J. C. Mishra, J. - (1.) -The aforesaid petitions have been filed for a writ of certiorari quashing the first information reports lodged under Section 3/7, Essential Commodities Act for violation of Fertiliser (Control) Order, 1995 (hereinafter called 'Control Order' for convenience).
(2.) IN Criminal Misc. Writ Petition No. 814 of 1998, first information report was lodged by Additional District Agriculture Officer, Gola Khazana, Sahjanwa, District Gorakhpur against the Secretary, Sadhan Sahkari Samiti Limited, Raja Vishanpura on the allegation that the sample of D. P. Fertiliser drawn on 10.8.97 was found to be non-standard due to deficiency of nitrogen and phosphorus. The first information report which was lodged on 7.10.97 has been sought to be quashed on the following grounds-(i) the result of the analysis was not communicated to the petitioner. The petitioner is not liable as the fertiliser was purchased from the manufacturer I.F.F.C.O. and was distributed by the Society. The U. P. Co-operative Federation, Lucknow initially got fertiliser from Central Government such as INdian Farmer Fertiliser Corporation conveniently referred as I.F.F.C.O. which is manufacturer and the fertiliser and was distributed to various societies under the direction of U. P. Co-operative Federation, therefore, the petitioner is not responsible for any deficiency ; thirdly it has been stated that on representation by the petitioner, the Chief Development Officer (Co-operative) directed the District Agriculture Officer to get the fertiliser reanalysed and to take action only after the receipt of result of the second analysis by laboratory as there are chances of the fertiliser being adversely affected by moisture. In Criminal Misc. Writ Petition No. 815 of 1998, the first information report was lodged by District Agriculture Officer, respondent No. 1 on 17.1.1995 on the allegation that sample of D.A.P. spak and DAP Godawari taken on 30.8.1997 from the godown of the petitioner were found to be non-standard on analysis. Firstly, it has been contended that the samples collected on 30.8.1997 were found to be standard on analysis and, therefore, no action was taken against the petitioner nor the result was communicated. The samples were, however, again sent for Chemical analysis to Central Laboratory on 3.12.1997 and were found to be non-standard. On the basis of second analysis the impugned report was lodged. Secondly, it has been stated that before filing the report no opportunity was given to the petitioner as required by clause 23 (b) and (c) of the Control Order. Thirdly, it has been contended that the bags from which samples were taken, were machine stitched and, therefore, the employees of the firm cannot be solely held responsible and prosecuted under Section 3/7 of Essential Commodities Act ; fourthly, it has been contended that the report has been lodged mala fide against the reputed firm as the earlier attempts made by the Agriculture Department proved futile and the petitioner No. 2 could not be arrested. Earlier a report was lodged on 7.10.1997 but in petition under Section 482, Cr. P.C. (Criminal Misc. Application No. 6508 of 1997) arrest was stayed till submission of charge-sheet ; fifthly, it has been stated that on the basis of another analysis of the sample drawn on 13.11.1997 a report was lodged on 21.12.1997 against the petitioner in connection with which the Manager of the firm was arrested but later on released on bail. Then it has been contend that on the allegations, the petitioners cannot be said to have committed violation of the Control Order. Lastly, it has been stated that regulation 19 (1) read with Section 17 of Essential Commodities Act is violative of Article 21 of the Constitution of India, as the accused has been denied opportunity of re-testing of sample given to the petitioner at the time of inspection. Moreover, this provision has been declared ultra vires by Punjab and Haryana High Court in Tarsen v. Union of India, (1997) 1 ERR 127. In Criminal Misc. Writ Petition No. 1069 of 1998, the first information report sought to be quashed was lodged by District Agriculture Officer, Farrukhabad on 25.1.98 stating that the samples of Nitrogen Phosphate Mahadhan and D.A.P. Ratna taken on 13.11.1997 from the petitioner's godown were found to be non-standard and the petitioner committed offence punishable under Section 3/7, Essential Commodities Act for violation of said Control Order. It has been stated that the fertiliser bags from which samples were taken were machine stitched and, therefore, the petitioner cannot be said to have committed any offence. The samples were not taken in accordance with the procedure laid down in Part 'A' of Schedule II and clause D of the Control Order ; as there were 28 bags of fertiliser stored in the godown samples should have been taken at least from two bags.
(3.) IN Criminal Misc. Writ Petition No. 1135 of 1998, first information report was lodged on 13.2.1998 by Deputy Director, it was alleged that Prasad Urvarak Nigam on analysis was found to be non-standard and thereby the petitioner committed the offence complained. The learned counsel contended that the petitioner had purchased 80 bags of Nitrogen Phosphate manufactured by Rashtriya Chemicals and Fertilisers Limited, Bombay through wholesale dealer M/s. Shyam Sundar Madan Mohan and, therefore, only manufacturer and dealer may be held responsible for deficiency if any. Secondly, it has been stated that the fertiliser bags were machine stitched and, therefore, the petitioner is not liable for the offence. Thirdly, it has been stated that the petitioner was not given any opportunity to get the sample given to him analysed which is violative of Article 21 of the Constitution. Fourthly, it has been stated that the manufacturer who may be liable for the deficiency in the fertiliser has not been implicated in this case. In view of the grounds taken in the petitions and submissions, the following questions arise for consideration : (1) Whether the dealers can be said to have committed violation of the Control Order by selling fertiliser in machine stitched bags and directly received from the manufacturer? (2) Whether only manufacturers are responsible if the fertiliser is found to be non-standard? (3) Whether the first information report is liable to be quashed on account of non-communication of the result? (4) Whether the first information report is liable to be quashed on account of direction given by Senior Officers of the Agriculture Department for reanalysis of the sample? (5) Whether Clause 19 is violative of Article 19 as it gives no opportunity to the accused to get the sample given to him at the time of drawal of sample to be analysed? (6) Whether before launching the prosecution, an opportunity should be given to the dealer to file an application for permission to sell non-standard fertiliser? ;