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Judgment
K.S. Tiwana, J.—This revision by the Punjab State has been directed against the discharge of the Respondents for an offences u/s 7/13 of the Essential Commodities Act read with Clause 13(l)(a)(vi) at the Fertilizer (Control) Order, 1957.
The facts of the case which led to the filing of this revision are that on 17th of September, 974, Fertilizer Inspector of Amritsar went to the business premises of the Respondents and found 87 bags of fertilizer known as Superphosphate single'' lying stacked there for sale. The Fertilizer Inspector took out simple from the containers of the fertilizer and divided it into three equal parts One part was entrusted to the Respondents, the other was retained by him and the third was sent to the Quality Control Laboratory (Fertilizers) Department of Agricalture, Punjab. Ludhiana, for anlysis(sic), where it was received on 18th of September 1974. The officer Incharge of the laboratory, who tested the sample of the superphosphate found water soluble phosphite has P2) c5(sic) as 1912 per cent in place of the required percentage of 16 percent. The premissible tolerance variation of the plant nutrient for This category of the fertilizer is U I per cent The sample was thus short in water soluble superphosphate single'' (as p3 c5)(sic) by 00(sic) 88 per cent. in the basis of this data, case for violation of Section 7/13 of the Essential Commodities Act was registered and the Respondents were prosecuted in the court of the Chief judicial Magistrate, Amritsar
A objection was taken before the learned Chief Judicial Magistrate on behalf of the Respondents that the requisite quantity as provided in Rule 4 of the Schedule II of the Fertilizer (Control) Order, 1957 (hereinafter referred as the Rules) was not taken by the Fertilizer Inspector and on that ground there was a violation of the statutory provisions. It is worth noticing that in the report of the laboratory the weight of the sample which was received there for analysis has not been noted The learned Chief Judicial Magistrate frected the Respondents to produce their smple and also the Fertilizer Inspector to produce the sample retained by him On production both the samples were weighed in Court. The sample entrusted to the Respondents came out to be 36o grams in weight and the sample retained by the Fertiliser inspector came to be 300 grams in weight As all the Three samples obtained under the Rules are required to be of uniform weight, the learned Chief judicial Magistrate concluded that the sample sent to the laboratory must have been also of less weight than 0-5 Kilograms as provided in Rule 4 in Schedule II Following the judgment reported in Rajaldas Gurunamal Pamanani Vs. The State of Maharashtra, , wherein the violation of Rule 22 of the Prevention of Food Adulteration Rules was made regarding the weight of the sample, the learned Chief Judicial Magistrate discharged the Respondent. Feeling disstisfied(sic) with this order the Punjab State has come to this Court in revision
On behalf of the State it was argued that A l.R. 1975 S.C. 189 case (supra) decided by the Supreme Court has been over ruled in State of Kerala etc v. Alasserry Mohammad etc (1978) 5 Cr. L. T. 204 and on that ground the very basis of the order of discharge of the learned Chief Judicial Magistrate has slipped from under the feet of the Respondents and that the order of discharge requires to be set aside-
With the help of the learned Counsel for the parties I have gone through the judgment in Alasserry Mohammad''s case (supra) Shri Jagan Nath Kaushal, Senior Advocate, appearing on behalf of the Respondents has tried to distinguish this judgment and has urged that in view of the mandatory character of Rule 4 of Schedule II this judgment is not attracted for application because of the directory nature of Rule 22 of the Prevention of Hood Adulteration Rules which was interpreted in Pammani''s case (supra). He has further argued that although the reasoning of the learned Chief Judicial Magistrate to discharge the Respondents centred round the judgment in Pamnani''s case (supra), but still he can urge for the dismissal of the revision on the basis of the language of Rule 4, which cannot in any case be termed as directory.
At the outset it will be appropriate to reproduce Rule 4 in Schedule II, which is as under:-
4 Test sample and reference sample
(i) The composite samples obtained under para 2 or 3 above shall be spread out on a clean, hard surface and divided into three more or less equal portion(sic) no(sic) less than 1 pound (0.5 Kg)eace(sic) Each of there samples shall constitute the test sample.
(ii) Each test sample shall be immediately transferred to a suitable container, as described under 1(e) and 1(f), provided with a tight fitting copper or limite that the original composition of the fertilizer rem ins unchanged. Each container shall be properly labelled given all the particulars of the consignment as described under 1(g)
(iii) Each test sample container shall then be sealed with seals of both the Inspecting Officer and the manufacturer or dealer or purchaser as he case may be,
(iv) One sample so sealed shall be sent to the State Fertilizer Analyst for analysis and the second given to the manufacturer or dealer or purchaser as the case may be. The third sample shall constute the reference sample and shall be retained and(sic)the Inspecting Officer for production in the court, if necessary.
