RAJIV SHARMA, J. - (1.) LEARNED counsel for the petitioner submits that M/s Paradeep Phosphates Ltd. is a factory manufacturing fertilizers, namely, N.P.K., DAP & Urea etc. On 28th July, 2003, the District Agriculture Officer, Rae Bareli inspected the godown of Sigma Buffer Stock and three samples were taken' from one lot of the fertilizer. First sample for analyzation was sent to the Fertilizer & Insecticide Control Laboratory, Alambagh, Lucknowand after analyzation, report was sent to the higher authority to take cognizance upon the report dated 2.9.2003. The said report was communicated to the petitioner by means of a letter dated 30.10.2003. Against the report, the petitioner preferred an appeal before the respondent No. 3/Deputy Director Agriculture (Fertilizer). On 11.11.2003, second sample was sent to the Fertilizer Inspector for sending the same to some other Laboratory for testing. In the meantime, on the basis of the first analysis report, Director of Agriculture restrained the petitioner from selling the DAP. On 2.9.2004, analysis report of the second sample was communicated to the petitioner in which Nitrogen was found 14.96% and Phosphates 45.57%. Since in testing the DAP was found substandard, stock of 400 MT of DAP was seized on 15.11.2004. Petitioner submitted representation praying for analyzing the third sample, which was given to him at the time of checking the stock at Sigma Buffer Godown, since there was variation in reports.
(2.) THE State has filed its counter-affidavit and did not dispute the averments made in the writ petition. However, it has been stated that the appellate authority has no jurisdiction for sending the third sample which has been collected to the laboratory for its analysis. It has also been stated that the sample has been collected three years back and in any case, if the same is being sent for analysis now, no positive result will come out. The composition of chemicals in the said Phosphates is not as per the standards prescribed and there was a variation of more than 18%, whereas the variation, which is being allowed is upto 10%. In the rejoinder affidavit, it has been stated that the samples have not been collected as provided in the Schedule and further, the sample which has been drawn could hardly represent 100 MT quantity and as such, in the two reports, which too were contradictory, are perse illegal and against the procedure prescribed in the Fertilizer (Control) Order, 1985.
(3.) HEARD learned counsel for the parties and perused order passed by the Appellate Authority as also the record.;