DIWAN CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Present appeal has been filed challenging the judgment of conviction dtd. 23/9/2004, vide which the appellant was held guilty of offence punishable under Sec. 7(1)(a)(ii) read with Sec. 10 of the Essential Commodities Act, 1955 (for short 'Act of 1955') and the order of sentence of even date, vide which the appellant was sentenced to undergo R.I. for a period of one year with a fine of Rs.2,000.00 and in default of payment of fine, to further undergo R.I. for three months.

(2.) Brief facts of the case are that PW5 Kundal Lal, the then Joint Director, Agriculture, Punjab, being Chief Agricultural Officer, Hoshiarpur, was authorized to institute the complaint under the Act of 1955 as per notification dtd. 10/7/1991 issued by the Department of Food and Supplies, Govt. of Punjab (Ex.PJ). The fertilizer was declared essential commodity by the Govt. of India vide notification dtd. 29/3/1957. M/s The Hoshiarpur Cooperative Marketing Society Limited (hereinafter referred to as 'Society') is the licensed dealer vide certificate of dealership Ex.PH issued under Fertilizer Control Order, 1985 (for short 'Control Order, 1985'), which was renewed upto 21/7/1999 vide document Ex.PJ, containing the list of the authorized manufacturing concern, from whom the Society could purchase the fertilizer. Gurmukh Singh, Manager of the Society, who is accused No.1 in this case, had furnished an affidavit Ex.PK to abide by the rules and regulations of the Control Order, 1985 and the Act of 1955 and the same was duly attested by the Notary Public on 5/8/1996. One of the authorized manufacturer is IFFCO, from which the dealer purchased Urea, DAP and NPK fertilizer as per Sr. No.5 of the list Ex.PJ. Vide notification Ex.PF dtd. 30/7/1986 published in the Punjab Govt. Gazette, various officers of the Agriculture Department were notified as the Fertilizer Inspectors, competent to draw the sample from various dealers/manufacturers/pool handling agencies. Agriculture Inspectors were included within the list of the competent officers, notified as Fertilizer Inspectors. Subsequently, the designation of Agriculture Inspectors was changed to Agricultural Development Officers (ADOs) as competent Fertilizer Inspectors vide notification dtd. 5/8/1991 Ex.PG, in the State Govt. Gazette.

(3.) On 26/8/1996, Sh. B.K. Mehta, Fertilizer Inspector along with Sh. Ashok Kumar, Agricultural Development Officer (Enforcement), Hoshiarpur visited the premises of the Society for the purpose of taking sample of Dia-Ammonium Phosphate 18:46 (DAP) manufactured by IFFCO Kandla Gujarat. Accused No.1 was present in the shop of the Society and was served with a notice Ex.PA by Sh. B.K. Mehta, Fertilizer Inspector, of his intention to draw the sample. This notice was signed by accused No.1. There were 354 bags of DAP, each containing 50 kgs of DAP, IFFCO brand, lying in the stock of the Society, which was considered a lot and four bags were selected at random as per table at page No.41 of the Control Order, 1985. All the bags were of the same brand, which were stored, arranged and kept systematically in rows. The sample was taken by use of clean and dry sampling probe, made of brass, by inserting probe in all these four selected bags, diagonally, from one corner to another. Four of five kilograms of fertilizer was drawn from the four bags and the same was spread on clean and dry polythene sheet on a hard surface. The contents were thoroughly mixed with the hard paper and made homogeneous. It was divided into four equal parts. Two diagonally opposite parts were removed and the process was repeated till the composite remained about 1.5 kgs. This was divided into three equal parts, each weighing 400 grams. Each part was immediately transferred in the clean, dry and thick gauged polythene bags. Each test sample prepared was further put in the dry empty cloth bags, along with Form 'J', five copies of which were signed by him and accused No.1. One copy each, of Form 'J' was put in three bags, along with polythene bags containing fertilizer and each sample bag was made air-tight with thread. Each part was then sealed with the seal of the Fertilize Inspector. He also prepared two Forms 'K' duly filled, which were completed in the presence of accused No.1 and other members of the raiding party. On each test sample, the identification marks i.e. name of the fertilizer, brand and date of sampling was mentioned. One part of the sealed test sample was handed over to accused No.1, who acknowledged it on Form 'J' and the second test sample along with Form 'K' was deposited in the office of Quality Control Laboratory, Ludhiana vide letter of Chief Agricultural Officer dtd. 29/8/1996 and the third sample was deposited along with Form 'K' in the office of Chief Agricultural Officer, Hoshiarpur. The analysis report found the contents of the sample fertilizer to be non-standard vide report dtd. 17/9/1996. A show cause notice dtd. 25/10/1996 was served upon the Society by the Chief Agricultural Officer along with copy of the report dtd. 17/9/1996. Accused No.2 has been impleaded because he had been appointed as person responsible for the quality and production of the fertilizer being Chief Manager (Production) by the manufacturing concern and thus, he violated the provisions of Clause 19(1)(a) and Clause 2(h)(q) of the Control Order, 1985 issued under Sec. 3 of the Act of 1955, which is punishable under Sec. 7 thereof and there is similar violation by the dealer for possessing non-standard fertilizer. Initially, the Field Officer, IFFCO, Hoshiarpur was also impleaded as accused but on account of his death, proceedings against him were abated.