Rajasthan High Court - Jodhpur

M/S Chittari Agricare Pvt. Ltd vs State Of Rajasthan on 12 July, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 5608/2021

M/s Chittari Agricare Pvt. Ltd., 1857/a, 5Th Main, R.p.c. Layout, Vijaynagar, Bangalore, Karnataka Through Its Area Sales Manager - Satbir Singh, Aged About 44 Years, S/o Sh. Sher Singh Desi.

----Petitioner Versus State Of Rajasthan, Through Agriculture Office (P.p.) - Cum

- Fertilizer Inspector, Office Of Deputy Director Of Agriculture (Ext.) , Sri Ganganagar.

----Respondent Connected With S.B. Criminal Misc(Pet.) No. 5606/2021 M/s Chittari Agricare Pvt. Ltd., 1857/a, 5Th Main, R.p.c. Layout, Vijaynagar, Bangalore, Karnataka Through Its Area Sales Manager- Satbir Singh, Aged About 44 Years, S/o Sh. Sher Singh Desi.

----Petitioner Versus State Of Rajasthan, Through Agriculture Office (P.p.)-Cum- Fertilizer Inspector, Office Of Deputy Director Of Agriculture (Ext.), Sri Ganganagar.

----Respondent

For Petitioner(s) : Mr. Rakesh Verma (on VC) For Respondent(s) : Mr. Aniruddh Purohit, AGA

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

12/07/2022

Learned counsel for the petitioner has preferred this

petition with the following prayer:-

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"In the wake of above submissions, it is respectfully prayed that this petition may kindly be allowed and the present impugned Complaint No.283/03 dated 24.09.2003 u/s 3 & 7 of Essential Commodities Act, 1955 read with the provisions of Clause 19 of the Fertilizer Control Order, 1985 titled as "State Vs. M/s Chittari Agricare Pvt. Ltd. and Others" as pending adjudication in the Court of Ld. CJM, Sri Ganganagar at Annexure P-1, Summoning Order dated 24.09.2003 at Annexure P-2, Order dated 06.02.2017, as passed by Ld. CJM, Sri Ganganagar at Annexure P-3 and all consequential proceedings arising there from qua the Petitioner-Company may kindly be quashed by this Hon'ble Court.

It is further prayed that further proceedings pending in the present Complaint case in the Court of Ld. CJM, Sri Ganganagar may kindly be stayed till the final decision of the present petition by this Hon'ble Court."

Prayer made in S.B. Crl. Misc. Petition No.5606/2021 is as under:-

"In the wake of above submissions, it is respectfully prayed that this petition may kindly be allowed and the present impugned Complaint No.282/03 dated 24.09.2003 u/s 3 & 7 of Essential Commodities Act, 1955 read with the provisions of Clause 19 of the Fertilizer Control Order, 1985 titled as "State Vs. M/s Verma Agro Agency & Ors." as pending adjudication in the Court of Ld. CJM, Sri Ganganagar at Annexure P-1, Summoning Order dated 24.09.2003 at Annexure P-2, Order dated 06.02.2017, as passed by Ld. CJM, Sri Ganganagar at Annexure P-3 and all consequential proceedings arising there from qua the Petitioner- Company may kindly be quashed by this Hon'ble Court.

Learned counsel for the petitioner submits that the

present case arises out of a complaint made on 18.10.2000,

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whereby one Fertilizer Inspector drew a sample of one

fertilizer namely Zinc EDTA Nutriment Brand from the depot of

the company situated at Sri Ganganagar.

The precise submission of the counsel for the petitioner

is that Fertilizer Control Order 1985 is invoked as issued

under Section 3 of the Essential Commodities Act, 1955 and

such order stipulated mandatory procedure to be followed by

Fertilizer Inspector.

Learned counsel for the petitioner has drawn attention of

this Court to the Schedule (II) of para A of Fertilizer Control

Order, 1985, the relevant provisions of which are as follows:-

Part-A

PROCEDURE FOR DRAWAL OF SAMPLES OF FERTILIZERS

1. General requirement of sampling:

In drawing samples, the following measures and precautions

should be observed.

