J.C.MISHRA, J. - (1.) This petition has been filed by M/s. U. P. Agro Bhathat and its Branch Sales Officer for a writ of certiorari for quashing the First Information Report in Crime No. 780 of 1997 under Section 3/7 Essential Commodities Act P.S. Gulharia, district Gorakhpur and mandamus directing the respondents not to arrest petitioner No. 2.
(2.) The prosecution case as contained in the First Information Report lodged on 6/10/1997 is that the respondent No. 3, Additional District Agriculture Officer, Gorakhpur inspected the shop of the petitioner 'U. P. Agro' and took a sample of D.A.P. fertilizer, which on analysis was found to be deficient in phosphorous and nitrogen. It is alleged that sale of non-standard fertilizer is violation of Fertilizer Control Orders, 1985 punishable under Section 3/7 E.C. Act.
(3.) Sri A. P. Srivastava, learned counsel for the petitioners contended that the sample of D.A.P. fertilizer was drawn from machine stitched sealed bag fertilizer supplied by the manufacturer and, therefore, the petitioners are not liable of nor they can said to have committed any violation of the Control Orders. Secondly, he contended that the licence of the petitioners in view of sale of non-standard fertilizer was suspended. The petitioners made representation and in pursuance of cause shown by them the order of suspension was recalled. Thirdly, it has been contended that the First Information Report was lodged after a delay of 9 months and as no explanation for delay was shown it is liable to be quashed. Fourthly, it has been contended that petitioner No. 2 who is only a salesman cannot be said to have committed any offence by sale of machine stitched sealed fertilizer which was received as such from the manufacturer. Fifthly, it has been contended that the result of the chemical analysis which ought to have been sent within 60 day was not communicated to the petitioners within the statutory period and, therefore, the petitioners cannot be prosecuted.;