- (1.) J. C. Mishra, J. These petitions have been filed by the accused for a writ in the nature of the certiorari for quashing the First Information Report dated 28-2-98 in Crime No. 10 of 1998 under Section 3/7 Essential' Commodities Act PS, Belghat, district Gorakhpur.
(2.) THE prosecution case as contained in the impugned F. I. R. is that Deputy Divisional Agriculture Development Of ficer, Khajui, district Gorakhpur, respon dent No. 3, on 30-11-97 inspected the fer tilizer shops of M/s. Gupta Khad Bhandar, Bazar Lakhhura, Pakad Shankerpur and M/s. Janata Khad Bhandar, Kuti Bazar and took samples of D. A. P. and single super phosphate fertilizers. Vishwakarma, petitioner of Criminal Misc. Writ Petition No. 780 of 1998 is proprietor of M/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 for violation of Fertilizer Con trol 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 bag fer tilizer in the godown of Janata Khad Bhan dar Kutibazar. The petitioners appended their signature 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. The petitioners have filed these petitions for quashing the First informa tion 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 con tended that the bags were found stitched and sealed and, therefore, only the manufacturer is liable. The First Informa tion Report was lodged in violation of sub-Section (5) of Section 3 of the E. C. Act and Order XXXVII of the Fertilizer Con trol Orders. It has also been contended that result of the analysis was not com municated in accordance of 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.
(3.) HEARD Sri Rahul Sripat, learned Counsel for the petitioners and learned A. G. A. The first question that arises for consideration is whether the dealer can be held guilty for sale, stock or offer for sale or exhibit for sale of non-standard fertilizer. Clause 19 of Fertilizer (Control) Order, 1985 provides that no person shall himself or by any other person on his behalf manufacture for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertiliser or mixture of fertilisers which is not of prescribed standard. Sub-clause (c) provides that no person shall sell, offer for sale, stock or exhibit for sale or distribute any fertiliser the container whereof is not packed and marked in the manner laid down in this Order. Clause 21 provides that any container in which any fertilizer is packed shall bear only such particulars and nothing else as may, from time to time, be specified by the Controller in this behalf; and every container shall be so packed and sealed that the contents thereof cannot be tampered with without breaking the seal. It is provided that where fertiliser manufactured in India are packed in bags stitched by hand, such bags shall bear lead seals, so that the contents thereof cannot be tampered with without breaking the seals. However, lead sealing shall not be necessary if the bags are machine stitched or in case of fertilisers imported from abroad and packed in bags stitched by hand in such a manner that the contents thereof cannot be tampered with without visible break in the stitching.;