IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.4577 OF 2013 BETWEEN:
SRI S A JAYANARAYANA AGED ABOUT 45 YEARS, S/O ASHWATHANARAYANA SETTY, PROPRIETOR, M/S. S.CHALUMAIAH SETTY & SONS, DEALERS IN FERTILIZERS, N.H.4, SIRA 572137, DIST: TUMKUR ... PETITIONER (BY SRI: S P KULKARNI, ADVOCATE) AND THE STATE OF KARNATAKA REPTD. BY ASST. AGRICULTURAL OFFICER AND FERTILIZER INSPECTOR, SIRA, TUMKUR DISTRICT, NOW REPTD. BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BUILDING, BENGALURU-560001.
... RESPONDENT (BY SRI: VIJAYA KUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.242/13 (PCR NO.29/13) ON THE FILE OF THE C.J. & JMFC., SIRA, TUMKUR, BEING BARRED BY TIME, NOT MAINTAINABLE AND BEING ABUSE OF PROCESS OF COURT IN SO FAR AS THE PETITIONER HEREIN IS CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is a dealer in fertilizers. On 20.06.2011 at 11 am, shop of the petitioner was inspected and samples of DAP Jaikisan fertilizer was drawn for the purpose of testing under clause [1][b] of Fertiliser [Control] Order, 1985, [‘the Order’ for short]. The collected samples was sent to the Public Analyst at Bengaluru and it was ascertained that samples drawn from shop of the petitioner was not in accordance with the specification. At the request of the petitioner, second sample was sent again for analysis on 5.8.2011 and result of the report also indicated that sample was not in accordance with the specifications under the Order. In this circumstances, complaint was lodged against the petitioner for contravention of Clause 19 of the Control Order. The learned Magistrate, by order dated 20.04.2013, directed registration of the case and issued summons to the petitioner. At that stage, petitioner has approached this Court seeking to quash the entire proceedings in C.C. No.242/2013 pending on the file of Civil Judge and JMFC, Sira.
2. Heard learned counsel for the petitioner and learned Additional SPP for respondent-State.
3. Learned counsel for the petitioner has raised the following contentions:
[i] Two reports obtained from two Lab Analysts are contrary to each other, both on quality and the subject of analysis. In the first Analysis report issued by the Deputy Director of Agriculture, FCL, Bengaluru, variation in neutral ammonium citrate soluble phosphates was 0.92 whereas in the analysis conducted by the Agricultural Officer, Fertilizer Control Laboratory, Villupuram, Tamil Nadu, the variation in the neutral ammonium citrate soluble phosphate was [-]1.90. These discrepancies render both reports unreliable and therefore based on the said reports, prosecution could not have been launched against the petitioner.
[ii] Secondly, even assuming that the samples examined by respective Analysts were found not according to specifications, yet the variations noted by the Analysts were within permissible limits. The sample was drawn out of huge quantity of more than 300 bags. These discrepancies being insignificant and within tolerable limits, there was no basis for the respondent to initiate criminal prosecution against the petitioner.
[iii] Thirdly, placing reliance on the decision of this Court in ‘STATE OF KARNATAKA v. K.H. NAGARAJU AND OTHERS’ reported in 2012 [4] KCCR 3361, and with reference to Clause 8 of the Order, it is contended that Respondent No.2 has failed to follow the procedure prescribed under the Order while drawing the samples of fertilizers. As per Schedule-
II of the Order, samples drawn should have been kept in suitable, clean, dry and airtight glass or screwed hard polythene bottle. But, in the instant case, the records produced by the respondent indicate that samples were packed in a plastic bag contrary to the procedure prescribed in Schedule-II. In view of the violations of these procedures, ultimate results procured by the respondent could not have been relied on to launch prosecution against the petitioner.
[iv] Next, it is contended that in view of specific provisions contained in section 10 of the Act, the alleged contraventions having been committed by the company, without making company as accused, prosecution of the petitioner who is a mere dealer of fertilizers is legally untenable and opposed to provisions of section 10 of the Act. In support of this contention, learned counsel has placed reliance on the following decisions:
[a] ‘SHAM SUNDER BASSI v. STATE OF PUNJAB’ in Crl. Misc. No.6744-M/1987 DD 8.5.1991 – High Court of P & H.
[b] ‘STATE OF MAHARASTRA v. ANILKUMAR JINABHAI PATEL AND OTHERS’ in Crl. W.P.
