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Punjab-Haryana High Court
M S Gencrest Bio Products Private ... vs Joint Director Agriculture Haryana And ... on 5 May, 2026
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
114 CWP-10851-2026
Date of Decision: 05.05.2026
M/S GENCREST BIO PRODUCTS PRIVATE LTD. ...Petitioner
Vs.
JOINT DIRECTOR AGRICULTURE HARYANA AND OTHERS
...Respondents
CORAM:- HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. Bhavyadeep Walia, Advocate (through V.C.)
for the petitioner
Mr. Deepak Vashisht, DAG Haryana
(assisted by Mr. Amit, ADO, Agriculture Department)
***
JAGMOHAN BANSAL, J. (ORAL)
1. The petitioner through instant petition under Article 226 of
the Constitution of India is seeking setting aside of order dated
25.02.2026 whereby respondent No.1-Joint Director-cum-Designated
Authority, Agriculture and Farmers Welfare Department, Haryana has
rejected its application filed under Clause 28B(3) of the Fertiliser
[Inorganic, Organic or Mixed] (Control) Order, 1985 (for short '1985
Order') seeking re-analysis of third sample of Fertiliser Zinc Oxide
Suspension Concentrate 39.5% bearing code No. JH/QCI/2025/F-50 (for
short 'Fertiliser'). It is further seeking direction to respondents to send
third sample of fertiliser for re-analysis.
2. The petitioner is a company which is engaged in the business
of manufacturing of fertilisers and chemicals. It is registered with the
Department of Agriculture, Haryana. It was issued certificate on
15.05.2024 by Notified Authority-cum-Director General, Agriculture and
Farmers Welfare Department, Haryana. Respondent No.3-Fertiliser
Inspector, Jhajjar on 12.11.2025 drew sample of fertiliser namely Zinc
Oxide Suspension Concentrate 39.5% bearing batch No. ZOX/25/002 and
Code No. JH/QCI/2025/F-50 from the premises of M/s Bhaichara Kisan
Agro, front of HDFC Bank, Matanhail, Jhajjar. Three sets of the sample
were prepared. One sample was sent for analysis to Senior Analyst,
Quality Control Lab Fertiliser, Karnal on 17.11.2025 vide office letter
No.7996 who vide letter No.909/TR dated 01.12.2025 sent analysis report
observing that the fertiliser is not in accordance with specifications and is
'non-standard'. Respondent No.2-Notified Authority-cum-Deputy
Director, Agriculture and Farmer Welfare Department, Haryana issued
show cause notice dated 19.12.2025 calling upon the petitioner to
produce documents and refrain from selling balance non-standard
fertilizer. The petitioner was granted opportunity to seek retesting within
15 days. As per petitioner, the above-mentioned show cause notice was
served at its manufacturing plant and not at its head office. It submitted
letter dated 16.01.2026 seeking re-analysis of the sample which has been
dismissed by respondent-Authority vide order dated 25.02.2026 on the
ground that it was not submitted within stipulated period i.e. 15 days as
per clause 28B(3) of 1985 Order.
3. Learned State counsel submits that as per Clause 28B(3) of
1985 Order, in case sample is reported as non-standard a dealer or a
manufacturer may apply for retesting within 15 days from the receipt of
test report. The petitioner was sent report vide communication dated
19.12.2025. The petitioner was also sent notice through email on
22.12.2025, thus, was supposed to file appeal within 15 days from
22.12.2025. The petitioner has not further deposited requisite fee.
4. On being asked, learned State counsel points out that
requisite fee is Rs.4,720/-.
5. Learned counsel for the petitioner submits that aforesaid fee
would be deposited within three days from today.
6. Heard the arguments and perused the record.
7. From the perusal of record, it is evident that respondent drew
sample of fertiliser from petitioner's dealer on 12.11.2025. The sample
was drawn in triplicate. One copy was handed over to dealer and another
was kept in the office of respondent. Third copy was sent to State
Laboratory. As per test report dated 17.11.2025, material is 'non-
standard'. The petitioner was sent notice with respect to test report. The
petitioner as per Clause 28B(3) of Fertiliser Control Order could apply
for retesting. The petitioner was supposed to make request for retesting
within 15 days. It was also required to deposit prescribed fee. The
petitioner made request for retesting on 16.01.2026 and its request was
received by respondent on 19.01.2026. As per petitioner, it was unaware
about drawing of sample and test report. Contention of petitioner does
not seem to be appealable, nevertheless, matter deserves to be examined
in the light of factual and legal position.
8. The petitioner was issued notice on 19.12.2025 and it was
sent through post. As per respondent, notice was also sent to petitioner
through email dated 22.12.2025 and it could avail remedy of retesting
within 15 days from 22.12.2025. The petitioner filed request for retesting
on 16.01.2026 and it was received on 19.01.2026. Clause 28B deals with
drawing of samples which reads as:-
"28 B. Sample drawn by the Inspector
(1) Out of the three samples collected by the Fertiliser
Inspectors, one sample shall be given to the dealer or
importer or manufacturer or pool handling agency or
marketer, as the case may be and the second sample
shall be sent to the in-charge of the laboratory notified
under item (b) of sub- clause (1) of clause 29 and the
third sample shall be kept in the custody of designated
authority.
(2) In case the sample shall be drawn by the Fertiliser
Inspector of the Central Government or by the State
Fertiliser Inspector during joint inspection, out of three
samples, one sample shall be given to the dealer or
importer or manufacturer or pool handling agency or
marketer, as the case may be, and the second sample
shall be sent for analysis through the Central Coding
Centre to any of the Regional Fertiliser Quality
Control Laboratory at Chennai, Mumbai or Kalyani
and the third sample shall be kept in the custody of the
In-charge of such Central Coding Centre.
