JUDGMENT J.C. Mishra, J.
1. This petition under Article 226 of the Constitution has been filed by M/s. Tebariwal Trading Company and its proprietor for a writ of certiorari for quashing the First Information Report dated 17-1-98 in Crime No. 17 of 1998 under Section 3/7 Essential Commodities Act (hereinafter called 'the Act' for convenience) P.S. Kotwali, district Gorakhpur.
2. The prosecution case is that the respondent No. 3 Additional District Agriculture Officer, Gorakhpur inspected the godown of the petitioners on 30-8-97 and took sample of D.A.P. fertiliser. Respondent No. 2 prepared a memo in Form J which indicates that the sample was taken from a stitched bag and divided in three parts one of which was given to petitioner No. 2. The sample was received in Central Fertiliser Quality Control and Training Institute, Faridabad on 12-12-97 and it was analysed on 31-12-97. On analysis the sample was found to be non-standard. The laboratory communicated the result of the analysis to respondent No. 3 in Form L on 7-1-98, a copy of which was sent to the petitioner No. 2 and received on 17-1-98. On the same date respondent No. 3 lodged a report under Section 3/7 of the Act.
3. Heard Sri A.P. Srivastava, learned counsel for the petitioners and learned A.G.A.
4. The learned counsel for the petitioners contended that the sample was taken from machine stitched bag of fertiliser and, therefore, the petitioners are not liable nor they can be said to have committed any offence. Secondly, he contended that there was a gross violation of Clause 30 of the Fertiliser (Control) Order which provides that the sample should be sent for analysis to the laboratory within seven days. The learned counsel contended that as the sample was sent more than 3 months after the drawal of the sample there was violation of this mandatory provision and consequently the First Information Report is liable to be quashed. Thirdly, it has been contended that initially sample was sent to some laboratory notified by the State Government of U.P. and on analysis it was found to be of standaid quality. The respondent No. 3 instead of communicating the result sent the second sample for analysis to Central Fertiliser Quality Control and Training Institute, NH-4 Faridabad which was against the provisions of the Control Order. Fourthly, it has been contended that the petitioners were not given opportunity to get the sample given to them analysed and in the absence of this opportunity to get the sample analysed and tested by a recognised laboratory the natural justice was violated. Reference in this regard has been made to a decision of the Supreme Court in State of Punjab v. National Organic Chemical Industries Ltd., 1996 (11) SCC 613 but neither pronouncement was shown nor its reference was given.
5. Coming to the first point that since the fertilisers were directly taken from the manufacturer the petitioners cannot be said to be liable for any deficiency. The learned counsel contended that the fertiliser was of Godavari brand and it was kept in machine stitched bags.
6. The learned A.G.A. contended that the contention of the petitioners is not supported by Form J, which only indicates that the fertiliser was kept in stitched bags. He contended that as the fertiliser bag was hand stitched it could not be sold by the petitioners as it was not lead sealed. He also contended that the affidavit indicates that the averment regarding bags being machine stitched was not verified from personal knowledge but on the basis of some record which was not produced in the Court.
7. it is true that the Clause 30 required the samples to be sent within 7 days from the date of drawal but from the petition it appears that it was initially sent to some other laboratory, where on analysis it was found to be of prescribed standard. The second sample was sent for analysis to Central Fertiliser Quality Control and Training Institute. Thus, in view of the petition the samples were analysed twice. The learned counsel contended that the result of analysis by the laboratory notified by the State Government was correct and, therefore no action could be taken. On the contrary the learned A.G.A. contended that the analysis by the Central Fertiliser Quality Control and Training Institute which is recognized laboratory (Clause 29) should be accepted. It is needless to enter into this controversy since it is for the trial Court to consider and take a decision in this regard.
8. The learned counsel desires the F.I.R. to be quashed on the ground of delay in sending the sample for analysis and violation of rules regarding drawal of samples. The result of the analysis was communicated to the authority concerned after more than 4 months in violation of Clause 30.