81/2003 dd 15.1.2010 - High Court of Bombay [c] ‘B.S. RAVISHANKAR v. INSPECTOR OF FERTILISERS’ in Crl. P. No.979/2004, DD – 4.3.2008 – High Court of Karnataka, Bengaluru [d] ‘R.V. KUMSUMBEKAR v. STATE OF KARNATAKA’ in Crl. P. No.200785/2014 – DD 12.9.2014 – High Court of Karnataka, Bengaluru.
[e] ‘STATE OF MADRAS v. C.V. PAREKH’ reported in AIR 1971 SC 447.
[v] Finally, it is argued that the learned Magistrate has failed to apply his mind to the facts of the case and has blindly issued summons to the petitioner without taking cognizance of the alleged offence and without specifying as to offence in respect of which summons has been issued to the petitioner. Therefore, it is contended that the order of issuing process being opposed to settled principles of law laid down by this Court in the case of ‘MALLIKARJUNA v. STATE OF KARNATAKA’ reported in 2017 [5] KCCR 667, ‘YOGESH DESAI v. STATE OF KARNATAKA’ reported in 2016 [5] KCCR 1572 and ‘PEPSI FOODS v. SPL. JMFC’ reported in ILR 1998 KAR 3599, the impugned proceedings are liable to be quashed.
4. Disputing the submissions, learned Additional SPP appearing for respondent, argued in support of the impugned action. Referring to the Chemical Analysts Reports, learned Additional SPP has emphasized both the Analysts having come to the conclusion that the samples examined by them did not conform to prescribed standards of the Order, said report cannot be discarded on the ground of alleged discrepancy pointed out by learned counsel for the petitioner. Further, even with regard to drawal of samples, the same does not suffer from any infirmities as contended by learned counsel for the petitioner. The samples were sealed as per the procedure prescribed in Schedule-II of the Order and therefore the objections raised on this point are not tenable.
5. With regard to prosecution of the company, learned Additional SPP has referred to relevant averments in the complaint at paragraph-3 and has pointed out that Accused No.2 having been appointed as Compliance Officer of the manufacturer, namely, Zuari Industries Limited, said company is duly represented by its Compliance Officer and therefore even in this regard, objections raised by learned counsel for the petitioner is not legally tenable.
6. Insofar as the order passed by the learned Magistrate, learned Additional SPP would submit that the prosecution having been launched in the year 2013, at this length of time, proceedings cannot be quashed on the alleged irregularities pointed out by learned counsel for the petitioner and thus seeks to dismiss the petition.
7. I have bestowed my careful thought to the submissions made at the Bar and have carefully gone through the complaint and the material produced in support of the accusations made against the petitioner.
8. Petitioner is sought to be prosecuted for violation of Clause 19 of the Order. The provision reads as under:
“19. Restriction on manufacture, import, sale and distribution of fertilizers:
No person shall himself or by any other person on his behalf – [a] manufacture, import, for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertilizer which is not of prescribed standard.”
The said offence is made punishable under section 7[1][a][ii] of the Act which reads thus:
“7. Penalties:- [1] If any person contravenes any order made under section 3 – [a] he shall be punishable – [i] xxxx xxxx [ii] in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine.
Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.”
9. There seems to be no serious dispute with regard to the inspection conducted by the Authorized Officer with a view to secure compliance of the order. The only contention urged in this regard is that while drawing sample, the concerned Inspector has failed to follow the procedure prescribed in Schedule-II of the Order which which I would deal in the later part of this order. For the present, report submitted by the Analyst prima facie indicate that the samples drawn from the shop of the petitioner were certified as not according to specification. Though it is vehemently contended that report submitted by the Deputy Director of Agriculture, FCL, Bengaluru and the report obtained by petitioner from the Agricultural Officer, Fertilizer Control Laboratory, Villupuram, Tamil Nadu, are at variance, yet on going through these reports, it is seen that both analysts have given consistent opinion that the sample examined by them was not according to specification. Therefore, at this juncture, there is prima facie material to indicate that samples drawn from the shop of the petitioner did not meet the required specifications. As such, prima facie case is made out for prosecution of the petitioner. Even assuming that percentage of variation noted by the respective analysts are at variance, the opinion of chemical analyst is not final and conclusive. The opinion given by the analysts are required to be proved only during trial. Therefore, at this juncture, none of those reports could be discarded on the ground of alleged variations pointed out by learned counsel for the petitioner. As a result, the first contention urged by learned counsel for the petitioner in this regard is rejected.
10. Insofar as the defect highlighted by learned counsel for the petitioner regarding sealing of sample is concerned, it is relevant to refer to Schedule-II of the Order which deals with procedure for drawal of sample of fertilizers.