(a) Samples shall not be taken at a place exposed to

rain/sun;

(b) The sampling instruments shall be clean and dry when

used;

and the bags of samples should be free from any adventitious

contaminations;

(d) To draw a representative sample, the contents of each

bag selected for sampling should be mixed as thoroughly as

possible by suitable means;

(e) The sample should be kept in suitable, clean dry and air

tight glass or screwed hard polythene bottle of about 400 gm

capacity or in a thick gauged polythene bag. This should be

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put in a cloth bag which may be sealed with the Inspector's

seal after putting inside the detailed description as specified

in Form "J" Identifiable details may also be put on the cloth

bag like sample No./Code No. or any other details which

enables its identification;

(f) Each sample bag should be sealed air tight after filling

and marked with details of sample, type and brand of

fertilizer, name of dealer/manufacturer/importer and the

name of Inspector who has collected sample.

2. Sampling from bagged material:

(i) Scale of sampling

(a) Lot (for manufacturers/importers)

All bags in a single consignment of the material of the same

grade and type drawn from a single batch of the

manufacturer/importer shall constitute a lot. If a consignment

is declared to consist of different batches of

manufacturer/import, all the bags of each batch shall

constitute a separate lot. In the case of a consignment drawn

from a continuous process, 2000 bags (or 100 tones) of the

material shall constitute a lot.

(b) Lot (for dealers):

The lot is an identifiable quantity of same grade and type of

fertilizer stored at an identifiable place subject to a maximum

limit of 100 tones. The lot shall be identified by the inspector

based on visible appearance of bags, their packing and

storage conditions. The stock of less than 100 tones with a

dealer may also constitute one or more lots, if the material

(fertilizer) or different sources and brand is available in such

quantities.

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The number of bags to be chosen from a lot shall depend

upon the size of the lot as given in the table below.

Lot size (No. of bags) (N) No. of bags to be selected for sampling (n)

All the bags of a lot should be arranged in a systematic

manner. Start counting from any bag randomly, go on

counting as 1,2,3,- up to r and so on, r being equal to the

integral of N/n. Thus every rth bag counted shall be

withdrawn and all bags shall constitute the sample bags from

where the sample is to be drawn for preparing a composite

sample.

(ii) Sampling from big godowns/high stackings:

If the procedure given in para 2(i) (c) is not possible to be

adopted, the sample should be drawn from the randomly

selected fertilizer bags from different layers, from top and

from all open side in a zig fashion.

(iii) Sampling from small godowns:

All the fertilizer bags of the same grade and type of each

manufacturer though received on different dates shall be

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segregated and properly stacked. All bags of same grade and

type of fertilizer manufactured by a particular manufacturing

unit may be considered as one lot based on their physical

conditions and the sample shall be drawn as per procedure

laid in Para 2(i) (c) and 4.

(iv) Sampling from damaged stock:

(a) In case of torn or lumpy bags, damaged fertilizer bags or

sweepings, the stock should be arranged according to

identifiable lots. From each lot the number of bags shall be

selected as per procedure 2(i)(c). If the bags allow the use of

sampling probe conveniently, the sample should be drawn by

sampling probe.

(b) In case it is not possible to use the sampling probe, the

bags may be opened and fertilizer material mixed together

uniformly by hammering the big lumps or putting pressure, if

require and then samples drawn by using suitable sample

device.

3. Sampling probe:

(i) An appropriate sampling instrument to be used by the

Inspectors for collection of a representative sample is called

sampling probe. The probe may comprise of a slotted single

tube with soil cone tip made of stainless steel or brass. The

length of the probe may be approximately 60 to 65 cms and

the diameter of the tube may be approximately 1.5 cm and

the slot width 1.2 to 1.3 cms. The probe may be use if the

physical condition of the fertilizers and the packing material

permits it use.

(ii) In case of High Density Polythylene packing and also

when the fertilizer material is not in free flowing condition,

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the use of sampling probe may not be possible. In such a

case, selected bags for drawing samples may be opened and

the fertilizers may be taken out of the bags and spread on a

clean surface and samples drawn with the help of a suitable

Sampling device which may be made of stainless steel or

brass cup.

4. Drawal of samples from bags:

(i) Drawal of sample and preparation of composite samples.

Draw, with an appropriate sampling instrument, (sampling

probe) small portions of the material from the selected bags

as per procedure in para 2(i) (b) 2(ii) 2(iii) and 2 (iv) (a). The

sampling probe shall be inserted in the bag from one corner

to another diagonally and when filled with fertilizer, the probe

is withdrawn and fertilizer is emptied in a container/or on

polythene sheet/or on a clean hard surface and made into

one composite sample.