9. The learned counsel for the petitioner contended that the sample was not despatched along with a memorandum in Form K to the laboratory for analysis within a period of seven days from the date of its drawal nor it was analysed within sixty days from the date of receipt of the sample in the laboratory nor the result of the analysis was communicated to the petitioner within thirty days from the date of receipt of the analysis report of the laboratory as contemplated by Clause 30 of the Control Order and, therefore, the first information report is liable to be quashed and on its basis no criminal proceeding can be initiated. Learned counsel referred to the observation made by this Bench in Criminal Misc. Writ Petition No. 513 of 1998 connected with Criminal Misc. Writ Petition No. 514 of 1998 Vinod Sarraf and one another v. Union of India decided on 4-3-98. In the aforesaid petitions the question arose whether the period of seven days indicated in Clause 30 was mandatory or directory in view of the pronouncement in Mukund Chand v. District Agriculture Officer and Fertiliser Registering Authority, Azamgarh 1988 AWC 569 and Criminal Misc. Writ Petition No. 6912 of 1997 Ved Prakash Shahi v. State of U. P. and others wherein interim relief was granted to the accused it was held that the time limit given in Clause 30 was mandatory. Reference was made to side-note of Clause 30 which is worded as follows "time limit for analysis and communication of result."
10. The learned A.G.A. contended that the view taken in the aforesaid decisions is not correct nor it causes any prejudice to the accused persons, on account of delay in despatch of sample. He contended that even if the said view is assumed to be correct the first information report cannot be quashed on account of delay in despatch of the sample or its analysis or communication of the result to the accused.
11. Learned A.G.A. Sri Arvind Tripathi referred to a pronouncement of the Supreme Court in T.V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry, 1994 All Cri C 226 : AIR 1994 SC 1818.
12. In the aforesaid pronouncement the question arose whether Rule 7(3) of the Food Adulteration Rules providing forty days lime for delivery of report of Public Analyst to Local (Health) Authority. The Supreme Court held that the period of forty days is not mandatory but only directory and violation of time limit given in Sub-rule (3) of Rule 7 cannot by itself, be a ground to throw out the prosecution case. The reasons assigned by the Supreme Court is reproduced below Para 14 of AIR 1994 SC 1818 :
It must be noted that Rule 7(3) is only a procedural provision meant to speed up the process of investigation on the basis of which the prosecution has to be launched. No doubt, Sub-section (2) of Section 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the Court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore, it must be shown that the delay, has led to the denial of right conferred under Section 13(2) and that depends on the facts of each case and violation of the time limit given in Sub-rule (3) of Rule 7 by itself cannot be a ground for the prosecution case being thrown out.
13. The Supreme Court observed that in Rule 7(3) no doubt the expression 'shall' is used but it may be borne in mind that the Rule deals with stages prior to launching the prosecution and it is also clear that if by the date of receipt of the report of public analyst the case is not yet instituted in the Court and it is only on the basis of this report of the public analyst that the concerned authority has to take decision whether to institute a prosecution or not. There is no time limit prescribed within which the prosecution has to be instituted and when there is no such time limit prescribed then there is no valid reason for holding the period of forty days as mandatory.
14. The time limit given by the Control Oder on the reasoning given by the Supreme Court cannot be said to be mandatory, further more even if the said provision is mandatory no interfeence can be made with the prosecution at this stage.
15. Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was held to be mandatory. In State of Himachal Pradesh v. Pirthi Chand, (1996) 2 SCC 37 : AIR 1996 SC 977 the State of H.P. had filed appeal for setting aside the order passed by the High Court under Section 482, Cr.P.C. affirming the order passed by the Sessions Judge discharging the accused on account of non-compliance of Section 50 of N.D.P.S. Act. The Supreme Court held that the Sessions Judge was not justified in discharging the accused after filing of charge-sheet holding that the mandatory requirement of Section 50 had not been complied with. However, the Supreme Court declined to interfere with the order on account of delay. The reasoning given by the Supreme Court is condoned in para 14 of the judgment given below :-
The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in Panchnanm to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected, i.e. Panchnama etc., nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into.