“1. General requirements 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;
[c] The material being sampled, the sampling instrument 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 put in a cloth bag which may be sealed with the inspector’s seal after putting inside the detailed description as specified in Form P. Identifiable details may also be put on the cloth bag like sample No./code No. or any other details which enable its identification.
[f] Each sample bag should be sealed air tight after filling and marked with details of sample and type of fertilizer and the name of inspector who has collected sample.”
11. In the complaint, it is stated that during inspection, random samples were drawn from four bags out of 300 bags of fertilizers stored in godown of the petitioner, out of which above 1.5 kg of fertilizer was taken as samples and the same was divided into three parts and kept in three clean and dry plastic bags, kept in clothed bag affixing inspector’s seal. This procedure, in my view, is in accordance with Clause[1] of Schedule-II of the Order.
12. Learned counsel for the petitioner has placed reliance on the decision of this Court in ‘STATE OF KARNATAKA v. K.H. NAGARAJU AND OTHERS’ reported in 2012 [4] KCCR 3361, to persuade the Court that the seized sample were not kept in a clean dry and airtight glass or secured hard polythene bottle or in thick gauged polythene bag and therefore the mandatory procedure prescribed under the Order was not followed.
13. In the fact situation of the case, I am not inclined to accept the submission of the learned counsel for the petitioner that the respondent-Inspector has breached the procedure in obtaining samples. The High Court of Rajasthan in CHANDRA PRAKASH AND OTHERS v. STATE OF RAJASTHAN’ reported in MANU/ RH/ 0316/ 1986 has held that the provisions of Schedule-II of the Fertilisers Control Order, 1957 are mandatory and in case of breach of procedure in obtaining samples, the court should not take cognizance of the offences committed under the said Act. In the said case, three samples were obtained from accused-firm and were sent for public analysis, but analysts reported the same to be sub standard. Learned Judge did not agree with final report. The High Court called for records and after verifying the records, it was of the opinion that procedure mentioned was not followed and as a result safeguard provided in the order was breached and in that context, it was held that non compliance of mandatory provision has vitiated the proceedings.
14. In the decision which is very heavily relied on by learned counsel for the petitioner in K.H. NAGARAJU’s case supra, though reference was made to the provisions of Schedule-II of the Order, the said decision was rendered after the trial of the accused. During trial, prosecution examined PW.1 and PW.2 and in their evidence, these witnesses did not depose that the samples taken during inspection were 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. Further, in the said case, accused were acquitted not for violation of the procedures, but on the ground that company which was responsible for contravention of the alleged offence was not arraigned as accused and in said context, it was held that respondents/accused were not responsible for contravention of Order.
15. In ‘CHARANDAS AND OTHERS v. STATE OF PUNJAB’ reported in 1987 EFR 315, sample though was put in polythene bags had remained in the same condition for more than one and half years till analysis and in view of this, it was held that taking of sample being in violation of mandatory provisions of law, FIR was liable to be quashed.
16. In the instant case, records reveal that samples were drawn in presence of the petitioner/accused. Form-J [Form indicating particulars of Fertilizer samples] contains the receipt signed by the petitioner. It reads as under:
“RECEIPT OF THE DEALERS “Certified that the sample of fertilizer has been drawn in accordance with the procedure laid down in the fertilizer control Order, 1985 from the stock in my possession and I have signed the test samples at the time of sealing. I have also received the one test sample out of the three test samples drawn.”
In the light of this certificate, contention of the petitioner that the samples were not drawn in accordance with the Fertilizer Control Order, 1985 cannot be accepted. Further, it is not case of the petitioner that on account of the defect in drawing and preserving the samples, they were found unfit for examination or that they were contaminated on account of improper sealing. The Analysts who examined the samples did not find any defect in the samples sent for their examination. Under the circumstances, the contention urged by the petitioner that the respondent-Inspector has breached the procedure in obtaining the samples cannot be a ground to quash the proceedings. Even otherwise, the said contention is required to be established only during trial and it is premature to hold it otherwise.
17. Likewise, the contention urged by the petitioner that the petitioner herein is not liable to be prosecuted without making the company as accused is also liable to be rejected in view of the specific averments contained in the complaint that the company namely, Zuari Industries Limited is represented by Accused No.2, its Compliance Officer. As a result, I do not find any merit in the contentions urged by the petitioner.
Accordingly, the petition is dismissed.
Sd/- JUDGE AN/-