J.C.MISHRA, J. - (1.) THIS petition under Article 226 of the Constitution has been filed by M/s. Tenariwal Trading Company and its proprietor for a writ of certiorari for quashing the First Information Report dated 17-1-98 in Crime No. 17 of 1998 under Section 3/7 Essential Commodities Act (hereinafter called 'the Act' for con­venience) P.S. Kotwali, district Gorakhpur.
(2.) THE prosecution case is that the respondent No. 3 Additional District Agricultural Officer, Gorakhpur in­spected the godown of the petitioners on 30-8-97 and took sample of D.A.P. fer­tiliser. Respondent No. 2 prepared a memo in Form J which indicates that the sample was taken from a stitched bag and divided in three parts one of which was given to petitioner No-2. The sample was received in Central Fertiliser Quality Con­trol and Training Institute, Faridabad on 12-12-97 and it was analysed on 31-12-97. On analysis the sample was found to be non-standard. The laboratory communi­cated the result of the analysis to respon­dent No. 3 in Form L on 7-1-98, a copy of which was sent to the petitioner No. 2 and received on 17-1-98. On the same date respondent No. 3 lodged a report under Section 3/7 of the Act. Heard Sri A.P. Srivastava, learned Counsel for the petitioners and learned A.G.A.
(3.) THE learned Counsel for the petitioners contended that the sample was taken from machine stitched bag of fer­tiliser and, therefore, the petitioners are not liable nor they can be said to have committed any offence. Secondly, he con­tended that there was a gross violation of Clause 30 of the Fertiliser (Control) Order which provides that the sample should be sent for analysis to the laboratory within seven days. The learned Counsel contended that as the sample was sent more than 3 months after the dRawat of the sample there was violation of this mandatory provision and consequently the First Information Report is liable to be quashed. Thirdly, it has been con­tended that initially sample was sent to some laboratory notified by the State Government of U.P. and on analysis it was found to be of standard quality. The respondent No. 3 instead of communicat­ing the result sent the second sample for analysis to Central Fertiliser Quality Con­trol and Training Institute, NH-4 Faridabad which was against the provisions of the Control Order. Fourthly, it has been contended that the petitioners were not given opportunity to get the sample given to them analysed and in the absence of this opportunity to get the sample analysed and tested by a recog­nised laboratory the natural justice was violated. Reference in this regard has been made to a decision of the Supreme Court in State of Punjab v. National Organic Chemical Industrie's Ltd., but neither pronouncement was shown nor its refer­ence was given.;