1. This appeal is directed against the judgment and order dated 7th April, 1993 passed by the learned Additional Sessions Judge, Bhavnagar whereby he has dismissed the complaint lodged against the respondent and other co-accused under the provisions of section 7 of the Essential Commodities Act, 1955 and has acquitted them on the ground that the same is time barred.
2. The appellant - Agricultural Inspector, Mahua lodged a complaint in the Court of the learned Additional Sessions Judge, Bhavnagar being Criminal Case No.16/1987 alleging that on 5th July, 1986, he had gone to the premises of M/s. Akbarali Bahadurali, the respondent herein. He had taken a sample from the stock of Vahaan Chaap Super Phosphate 16% Phosphoric Acid in the presence of a responsible person of the said firm. The said sample was sent to the Government recognised laboratory, Junagadh for the purposes of analysis thereof. The analysis report was received on 21st August, 1986 and it was found to be not of the prescribed standard. The said sample contained 13.79% Phosphoric Acid instead of 16%. Under the circumstances, there was a breach of the provisions of section 13(1) of the Fertilizer (Control) Order, 1957. Accordingly, the complaint came to be lodged against the respondent and six other accused including the manufacturer and the wholesalers.
3. Before the trial court, the accused made an application dated 26th March, 1993 contending that the complaint had been lodged after the period of limitation and was required to be dismissed on this ground alone. It was contended on behalf of the accused that in the present case, the sample had been taken on 5th July, 1986 and the complaint had been lodged on 13th August, 1987. In the present case for the offence punishable under section 7(1)(a) of the Essential Commodities Act, the maximum sentence which is prescribed is one year, hence, in view of the provisions of section 368(2) (b) of the Code, the complaint was required to be lodged within a period of one year from the date of taking of the sample. That the complaint having been lodged beyond a period of one year of the date when the sample came to be taken, the same was time barred. By the impugned judgment and order dated 7th April, 1993, the learned Additional Sessions Judge has accepted the contention of the accused and has held that the complaint having been lodged beyond a period of one year from the date of collecting the sample, the complaint was time barred and has acquitted the accused.
4. Mr. K.L. Pandya, learned Additional Public Prosecutor assailed the impugned judgment and order passed by the learned Additional Sessions Judge by submitting that the same was contrary to the law laid down by this court in the case of Rama Fertilizers Pvt. Ltd. & Anr. v. State of Gujarat & Anr., 2001 (1) G.L.H. 698. It was pointed out that the learned Additional Sessions Judge has placed reliance upon a decision rendered by the learned single judge of this court in Criminal Revision Application No.410/1989 for the purpose of holding that the period of limitation would start running from the date when the sample was taken. Referring to the decision of the Full Bench in the case of Rama Fertilzers (supra), it was pointed out that the Full Bench has held that the decision of the learned Single Judge in Criminal Revision Application No.410/1989 (P.D. Agarwal v. State of Gujarat and another) decided on 11th October, 1990 taking a contrary view does not lay down the correct law. It was submitted that under the circumstances, the impugned judgment and order is required to be quashed and set aside and the respondent is required to face the trial.
5. Opposing the appeal, Mr. Dipen Desai, learned counsel for the respondent has submitted that the respondent herein is only a dealer. By the impugned judgment and order, all the accused have been acquitted for the alleged offences, whereas the State has preferred appeal only qua the present respondent and has not thought it fit to prefer appeals against the remaining respondents including the manufacturer and the wholesalers. It was submitted that in the present case, the sample was taken in the year 1986 whereas the offence alleged against the respondent is under the provisions of the Fertilizer (Control) Order, 1957. It was pointed out that the Fertilizer (Control) Order of 1957 has been repealed in the year 1985 by virtue of section 39 of the Fertilizer (Control) Order, 1985. Under the circumstances, the provisions of the Act which had been repealed and were no longer in existence could not have been invoked against the respondent herein. It was submitted that the sample in question had been obtained from a sealed polyethylene bag bearing the marks of the manufacturer. According to the learned counsel, assuming that invocation of the provisions of the Order of 1957 would not vitiate the prosecution case, and the order of 1985 is to be applied, even then the prosecution case suffers from a basic infirmity inasmuch as the sample was taken on 5th September, 1986 whereas the complaint was lodged on 13th August, 1987 after a period of more than a year since the sample was taken. It was further submitted that the complaint in question was lodged on 13th August, 1987 and that despite the fact that the same had been lodged against seven accused persons, all of whom were acquitted by the impugned judgment and order, the prosecution has not preferred any appeal qua the other accused and has chosen to prefer the appeal against the present respondent only. It was submitted that when the fertilizer in question was purchased in a sealed polyethylene bag which was packed by the manufacturer and the bill had also been produced, in the absence of the manufacturer being arraigned as an accused, no useful purpose would be served as the respondent alone cannot be prosecuted for the offence in question, more so, after a lapse of more than twenty five years. Under the circumstances, even if the court were to accept the submission made by the learned Additional Public Prosecutor, there is no warrant for any intervention by this court.
