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 Informaton Report in Crime case 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 6th October, 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 Order, 1985 punishable under Section 3/7, E.C.Act. 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 days was not communicated to the petitioners within the statutory period and, therefore, the peti­tioners cannot be prosecuted.
(3.) COMING to the ground No. 1 it may be pointed out that Clause 23 of the Fertil­iser (Control) Order prohibits the sale, offer of sale, stock or exhibit for sale of non-standard fertiliser unless the following conditions are satisfied: (a) the container of such non-standard fertiliser is comspicuously superscribed in red colour with the words "non-standard" and also with the sign "X" and (b) an application for the disposal of non-standard fertilisers in Form H is submitted to the registering authority to grant a certificate of authorisation for sale of such fertilisers and a certificate of authorisation with regard to their disposal and price is obtained in From I; (c) such non-standard fertiliser shall be sold only to the manufacturers of mixtures of fertilisers or special mixtures of fertilizers or research farms of Government or universities or such bodies. ;