(ii) If the bags do not permit the use of sampling probe,

empty the contents of the bags on a level, clean and hard

surface and draw a composite sample by the process of

quartering as described under para 3 (ii) or 5.+ (iii) In case

of chelated micro-nutrients and mixtures of micro-nutrients,

the three identical containers of the batch, grade, type and

manufacturer, shall be selected which shall constitute the

composite samples, provided it is not possible to draw a

composite sample of the size given under para 4A (iii).

4A. Weight of one sample.

One sample of fertilizer shall have the approximate weight, as

specified below:-

(i) For straight micro-nutrient fertilizers- 100 gms.

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(ii) For chelated micro-nutrient fertilizers and 50gms or

mixtures of micro-nutrients the maximum packing size of

similar quantity

(iii) For other fertilizer and mixtures of fertilizers 400 gms.

5. Preparation of composite sample.

If the composite sample collected from the different selected

bags is large then required weight, its size shall be reduced

by method of quartering as detailed below:-

Spread the composite sample on a level, clean, hard surface,

flatten it out and divide it into four equal parts. Remove any

diagonally opposite parts. Mix the tow remaining parts

together to form a cone, flatten out the cone and repeat the

operation of quartering till a composite sample of required

weight is obtained.

6. Preparation of test sample and reference sample.

(i) The composite sample obtained above shall be spread out

on a clean, hard surface and divided into three approximately

equal proportions + each of the weight as specified in Para

4A. Each of these samples shall constitute the test sample.

(ii) Each test sample shall be immediately transferred to a

suitable container as defined under para 1(e). The slip with

detailed description may be put inside the sample bad. Each

bag shall also be properly labeled as mentioned in Para 1(f)

(iii) Each test sample container shall then be sealed with the

seals of the inspector. If possible, seal of the

manufacturer/importer/dealer or purchaser as the case may

be, may also be affixed.

(iv) One sample so sealed shall be sent to the Incharge of the

Laboratory notified by the State Government under clause 29

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or Central Fertilizer Quality Control and Training institure,

Faridabad * or Regional Fertilizer Control Laboratories at

Bombay, Madras or Kalyani (Calcutta) for analysis and the

second give to the manufacturer or importer or dealer or the

purchaser as the case may be. The third sample shall

constitute the reference sample and shall be sent by the

inspector to his next higher authority for keeping in safe

custody for production in court, if required."

Learned counsel for the petitioner has relied upon the

judgment of this Court passed in Ms. Chittari Agricare Pvt.

Ltd. V/s State of Rajasthan reported in 2015 (1) RCR

(Criminal) 929. The relevant portion of the judgment reads

as follows:-

"11. From a bare look at the contents of the complaint and the seizure memo, it is evident that the inspector whilst drawing the samples made a bald mention therein that the samples were drawn as per law.

12. When the law prescribes that a particular act has to be done in a particular manner, it goes as a corollary that the mode of performing such act should be reflected - in the corresponding documents so as to instill confidence and sanctity in the proceedings and for maintaining fairness. This Court in the case of Chandra Prakash (supra) was dealing with an identical situation. In the aforesaid case, this Court observed that a mere mention in the complaint and the inspection memo that the mandatory procedure as provided in the Schedule was followed would not suffice. It has to be mentioned and elaborated in the seizure memo that the detailed procedure of drawl of samples prescribed in the Schedule was followed. The precise steps taken by the Inspector to draw the samples have to be reproduced in the inspection note so as to reflect subjectively that the procedure as duly followed. When the issue regarding the mandatory provisions being followed is examined by the court, the prosecution would only have the inspection memo and the complaint to fall upon in order to establish compliance. In order to satisfy the court that the due procedure was followed, the procedure obviously has to be reflected in these documents."

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Learned Public Prosecutor opposes the petition, but is

unable to refute the controversy being squarely covered by

the judgment of this Court in the matter of M/s Chittari

Agricare (supra). Learned court below had merely

rejected the application on the ground of lack of power to

quash the proceedings.

This Court upon perusal of the record and finding that

the controversy is no more res-integra and as covered by the

judgment of M/s Chittari Agricare (supra) is inclined to allow

the present petition.