DIRECTOR AGRICULTURE Vs. GURMUKH MAL SHIBBA MAL

JUDGEMENT

(1.) Challenge in this set of cases (LPA No. 1039 of 1996 and C.W.P. Nos. 5175 5176 and 6771 of 1996) is to the judgment of Shri R.L. Anand, J. dated 16.9.1996 declaring the notification No. G.S.R. 758(E) dated 25.9.1985 issued under Section 3(1) of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act) to be violative of Articles 19 and 21 of the Constitution of India, thus, striking it down, consequently quashing the proceedings launched for the prosecution of petitioners.

(2.) Learned Single Judge made reference to facts in C.W.P. No. 5643 of 1995. As per the case of the petitioner in the aforesaid writ petition a sample of DAP Fertilizer was drawn by the respondents-the authorities from the premises known as IFFCO Service Centre, Zira on 5.9.1990. This sample was sent to Fertilizer Quality Control Laboratory, Ludhiana vide order dated 7.9.1990 and as per Laboratory analysis the same was found to be non-standard grade. As per narration of facts in the aforesaid writ petition at the time of drawing of sample three samples tests were prepared. One such sample was given to the petitioner and another remained in the custody of respondent No.4 and the third sample was sent to the Laboratory. As per the report of the analysist the sample sent was found to be of non-standard grade. Chief Agricultural Officer vide communication dated 20.4.1995 apprised the petitioner of the violation of Fertilizer Control Order, 1985 (hereinafter referred to as 'Control Order1) read with provisions of the Act. Vide aforesaid communication it was brought to the notice of the petitioner that he has contravened the provisions of Section 19(l)(a) of the Control Order by selling sub-standard fertilizer to the farmers and so was asked to appear in person on 5.5.1995 or to submit his explanation in writing as to why legal action be not taken against him. Petitioner's reply to the aforesaid communication was not found satisfactory by the authorities and so licensing authority cancelled his licence giving 30 days time to dispose of the stock lying with him (annexure P-4). A complaint was also lodged to Senior Superintendent of Police for registering of the case against the petitioner under Section 7 of the Act read with Clause 19(1) of the Control Order. F.I.R. No. 53 dated 7.4.1993 was stated to have been registered. Petitioner assailed the Control order on the ground that the same is violative of Articles 19 and 21 of the Constitution of India as the existing prescribed procedure deprives him of an opportunity of getting the sample examined from another Laboratory.

(3.) Respondents in their written statement defended the action initiated stating that the Control order is perfectly legal and does not suffer from the vice of Unconstitutionally, as alleged. According to the answering respondents the Control Order has been promulgated by the Central Government in Exercise of its powers under Section 3(1) of the Act. Fertilizer has been declared to be an essential commodity by the Central Government under Section 2(a)(xi) of the Act. As it has been declared to be an essential commodity, government is empowered to issue Rules/Regulations/Orders for regulating or prohibiting its production, supply and distribution. The petitioner having been found to be in possession of sub-standard fertilizer the action initiated by the authorities is according to law. Present petition has been filed to delay the proceedings. Otherwise too, writ petition is legally not maintainable as all these defences could be set up by the petitioner during the trial of the case.