K.S. Tiwana, J. - (1.) THIS revision by the Punjab State has been directed against the discharge of the Respondents for an offences under Section 7/13 of the Essential Commodities Act read with Clause 13(l)(a)(vi) at the Fertilizer (Control) Order, 1957.
(2.) THE facts of the case which led to the filing of this revision are that on 17th of September, 974, Fertilizer Inspector of Amritsar went to the business premises of the Respondents and found 87 bags of fertilizer known as Superphosphate single' lying stacked there for sale. The Fertilizer Inspector took out simple from the containers of the fertilizer and divided it into three equal parts One part was entrusted to the Respondents, the other was retained by him and the third was sent to the Quality Control Laboratory (Fertilizers) Department of Agriculture , Punjab. Ludhiana, for analysis (sic), where it was received on 18th of September 1974. The officer Incharge of the laboratory, who tested the sample of the superphosphate found water soluble phosphite has P2) c5(sic) as 1912 per cent in place of the required percentage of 16 percent. The permissible tolerance variation of the plant nutrient for This category of the fertilizer is U I per cent The sample was thus short in water soluble superphosphate single' (as p3 c5)(sic) by 00(sic) 88 per cent in the basis of this data, case for violation of Section 7/13 of the Essential Commodities Act was registered and the Respondents were prosecuted in the court of the Chief judicial Magistrate, Amritsar A objection was taken before the learned Chief Judicial Magistrate on behalf of the Respondents that the requisite quantity as provided in Rule 4 of the Schedule II of the Fertilizer (Control) Order, 1957 (hereinafter referred as the Rules) was not taken by the Fertilizer Inspector and on that ground there was a violation of the statutory provisions. It is worth noticing that in the report of the laboratory the weight of the sample which was received there for analysis has not been noted The learned Chief Judicial Magistrate frected the Respondents to produce their sample and also the Fertilizer Inspector to produce the sample retained by him On production both the samples were weighed in Court. The sample entrusted to the Respondents came out to be 36o grams in weight and the sample retained by the Fertiliser inspector came to be 300 grams in weight As all the Three samples obtained under the Rules are required to be of uniform weight, the learned Chief judicial Magistrate concluded that the sample sent to the laboratory must have been also of less weight than 0 -5 Kilograms as provided in Rule 4 in Schedule II Following the judgment reported in Rajaldes, G Pamnani v. State of Maharashtra : A.I.R. 1975 S. C. 189, wherein the violation of Rule 22 of the Prevention of Food Adulteration Rules was made regarding the weight of the sample, the learned Chief Judicial Magistrate discharged the Respondent. Feeling dissatisfied (sic) with this order the Punjab State has come to this Court in revision
(3.) ON behalf of the State it was argued that, A l.R. 1975 S.C. 189 case (supra) decided by the Supreme Court has been over ruled in State of Kerala etc v. Alasserry Mohammad etc, (1978) 5 Cr. L. T. 204 and on that ground the very basis of the order of discharge of the learned Chief Judicial Magistrate has slipped from under the feet of the Respondents and that the order of discharge requires to be set aside -;