6. From the facts and contentions noted hereinabove, it is apparent that the complaint in question has been lodged against seven accused wherein M/s. Akbarali Bahadurali, a partnership firm is the accused No.1, the respondent herein Akbarali Bahadurali, who is stated to be a responsible person of the firm is the accused No.2, accused No.3, 4 and 5 are the wholesalers and accused No.6 and 7 are the manufacturers of the fertilizer in question. It was pointed out that all the accused had jointly preferred the application before the learned Additional Sessions Judge contending that the complaint was barred by limitation which contention has been upheld by the learned Additional Sessions Judge in the impugned judgment and order. However, while preferring the appeal, the appellant for reasons best known to it, has chosen to pursue its case only against the accused No.2 – Akbarali Bahadurali.
7. Insofar as the merits of the impugned order are concerned, it cannot be gainsaid that the same is squarely covered by the decision of this court in the case of Rama Fertilizers Pvt. Ltd. v. State of Gujarat (supra) wherein the Full Bench has held that the word “punishable” occurring in section 7(1)(a) of the Act in context of the offences falling in sub-clause (ii) thereof will have relevance in determining the question of the period of limitation under section 468 of the Code and since the offence alleged was punishable with imprisonment for a term which may extend to seven years, no period of limitation was attracted in the said case and the complaint was, therefore, not time barred by limitation under section 468 of the Code. In the present case, the offence alleged is under section 7(1)(a) of the Essential Commodities Act which, insofar as the same is relevant for the present purpose, reads thus:
“7. Penalties.
(1) If any person contravenes any order made under section 3,-
(a) he shall be punishable-
(i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and
(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:”
The allegation against the accused is that the fertilizer recovered from its premises does not meet with the prescribed standard.
8. At this juncture, it may be germane to refer to the provisions of section 3 of the Essential Commodities Act. Sub- section (1) thereof provides that if the Central Government is of the opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution etc., it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Sub- section (2) lays down that without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide:
(a) to (g) xxxx
(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;
(i) for requiring persons engaged in the production, supply or distribution of or trade and commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order;
9. On a plain reading of the above clauses, it is apparent that neither does the Fertilizer (Control) Order, 1985 nor does the Fertilizer (Control) Order, 1957 fall under the said clauses. Under the circumstances, the offence in question would relate to the offence under section 7(1)(a)(ii) of the Essential Commodities Act which provides for imprisonment for a term which shall not be less than three months but which may extend to seven years in case of contravention of any order made under section 3. It is, therefore, amply clear that the offence alleged in the present case is punishable with imprisonment for a term which may extend up to seven years. The decision of this court in the case of Rama Fertilizers Pvt. Ltd. (supra) would, therefore, be squarely applicable to the facts of the present case. Under the circumstances, the learned Additional Sessions Judge was not justified in holding that the period of limitation would be one year and accordingly applying the same to the facts of the present case.
10 In the light of the above discussion, it is apparent that the impugned judgment and order being contrary to the law laid down by this court cannot be sustained.
11. At this stage, it would be necessary to examine as to whether any useful purpose would be served by remitting the matter back to the trial court for the purpose of proceeding further with the trial.
12. It may be noted that in the present case, the complaint has been lodged for breach of the provisions of the Fertilizer (Control) Order of 1957. Admittedly, the sample in question had been taken on 5th July, 1986 after the coming into force of the Fertilizer (Control) Order, 1985. On that day, the Fertilizer (Control) Order, 1957 stood repealed by virtue of the provisions of section 39 of 1985 order. Under the circumstances, the provisions of the Order of 1957 could not have been invoked in the facts of the present case. Apart from the aforesaid, assuming that instead of the provisions of the Order of 1957, the appellant could have invoked the provisions of the Fertilizer (Control) Order, 1985 even then, on an overall view of the matter, examining the facts of the present case in its totality, the record of the case indicates that the sample in question had been obtained from a sealed bag of Vahaan Chaap Single Super Phosphate manufactured by Dharamshi Morarji Chemicals Company, Mumbai. Thus, the respondent herein was entitled to raise a defence that he had purchased a sealed bag from the manufacturer and as such, could not be held liable when the sample did not meet with the prescribed standard. However, in the present case, initially though the manufacturer and the wholesalers had been arraigned as accused in the complaint, the prosecution has not thought it fit to prefer any appeal against the order of acquittal passed against them as well as against the accused No.1 firm. The learned Additional Public Prosecutor is not in a position to explain as to why the respondent herein has been singled out for the purpose of preferring the appeal, more so, when the fertilizer was purchased in a sealed bag and the sample was taken from a sealed bag bearing the mark of the manufacturer. In the light of the facts which are emerging on record, this court is of the view that though the impugned judgment and order passed by the learned Additional Sessions Judge suffers from a legal infirmity, restoring the matter before the trial court would be an exercise in futility in view of what is discussed hereinabove.
13. Under the circumstances, while disagreeing with the view adopted by the learned Additional Sessions Judge to the effect that the complaint was barred by limitation, in the peculiar facts and circumstances of this case, this court does not find any warrant to interfere at this stage. The appeal is, accordingly, dismissed.
( Harsha Devani, J. ) hki