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The learned Government Pleader has pointedly drawn my attention to the reports submitted by various laboratories which analysed the samples collected from various dealers in the State. One of the samples was re-analysed by the Regional Fertilizer Control Laboratory, Navi Mumbai. In its analysis report dated 23.2.2011, it found the sample as not according to the specifications and failed in Total Nitrogen, Total Phosphate and Water Soluble Potash components. One another sample has been analysed at the Fertilizer Control Laboratory, Bangalore. The analysis report in Form L submitted by the said laboratory disclosed the Total Nitrogen percent by weight of the sample is 8.71 as against 17.0. Thus, the deficiency noticed was as high as 8.29. Similarly, as against the total phosphate per cent by weight, the sample was found to have 16.82 as against 17 and when it came to Water soluble potash, it was 19.43 as against 17 that should be present. Therefore, the laboratory found the sample as not according to the specifications and failed in its nutrient content. One other sample was analysed by the Fertilizer Control Laboratory at Salem in Tamil Nadu. The analysis report submitted in Form L by the said laboratory also reveals that the sample fails in Total Nitrogen and Combined Nutrient values and hence the sample is declared as non-standard. Another sample was got analysed at State Fertilizer Quality Control Laboratory, Bhojpur, Sundernagar, District Mandi, Himachal Pradesh. In its analysis report in Form L dated 14.3.2011, it has been reported that the sample is not according to the specifications contained and failed in particle size only. Another sample was got re-analysed at the Fertilizer Control Laboratory, Kumbakonam in Tamil Nadu. The analysis report in Form L submitted by it on 8.3.2011 declared the sample to have failed in Total Nitrogen, Ammoniacal Nitrogen, Neutral Ammonium Citrate Soluble Phosphates, Water Soluble phosphates and water soluble potash. The sample was declared as non-standard. One other sample was got analysed at the State Fertilizer Control Laboratory, Rudrapur, Udham Singh Nagar, Uttaranchal State. The sample was declared as non-standard by the said laboratory in its analysis report submitted in Form L dated 28.3.2011. One other sample was also got tested at the Fertilizer Testing Laboratory, Sector 15, Gandhi Nagar, Gujarat. In its analysis report dated 10.3.2011, the said laboratory declared the sample to have failed. The Fertilizer Control Laboratory at Trichy, Tamil Nadu, has also declared the sample sent to it for analysis to have failed. Similar is the fate with regard to sample analysed by the Regional Fertilizer Laboratory, Madhavaram Milk Colony, Chennai. On the basis of these analysis reports, the learned Government Pleader had contended that the respondents have acted very fairly in the matter and they have got the samples collected from various dealers of the writ petitioner analysed not only at various laboratories available within the State, such as those available at Warangal, Anantapur etc., but some of the samples were sent to various laboratories situate in States of Tamil Nadu, Karnataka, Gujarat, Uttaranchal and Himachal Pradesh. The samples which were analysed by those laboratories have all failed. Therefore, the learned Government Pleader would contend that no case is made out for interference by this court.

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.

The contention canvassed that the selective approach of collecting samples of the products of the petitioner company reflects a pre-determined approach of the respondents is without much merit. Clause 13 of the Fertiliser (Control) Order, 1985, envisages an embargo on manufacture of any mixture of fertilizers which do not conform to the standards set out. Similarly, Clause 19 injuncted any person either himself or through any other person on his behalf to manufacture for sale, or sell or offer for sale or stock or exhibit for sale or distribute any fertilizer which is not of prescribed standard. Similarly, Clause 19(b) injuncted from manufacture, selling, offering for sale, stocking or exhibiting for sale or distributing any mixture of fertilizers which is not of prescribed standard specified in that regard. Therefore, if any information has reached the State and its officials warranting samples to be drawn of any such fertilizers which are offered for sale, such an action cannot be challenged as a selective approach adopted by the State or its officers. It is well to remember that a sample drawn of any fertilizer offered for sale must conform to the standards specified. Even if such a sample has been selectively drawn, failure of the sample to conform to the standard specified is of much relevance rather than selective sampling procedure instead of a random sampling of all fertilizers offered for sale adopted by the respondent. I therefore have no hesitation to reject the contention that the selective approach of drawing sample of the fertilizer manufactured by the petitioner reflects a pre- determined approach on the part of the respondents. Far there from, based upon some information or input drawing of samples has been triggered when once the anaylsis report, is made available, which was confirmed in the re-analysis of the sample, it only justifies the anxiety of the State to make available standard and quality products of the fertilizer to be made available for the farming community and all non-standard or spurious fertilizers to be weeded out in the market to prevent their access and reach to the farming community. It is also apt to remember that the show-cause notice drawn against the petitioner on 29.12.2010 has clearly indicated the details relating to the 14 samples which have failed the test. The show-cause notice has clearly indicated the authority who has drawn the sample and the result of the analysis report indicating the percentage of deficiency of the sample. Therefore, it was proposed to take action, for the breach committed of Clause 19(b) of the Fertiliser (Control) Order, 1985, in the process.