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2. Gist of the case are that on 2-9-1993, Kuldip Singh, Fertilizer Inspector, accompanied by Sarabjit Singh, Agricultural Development Officer, (Plant Protection), Kapurthala, inspected the premises of M/s Punjab Agro Industries Corporation Ltd; V & P.O Miani Bakarpur, Tehsil and District Kapurthala. Ajit Singh, Incharge of the Corporation, was present there. The Fertilizer Inspector, gave a notice, showing his intention of taking the sample of fertilizer, for the purpose of analysis, under the Fertilizer (Control) Order 1985 (hereinafter to be called as the Order Only), which was received by him (Ajit Singh). The Fertilizer Inspector, then inspected the dealer's registration and stock register, in respect of "Jat Super" Single Super Phosphate 16%W.S, P2 P5 (Granulated), manufactured by M/s Agro Chem. Punjab Ltd; village Singhpura (Dera Bassi), Distt. Patiala. According to the stock register, there were 191 stitched bags of 50 kg. fertilizer each. Kuldip Singh, Fertilizer Inspector, signed the stock register, at page No. 40. This fertilizer was received by the firm, on 5- 6- 1993, through dispatch order Challan No. 411 dated 4-6-93. He checked the lot number and date of manufacture, on each bag. It was not mentioned on any bag. He also checked the Challan, aforesaid, to verify the lot number. It was also not mentioned therein. Thereafter, the Fertilizer Inspector, prepared the sampling detail, in duplicate, in Form 3 J, in the presence of Ajit Singh, Accused, aforesaid. Both of them put their signatures, on Form J. One copy of Form J, was handed over to Ajit Singh. Three bags, bearing Nos. 7, 71 and 135 were selected, at random. Thereafter the Fertilizer Inspector, inserted the sampling probe diagonally, from one corner to another, in those selected bags. The fertilizer so collected, was put on a clean and dry polythene sheet. It was mixed properly and divided into four equal parts. Two diagonally opposite parts, were removed. The remaining parts were again mixed together forming a composite sample of 1.500 kgs. This composite sample was again spread on the dry, clean and thick polythene and divided into 3 approximate portions of equal weight. Each of the sample parts, was put into dry, clean and thick polythene sheet bags and the same were tied, to make the same air-tight. Then four detailed descriptions as specified in Form J and three Form K, under clause 30(1) of the Order, were filled in, in the presence of Ajit Singh, Incharge of M/s Punjab Agro Industries Corporation Ltd; V. & P.O Miani Bakarpur, Tehsil and District Kapurthala, and Sarabjit Singh, who put their signatures, on Form J. The detailed description in Form J alongwith each of the sample portion in polythene bags was put into three cloth bags separately, which were sealed with the seal bearing impression FI. Ajit Singh was given opportunity to put his seal impression on Forms J and K and on each portion of the sample. He availed of this opportunity as he put his seal bearing impression PAIC. Then the Fertilizer Inspector, put serial No.1, on the cloth bags, as identification mark of sample. One portion of the sample, was given to Ajit Singh and his signatures were obtained on Form J, in this respect. On 3-9-93, the remaining two portions of the sample alongwith Forms J and K (two in each) were deposited, with the Chief Agricultural Officer, Kapurthala, vide letter of the even date by Kuldip Singh. Balwinder Singh, Agricultural Development Officer (E), received the sample, on behalf of the Chief Agricultural Officer, Kapurthala. One portion of the sample alongwith Form K, was sent to the Analytical Chemist Fertilizer Quality Control Laboratory, Punjab, Faridkot, through Rajinder Singh, Beldar, on 8-9-93. Rajinder Singh, Beldar, deposited the same alongwith Form K, on the same day i.e 8-9-93 and got the receipt on the office copy from the Agricultural Development Officer of the Laboratory and handed over the same to Balwinder Singh. The Analytical Chemist (Incharge) Fertilizer Quality Control Laboratory, Punjab, Faridkot, sent the analysis report, according to which, the contents of the sample were not according to the specifications and hence non standard. A show cause notice alongwith a copy of the analysis report, was sent to M/s Punjab Agro Industries Corporation Ltd; V & P.O Miani Bakarpur, Tehsil and District Kapurthala, authorised dealer by the Chief Agricultural Officer, Kapurthala, which was received by it and duly signed by Ajit Singh, accused No.2. Accused No. 3 M/s Punjab Agro Industries Corporation Ltd; is the distributor. The fertilizer was manufactured by M/s Agro Chem. Punjab Ltd; village Singhpura (Dera Bassi), Distt. Patiala, having Regd. office Dhillon Complex, Mani Majra, Chandigarh UT ). A show cause notice alongwith a copy of the analysis Report, was sent to it. Ajit Singh, was the person Incharge of and responsible to M/s Punjab Agro Industries Corporation Ltd; V & P.O Miani Bakarpur, Tehsil and District Kapurthala, accused No. 1 for the conduct of its business, at the relevant time, whereas, Gurdip Singh Chahal Chief Chemist was the person Incharge of and responsible to M/s Agro Chem. Punjab Ltd; accused No.4, for the conduct of its business. Accused No. 1 to 3, for keeping and exhibiting for sale the non-standard fertilizer, accused No. 3 by distributing the non-standard fertilizer and accused No. 4 and 5, by manufacturing and exhibiting for sale the nonstandard fertilizer, accused No. 3 by provisions of Clause 19 of the Order, and committed the offence punishable under Section 7 of the Essential Commodities Act, 1955 (Amended upto date), (hereinafter to be called as the Act only)

12. Inspector Kuldeep Singh who had inspected the Corporation and obtained fertilizer sample, failed to follow the procedure laid down in the Fertilizer (Control) Order, 1985 in particularly Rule 1(e) and Schedule II which reads as follows:-

"(e) The sample should be kept in suitable, clean dry and air tight glass or screwed hard polythene bottle of about 400 gm capacity or in a thick gauged polythene bag. This should be put in a cloth bag which may be sealed with the Inspector's seal after putting inside the detailed description as specified in Form "J" Identifiable details may also be put on the cloth bag like sample No./Code No. or any other details which enables its identification;

13. The sample fertilizer was collected and kept in thick polythene sheet and the same were tied, is not in accordance with the aforesaid specific procedure. No doubt "other containers" collecting the fertilizer sample in a polythene sheet does not fall within the definition of other suitable container. This Court has held that provisions of Fertilizer (Control) Order 1985 are mandatory. Therefore non-compliance of the aforesaid procedure registration of complaint and sentencing the appellant are liable to be set aside. Learned counsel submitted that the Analytical Chemist (Incharge) Fertilizer Quality Control Laboratory, Punjab Faridkot who had submitted report relating to sub standard fertilizer, has not been examined. Even though the entire complaint and further proceedings were based on the analytical chemist report dated 21.09.1993. Even on this count entire proceedings are vitiated.

15. On the date of filing of complaint i.e. 05.07.1996 "fertilizer" was not one of the item included in the Essential Commodities Act, therefore, registration of complaint itself is not clear. The Essential Commodities (Amendment) Act, 2006 wherein fertilizer, whether inorganic, organic or mixed" so incorporated in the Schedule (See Section 2-A). In view of these facts and circumstances, the concerned authorities have proceeded to initiate complaint without examining the provisions of law of the Essential Commodities Act, 1955 read with Schedule II (See Clause 28 (1)(b) and 29 -Part A procedure for drawal of samples of fertilizers etc. Therefore, in the present case, I find serious legal flaw in proceeding under Essential Commodities Act, 1955 against appellant and others.