J.C.MISHRA, J. - (1.) THESE petitions have been filed by the accused for a writ in the nature ol the ceniomri for quashing I he First Information Report dated 2S-2-98 in Crime No. 10 of 1998 under Section 3/7 Essential Commodities Act, P.S. Belghul, district Gorakhpur.
(2.) THE prosecution case as contained in the impugned F.I.R. is that Depuly Divisional Agrieulture Development Of­ficer, Khajui, district Gorakhpur, respon­dent No. 3, on 30-11-97 inspected the fer­tilizer shops of M/s. Gupta KhadBhandar, Bazar Lakhura, Pakad Shankerpur and M/s. Janata Khad Bhandar, Kuli Bazar and took samples of D.A.P. and single super­phosphate fertilizers. Vishwakarma, petitioner of Criminal Misc. Writ Petition No. 780of 1998is proprietor (MM/s. Janata Khad Bhandar whereas Jokhan Prasad, petitioner of Criminal Misc. Writ Petition No. 781 of 1998 is proprietor of Gupta Khad Bhandar. The samples were sent for chemical analysis. On chemical analysis they were found to be non-standard. Respondent No. 3 thereupon filed First Information Report against both the petitioners forviolalion of Fertilizer Con­trol Order, 1985 punishable under Section 3/7, E.G. Act. The petitioners have filed copy of Form 'J', which indicates that there were 88 bags of super phosphate single 16% fer­tilizer in thegodown of Janata Khad Bhan­dar, Kuti Bazar. The petitioners appended their signatures on the said Form 'J' in token of admission that the samples were taken from bags and they were divided in three packets and thereafter properly kept and sealed. Both the petitioners were provided one sample each.
(3.) THE petitioners have filed these petitions for quashing the First Informa­tion Report on the grounds inter alia that from the lot of 88 bags of fertilizer sample was taken from only one bag in violation of the mandatory provision. It is stated that the sample should have been taken at least from three bags. Secondly, it has been contended that the bags were found stitched and sealed and, therefore, only the manufacturer is liable. The First Informa­tion Report was lodged in violation of subsection (5) of Section 3 of the E.G. Act and Order 37 of the Fertilizer Control Orders. It has also been contended that result of the analysis was not communi­cated in accordanceof clauses 19, 30 and 32 of the Fertilizer Control Orders, and, therefore, the report could not be lodged. It has also been stated that the fertilizer was not found to be adulterated and for non-standard fertilizer no report could be lodged.;