The legislature had provided in a mandatory form, as is Apparent from the language used in this rule, that the minimum quantity of the sample of a Fertilizer collected by the Fertilizer Inspector has to be not less then 0.5 kilogram or one pound. 1 he rule does not permit of approximation regarding this weight, as is the case in Rule 22 of the Prevention of Food Adulteration Rules. It insists on a definite minimum(sic) quantity in weight. The reason for this insistence by the leg slature is not without any basis. It is well known that initially and basically superphosphate is not a chemical product. It is a mmoral(sic) product, which has phosphates and other substances, like phosphoric acid, monccalcium(sic) phosphate, Di-calcium phosphate, Tri calcium phosphate. Calcium su-lphaate(sic), etc it is treated with sulphuric acid for conversion to be utilised as a plant cutrient. The main constituents which are insisted by the rules in Schedule I are: -
Superphosphate ingle-Graae 1-16% P O
(i) Moisture, per sent by weight, maximum 12.O
(ii) Free phosphoric acid (as p2 o 5) per cent by
weight, maximum 2 0
(iii) Water soluble phosphate (as P2 05)per cent by weight minimum Since it is not mixture prepared by way of chemical process and is only a compound, the legislature was alive to this fact that all the ingredients like moisture P1 os and water soluble phosphate etc could not be uniform in the produce finally produced by the factories for distribution and ale to the consumers For that matter, a very comprehensive process regarding the taking of the samples has been provided in Clause 2 of Schedule 11, which is as under:-
2 "Sampling from packages or containers, (a) scale of sampling.-(i) Lot-All containers in a single consignment of the material of the same grade and type drawn from a single batch of manufacture shall constitute a lot If a consignment is declared to consist of different batches of manufacture, the batches shall) be marked separately and group of containers in each batch shall constitute separate lets. In the case of a consignment drawn from a continuous process, (1000 containers lor 100 tonners) of the material shall constitute a lot
(ii) The number of containers to be chosen from a lot shall depend on the size of the lot and shall be as given in Table below:-
Number of containers packages to be selected for sampling.
Lot size
No, of containers to be selected
Lot size No. of to be selected
containers
N
n
101-300
6
(I)
(2)
301-500
7
2 8
2
501-l-508
9-27
3
801-1300
9
28-64
4
65-100
5
130'' and above
10
These containers shall be chosen at random from the lot, and in order to ensure randomness of selection a random number table as agreed to between the purchaser and the supplier shall be used.
In case such a table is not available, the following procedure may be adopted.
Arrange all the containers in the lot in a systematic manner and
starling from any containers, count them as 1. 2. 3............upto and
so on, bring equal to the Intergral part of N/n Everyrth cental nor thus counted shall be withdrawn and all such containers shall constitute the sample.
(b) Preparation of composite samples.
(i) Draw, with an appropriate sampling instrument, small portions of the material from different parts of each container in the gross sample. The portions so obtained from the containers shall be mixed thoroughly and made into a composite sample
(ii) If the containers do not permit the use of sampling instrument empty the contents of the containers on a level, clean, hard surface and draw a composite sample by the process of quartering as described under 2(b)(iii), below.
(iii) If the composite sample is much larger than about 4 lb (2 kg) in weight, its size shall be reduced by the method of quartering. Spread the composite sample on a level clean, hard surface flatten it out and divide it into four equal parts. Remove any diagonally opposite parts Fix the two remaining parts together to form a cone, flatten out the cone and repeat the operation of quartering till a composite sample of about 4 lb (3 kg) in weight is obtained.
The rules provide that when the lot size is between 2 to 8, the number of containers to be selected for taking of the sample should act be less than two. Similarly if the lots arc of bigger size then larger number of containers are to be selected for collection of samples The maximum number of the containers to be selected has be en provided as ten, as is apparent from Clause 2 reproduced above. It is difficult to have homogeneity in such samples. Effort has to be made by the person drawing the sample to make it as homogeneous as possible. A direction in the mandatory form has been prescribed to draw samples with specialized sample tubes from different directions of the container In case the quantity is more, then the procedure is prescribed to mix those contents, make in the shape of heap draw sample after dividing it diagonally. Then pour the whole substances in the form of cone and flatting out the cone and then draw a sample in a similar way. This entire effort of the legislature in the providing of these rules is to emphasise that contents may not be uniform in each container containing ''superphosphate single,. It is with this view that the minimum quantity of a sample is insisted in Rule 4 i) of Schedule It and the language is mandatory. The conclusion of the learned Chief Judicial Magistrate seems to be correct, it is proved on the basis of the weight of the samples with the Respondents and the Fertilizer Inspector that the sample sent for analysis may too have been short of weight.
Reverting to the judgment of the Supreme Court in Alassery Mohammad''s case (supra) the main thing which influenced their lordships in that case was the heading of Rule 22 which reads: ''Approximate quantity to be supplied." On that basis, it was held that the rule is a directory one and does not provide the quantity of the weight mentioned therein, as mininum in the form of a mandate In the case in hand, the language of Rule 4(i) is quite distinct and different he language is "not less than one point (0.50 kg) each " The mandate of the legislature in the case of fertilizers is that the minmum quantity of the sample taken should be as given in the Rules. In Alassery Mohammad''s case (supra), in para, quotation from the eleventh edition of Maxwell on interpretation of statutes is given which is as:-
Where, indeed, the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained as to the intention
The language does not permit any by pass, short-cut or vioiation by the Government official, whose duty is the enforcement of law by way of collecting the sample When the satute provides that a thing has, to done in a particular manner, it cannot permitted to be done in any other manner than the one prescribed in the statute itself There is no scope for the argument as raised by the learned Counsel for the Punjab State that by taking the approximate weight of the sample the provisions of Rule 4 were substantialy complied with There is no question of substantial compliance ; it has to be an absolute compliance of the Rules, with no deviation of any type in any manner if the argument of substantial compliance is accepted, it well defeat the very object of the rule.
For the foregoing reasons. I do not find if the learned state counsel has made out a case for interference in the order of discharge. The revision is, therefore, dismissed.