16. The Supreme Court further observed that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of illegal search property seized on the basis of said search it still would form basis for further investigation and prosecution against the accused. The manner in which contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.
17. The. Supreme Court also referred to earlier decision in Radha Kishan v. State of U.P., reported in AIR 1963 SC 822, wherein it was held that the evidence obtained by illegal search and seizure would not be rejected but requires to be examined carefully. In State of Maharashtra v. Natwarlal Damodardas Soni, reported in AIR 1980 SC 593 it was held that even if the search was illegal it will not affect the validity of seizure and further investigation of the authorities or validity of trial.
18. In Sunder Singh v. State of U.P., reported in AIR 1956 SC 411, the search was not invalidated for non-compliance of Section 103 of Cr.P.C. (1989) on the ground that respectable inhabitants of the locality were not associated with the search.
19. In State of Bihar v. P.P. Sharma, reported in AIR 1991 SC 1260, the High Court had quashed the prosecution on the ground that the samples were tested by Rajendra Agriculture University and found to be of standard quality on analysis. The Supreme Court reversed the order as it found that the result of the samples of the fertiliser supplied by the firm sent to the Central Laboratory were found to be sub-standard. The Supreme Court held that the High Court had no power to quash the prosecution by treating annexures and affidavits filed by the petitioners as evidence and converting itself into a trial Court. The annexures relied on by the petitioners were neither part of the police reports nor were relied upon by the Investigating Officer.
20. In view of the aforesaid pronouncement we find that the delay in despatch of the samples for analysis in the laboratory or delayed analysis or delayed communication of the result nor any infirmity in drawal of samples as indicated in the petition can be ground for quashing the first information report.
21. It has been contended that the first information report is liable to be quashed as the manufacturer has not been made an accused. This argument is also without any force. A dealer can stock or sell fertiliser if the bags are machine stitched or lead sealed if they are hand stitched to avoid any tampering with the contents. In case on investigation it is found that the bags were received in the condition in which they were found by the inspector at the time of taking sample the manufacturer may be liable and charge-sheet can be submitted against the manufacturer as well. It may be possible that at the stage of lodging report it was not known the identity of the manufacturer from whom the dealer accused had purchased the fertiliser and in which condition the fertiliser bags were received. Therefore, the report cannot be quashed on the ground that the manufacturer was not shown as accused.
22. It may be pointed out that the officers of the Agricultural Department/Inspector are not preparing Form. They are expected to note down particulars and condition of the containers to indicate whether the requirements of Clause 21 were observed or not viz. whether the bags were machine stitched or hand stitched; if hand stitched whether lead sealed or not; if sealed or machine stitched whether the contents could be tampered without breaking the seal or without a visible break in stitching; whether container bears only such particulars as specified by the Control Order.
23. The learned counsel referred to a decision in State of Punjab v. National Organic Chemical Industries Limited 1996 (11) SCC 613 and on its basis contended that the investigation is liable to be stopped. The pronouncement referred to in paragraph 11 of the petition was neither produced nor its reference was indicated by the learned counsel nor it is incorporated in the petition. However, we find that in case the petitioner requests either the investigating agency or the Court concerned after filing of the report the sample may be sent for analysis to the laboratory mentioned in the Control Order alter verifying that the seal is intact and no tampering has been made. The result of the analysis shall be considered by the Court trying the case.
24. In view of the aforementioned discussion we find that the first information report is not liable to be quashed.
25. The petition is disposed of with the direction that till submission of report under Section 173(2), Cr.P.C. the proprietor of the petitioner may not be arrested in Crime No. 17 of 1998 under Section 3/7 E.C. Act P.S. Kotwali, district Gorakhpur and further direction to the State Government to issue necessary directions to the officers/inspectors to prepare form 'J' properly with full details so as to disclose compliance or violation of Clause 21 of the Control Order.