KHAGESH KUMAR GOEL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) These three Revision petitions arise out of three different cases against the present petitioner. As they raise common questions of law, they have been heard together and are being disposed of by this common order.

(2.) The facts on the basis of which the petitioner has been prosecuted under Section 3 r/w Section 7 of the Essential Commodities Act and violation of Section 19 of the Fertilizer Control Order 1985, in the aforesaid three different cases are also more or less similar.

(3.) It is alleged that Raghuveer Saran Gupta non-petitioner No. 2 was proprieter of M/s. Raghuveer Saran. Arun Kumar, a dealer in fertilizers at Dinara (326/96) Satish Kumar Jain, non-petitioner No. 2 was proprieter of M/s. Vivek Traders, a dealer of fertilizers at Pohri (327/96) Hukum Chand Nagaria, non-petitioner No. 2 was proprieter of M/s. Jwala Prasad Hukum Chand, a dealer in fertilizers at Sirsaud (328/96). There was a stock of Vishwas Brand Single Super Phosphate (In short SSP) with the said proprieters and sample was taken on different dates in the aforesid three cases and it was sent to the fertilizer analyst for examination. A report dated 4-9-1995 was received and according to the report sample was found sub-standard to the extent mentioned in the report. In all the three cases it was mentioned in the report that the fertilizer was purchased from the firms mentioned therein. The allegation made against the petitioner was that he was the manufacturer of Vishwas Brand Single Super Phosphate (SSP) which was a company known as Shriniwas Fertilizers Ltd. Jhansi (U.P.). The petitioner claimed that there was, however, no mention of the procedure adopted by the complainant in taking sample. There was no allegation about the business relationship between the said firms and the petitioner. The said firms are not agent of the petitioner. The shops from which the sample was received did not belong to Shriniwas Fertilizers Ltd. Jhansi (U.P.) M/s. Shrinivas Fertilizers Ltd. had no sale depot in M.P. or at Shivpuri. There is no allegation in the F.I.R. that the sample was taken from the bags which were owned by M/s. Shrinivas Fertilizers Ltd. even if it was found that the fertilizer in question was the same which was manufactured by M/s. Shriniwas Fertilizers Ltd. Jhansi (U.P.) There was no allegation to support the allegation that sample was taken from the bags which were in the ownership of the M/s. Shriniwas Fertilizers Ltd. There is also nothing to show that the said firms had obtain any warranty from M/s. Shriniwas Fertilizers Ltd. or that the goods were kept intact in the same condition in which they were purchased. Procedure for taking sample had been laid down in Schedule II of the Fertilizer Control Order 1985 and the provisions are mandatory. Nothing has been shown that the procedure was actually followed. Unless it is specifically alleged that the petitioner was the owner he could not be proceeded with under the Essential Commodities Act. There could not be a joint trial under the provisions of Essential Commodities Act of the alleged manufacturer or Vendor or distributor. They can only be tried if allegations are made that they have connecting links between them so as to constitute the same transaction. This link is absolutely missing in the case. The petitioner before the lower Court contested this point at the time of framing the charge. But the lower Court repelled the contentions and framed the charge and hence the present petitions.