reject the contention canvassed on behalf of the petitioner that the samples of fertilizer manufactured by the petitioner have failed because of the faulty procedure adopted while drawing the samples.

Further, Clause 29 of the FCO dealt with the obligation of analyzing the fertilizer sample drawn by the Inspector. Clause 29-B dealt with issue of referee analysis. The 2nd proviso to sub-clause (1) of Clause 29-B required that whenever the analysis report of a fertilizer has been challenged, a sample of the fertilizer may be sent for referee analysis to any one of the other laboratories except those which are located in the State or where the 1st analysis has been done. In fact keeping these requirements in mind, paragraph (6) of Part A of Schedule II to the FCO required the composite sample to be divided into 3 approximately equal portions and one of those three samples shall be sent to the incharge of the laboratory notified by the State Government under Clause 29 or any of the Central Quality Laboratories notified for analysis. Another sample shall be given to the manufacturer or importer or dealer or the predecessor as the case may be from whom the sample is collected. The 3rd sample shall be sent by the Inspector to his next higher authority for keeping in safe custody. Whenever a challenge is mounted for the 1st analysis report of the fertilizer, any one of the remaining two samples may be used for referee analysis in terms of sub-clause (2) of Clause 29-B. Therefore, the FCO has provided for a detailed procedure of not only drawing samples but as to how to preserve those samples and as to how a referee analysis (which is normally called re-analysis) should be sought for. In the instant case, the show-cause notice drawn on 29.12.2010 has listed out the details relating to 14 samples which have failed when they were analysed. These samples have been drawn from various places such as Sanga Reddy in Medak District, Jogipet in Medak District, Narayankhed and Siddipet in Medak District, Valigonda in Nalgonda District Yedapally in Nizamabad District, Venkatapuram in Khammam District as well as Khammam Urban dealer of the petitioner. It is also made out in the show-cause notice that these samples have been collected by the respective Mandal Agricultural Officer concerned. They are all different individuals. If the petitioner really wanted to challenge that these officers have not followed proper or correct procedure while drawing the samples, he should have made out a specific case as to which of these Mandal Agricultural Officers has failed to follow the proper procedure. The petitioner also ought to have impleaded such an officer as a party respondent to the writ petition so that he should have had an opportunity either to controvert or contest the factual assertion of the writ petitioner that while drawing samples the procedure prescribed in Schedule II of the FCO has not been followed. I am, therefore, convinced that a generalized statement, without specifics, that correct procedure has not been followed while drawing samples and consequently that was the only attributable reason for the adverse reports filed by referee analysis laboratories as not sustainable and hence I reject the contention that an improper sample drawing procedure is the one which is responsible for the adverse analysis reports filed by the laboratories which analysed the samples.

I am also not in a position to agree with the contention that non availability of Form L analysis report to the petitioner is a transgression of the principles of natural justice. As is noticed, Clause 30(3) of the FCO required such analysis report to be made available to the agency wherefrom the sample has been drawn. It is for the petitioner to collect such analysis reports from the respective dealers and then explain the reasons as to why the samples have failed. Most significantly, after this court had rendered judgment on 21.4.2011 in WP No. 11440 of 2011 remanding the matter for re-consideration to the 2nd respondent, the Commissioner and Director of Agriculture, Andhra Pradesh, through his communication on 13.6.2011 furnished to the petitioner, the material sought for by it viz., the analysis report in Form L submitted by the laboratory at Rajendra Nagar, Hyderabad, on 22.12.2010 and the laboratory at Anantapur. The Form L analysis report dated 22.12.2010 declared the sample to have failed in its nutrient content while the Form L Report dated 23.12.2010 submitted by the laboratory at Anantapur has failed in Total Nitrogen content and water soluble potassium content. Further, the Commissioner and Director of Agriculture, Hyderabad, Andhra Pradesh, through his letter dated 18.6.2011, made available the re-analysis reports sought for by the petitioner on 5.5.2011. Pausing here for a moment, only upon making available the analysis reports of the samples drawn to the respective dealers where from such samples were