(3) In case the sample is reported as non-standard then
within a period of fifteen days from the receipt of the
report, the dealer or manufacturer or importer or pool
handling agency or marketer, as the case may be, shall
apply to the designated authority appointed by the
State Government under clause 28 A of the said Order
or to the in charge of the Central Coding Centre in
case where the sample is drawn by the Central
fertiliser Inspector for re-testing along with the
prescribed fee and the sample provided to him by the
Fertiliser Inspector.
(4) The designated authority of the State Government or
the in charge Central Coding Centre of the Central
Government, as the case may be, shall immediately
send any of the two samples that is one submitted by
the dealer or manufacturer or pool handling agency or
importer or marketer and other lying in its custody to
the National Test House, Ghaziabad Coding centre for
testing at any of its Centre at Kolkata, Mumbai,
Chennai, Jaipur and Ghaziabad for second analysis.
(5) The report of National Test House shall be treated as
final and in case there is variance in first and second
analysis report that is the sample reported as non-
standard in different parameters, then the designated
authority of state Government or the In-charge of
Coding Centre, as the case may be, shall suo motto
send the sample lying in their possession for third
analysis at Central Fertiliser Quality Control and
Training Institute, Faridabad and the analysis report of
such Institute shall be treated as final:
Provided that in case where the dealer or
manufacturer or pool handling agency, as the case may
be, does not apply within the stipulated period of fifteen
days under sub-clause (3) of clause 28B, then the
report of first analysis shall be final:
Provided further that in case where the sample
reports that is first analysis report and second analysis
report are declared as nonstandard in a common
parameter, in such case, there shall not any third
analysis and the report of the second analysis shall be
treated as final."
[Emphasis supplied]
9. From the perusal of sub-clause (3) of aforesaid clause, it is
evident that a dealer or manufacturer within 15 days from the receipt of
adverse report may apply to the designated authority for retesting. As per
respondent, 15 days period prescribed under said clause is sacrosanct and
mandatory. It cannot be varied. Stand of respondent does not seem to be
plausible. Claim of the respondent that 15 days period prescribed in the
sub-clause (3) is mandatory is based upon expression "shall" used in the
said clause. A plain reading of the said Clause, in the manner as
suggested by respondents, reveals that in case sample is reported as non-
standard, dealer or manufacturer or importer is bound to apply for
retesting. The expression "shall" is not followed by "within a period of
15 days" whereas "shall" is followed by "apply to designated authority".
It cannot be intention of the Legislature. Right to file appeal or apply for
retesting is absolute discretion of the aggrieved party, thus, Legislature in
every enactment has prescribed limitation period, however, expression
"may" has been used. This may be understood with the help of Clause
32A. As per said Clause, any person feeling aggrieved from order or
action of registering authority may file appeal within 30 days. Clause
32A reads as:-
"32A. Appeal at the State Government level
(1) The State Government shall, by notification in the
Official Gazette, specify such authority as the Appellate
Authority before whom the appeals may be filed within 30
days from the date of the order appealed against by any
person, except by an industrial dealer, aggrieved by any of
the following Orders or action of registering authority or a
Notified Authority, namely:-
(i) refusing to grant a certificate of manufacture for
preparation of mixture of fertilisers or special mixture
of fertilizers; or
(ii) suspending or cancelling a certificate of manufacture;
or
(iii) suspending or cancelling authorization letter or
debarring from carrying on the business of selling of
fertilizer; or
(iv) non-issuance of [xxx] certificate of manufacture within
the stipulated period; or
(v) non-issuance of amendment in authorisation letter
within the stipulated period."
In the backdrop, Clause 28B(3) cannot read in the manner as
suggested by respondents. It is settled law that expression "shall" in
appropriate circumstances and having regard to the context, may be read
as directory instead of mandatory.
The provision further deserves to be interpreted in the light
of facts and circumstances of the case. Retesting is a substantive-cum-
procedural provision. It is substantive because it creates right in favour
of dealer/manufacturer to seek retesting in case test report is found
adverse. It is procedural because it prescribes authority to whom
application has to be filed and the period within which application should
be filed. The adverse report entails prosecution. Criminal liability stems
from adverse report, thus, dealer must be given full reasonable
opportunity to put forth his stand. To avoid possibility of mis-reporting
and dispel doubt, dealer/manufacturer has been granted opportunity to
seek retesting. The said right ought not to be curtailed on the ground of
delay and that too of few days. The limitation period prescribed in the
said clause needs to be interpreted liberally. In the present case,
petitioner within less than 30 days from the date of receipt of test report
applied for retesting. Delay, if any, was not more than 15 days. The said
period of delay should not be made basis to curtail vested right of the
dealer/manufacturer to seek retesting especially when first report is
creating civil as well as criminal liability.
Needless to mention here that this Court has not held that
dealer/manufacturer under Clause 28B(3) may apply for retesting at any
point of time.
10. In the wake of above discussion and findings, this Court is of
the considered opinion that impugned order (Annexure P-6) deserves to
be set aside and accordingly set aside. The respondents are directed to
send available sample for retesting. The petitioner shall deposit requisite
fee within three days from today. The authorities would not proceed
against petitioner without receipt of retesting report. The petitioner shall
not sell balance stock of batch in question till the receipt of fresh report or
30.06.2026 whichever is earlier.
11. Allowed in above terms.
12. Pending application(s), if any, stands disposed of.
(JAGMOHAN BANSAL)
JUDGE
May 05, 2026
Deepak DPA
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