drawn, the occasion had arisen for such dealers to seek re-analysis of the sample collected from them. Acceding to that request, the samples have been subjected to re-analysis. On 5.5.2011, the petitioner has sought for those analysis reports. Sample bearing Code No. 11669/XVI/10-11 collected on 9.12.2010 has been got re-analysed and that was declared as conforming to the standards specified in the FCO, 1985 by the Regional Fertilizer Control Laboratory, Navi Mumbai, which made available the re-analysis report in Form L on 11.2.2011. The sample has been analysed by the said laboratory on 31.1.2011. A copy of the said Form L - Analysis Report has been thus made available to the petitioner. Similarly, the Fertiliser Control Laboratory, Pune, to whom the sample bearing RS/72-10 was made available for re-analysis on 11.2.2011, was analysed by the said laboratory on 25.2.2011 and the result was that the sample is according to the specifications. A copy of the report of analysis in Form L submitted by the Fertiliser Control Laboratory, Pune, dated 25.2.2011 has also been made available to the petitioner. One other sample bearing No.R/27 which has been sent up to State Fertiliser Testing Laboratory, Durgapura, Jaipur, Rajasthan on 7.2.2011 was analysed by the said laboratory on 4.3.2011 and the result of the analysis was that the sample is not according to specifications and hence declared as non- standard in Total Nitrogen, Neutral Ammonium Citrate, Soluble Phosphates, Water Sol. Phosphates and Particle Size. Another sample bearing Code No. 11668/xvi-10-11 sent up for analysis by the State Fertilizer Control Laboratory, Rudrapur, Udham Singh Nagar, Uttaranchal has analysed between 14.3.2011 to 28.3.2011 and the analysis report submitted by that laboratory in Form L declared the sample as Non-standard. One other sample bearing Code No. RS/83-10 sent up for re-analysis to Fertiliser Testing Laboratory, Government of Gujarat, Gandhi Nagar, was declared as Non-standard by that laboratory. Copy of that report was also made available to the petitioner. Another sample bearing Code No. 21/36/10/F-35 sent up for analysis to State Fertiliser Quality Control Laboratory, Bhojpur, Sundernagar District, Mandi, Himachal Pradesh, was analysed by the laboratory between 21.2.2011 to 7.3.2011 and the result was that the sample is not according to the standard prescribed by the FCO, 1985 and it has failed. Thus, the adverse material as well as the two favorable analysis reports, after re-analysing the samples as requested for by the dealers of the petitioner company has been made available to the petitioner. On 18.7.2011, the petitioner has drawn out a detailed representation and submitted the same to the 2nd respondent. The petitioner once again raised an objection that the departmental officials have taken samples exclusively of all the products of the petitioner company leaving the products of other manufacturers from drawing samples. In paragraph (4) of the said representation, it is noted that out of the 14 samples which were declared as non-standard, one sample was within the parameters of administrative action and hence the Assistant Director of Agriculture, Hayat Nagar has imposed a penalty of Rs.10,000/- and the same was remitted into Government Treasury by the dealer of the petitioner company. It is further contended that even after re-analysis, six of the samples called for only administrative action and hence the dealers have remitted the necessary penalty into the government treasuries. The petitioner is, therefore, clearly aware that the samples drawn of the fertilizers manufactured by it have failed even in the re-analysis exercise and that wherever administrative action by way of imposition of penalty is called for such penalties have all been paid up. No issue is made out in such cases about the faulty procedure of drawing samples and the findings of the analysis of such samples are accept without any demur. Penalties are quietly paid up as well. The remaining samples therefore clearly called for severe legal action. Hence, I am not in a position to conclude that all due to faulty procedure adopted by the State, the samples have failed. The samples drawn from the various dealers of the petitioner have not only been analysed at various laboratories available within the State of Andhra Pradesh, but they have been sent to various laboratories situate in several other States such as Tamil Nadu, Gujarat, Uttaranchal and Himachal Pradesh. The integrity of these laboratories cannot be doubted. Nor can one assume that a proper procedure is not adopted by those laboratories while analyzing the sample. After careful and proper analysis of the sample sent to them, they have filed adverse report setting out that the samples of the petitioner fertilizer have failed. It is not in doubt that if a sample has failed, the authorization is susceptible of cancellation in terms of Clause 31 of the FCO.