Tribhuvan Singh vs State Of Madhya Pradesh

The petitioner, who is admittedly a Chemical Analyst of Deepak Fertilizer and Petro-Chemicals Ltd., who has imported the fertilizer from Russia under the license, is being prosecuted for sale and distribution of sub-standard fertilizer. On 6th and 15th the concerned Inspector visited a Go-down of distributing agency, Kothari Sales in Ratlam and have taken 2 samples. First was sent to Fertilizer Quality Control Laboratory, Gwalior, which was found "non-standard" as there was variation of 1.28 in the composition. On the request of the petitioner, second sample was sent to Fertilizer Quality Control Laboratory, Pune where sample was found "sub-standard" as there was variation of 4.52 & 4.62 in particle size, therefore, after following due process, a complaint was filed before Chief Judicial Magistrate, Ratlam, which is pending trial and admittedly, charges have been framed against the petitioner.

The grounds taken by the petitioner is that first sample of the imported fertilizer was taken at Kandla port itself, which was found in conformity with the standards specified by the law. Second sample was found "non-standard" as there was a variation in water soluble K2O but it was not found sub-standard due to variation in particle size. Report of Pune Laboratory does not show that there was any variation in water soluble K2O, but it shows variation in particle size, therefore, all three reports are contradictory and cannot be relied upon even prima facie.

Besides, the Fertilizer (Control) Order, 1985, Order 28(2) and the Schedule appended to this order, which provides certain procedure to be followed while taking samples have also been referred by the learned counsel for the petitioner and it is argued that while taking the samples these provisions have not been followed. Order 28(2) of the Fertilizer (Control) Order, 1985 reads thus:-

(2) Subject to the proviso to paragraphs (d) and (e) of sub-clause(1), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this clause.

Provided also that the inspector shall give the stop sale notice in writing to the person whose stocks have been detained and initiate appropriate action as per the provisions of this order within a period of twenty one days. If no action has been initiated by the inspector within the said period of twenty one days from the date of issue of the said notice, the notice of stop sale shall be deemed to have been revoked.

Part-B of Schedule appended to the orders as referred by the petitioner reads thus:-

Part-B

TOLERANCE LIMIT IN PLANT NUTRIENT AND PHYSICAL PARAMETERS FOR VARIOUS FERTILISERS

S.No

Fertilisers

Tolerance limit

1.

Straight Nitrogenous Fertilisers,

0.5 units for each

Straight Phosphatic Fertilisers,

nutrient

Straight Potassic Fertilisers, Straight

Sulphur fertilisers, NP Complex

Fertilisers, NPK Complex Fertilisers,

Micro Nutrients, 100 per cent water

soluble Complex Fertilisers, 100 per

cent Water Soluble Mixture of

Fertilisers, Mixture of fertilisers

2.

For mixture of micro nutrients

10 per cent of each

fertilisers

nutrient or 0.5 unit

whichever is less

subject to maximum

of 7.5 per cent of all

the combined

nutrients

3.

For Customised fertilisers and fortified fertiliser:

Nutrient level % for primary nutrient (NPK) and secondary nutrient (S, Ca, Mg)

0.5 units for each nutrient.

for micronutrients;

10 per cent of each nutrient or 0.5 unit whichever is less subject to maximum of 7.5 per cent of all the combined nutrients".

4.

Particle size

3 units

5.

Moisture

0.3 units

It is further argued that the procedure prescribed in Section 100 of Cr.P.C. has also not been followed. Samples taken by the Inspector and sent for analysis were not representative samples as there is no evidence that prior to take sample, the article was mixed or it was made homogeneous, so that it may represent the entire quantity of the fertilizer under test, therefore, also the complaint preferred by the Inspector deserves to be quashed.

Per contra learned Public Prosecutor submitted that the Inspector has followed the procedure by and large. Both the samples taken from the warehouse/go-down of the Kothari Sales have been found sub-standard on the one or the other ground. If there is any lapse in the procedure or variation in the reports that has to be appreciated by the trial Court. It cannot be said that on the face of it the procedure adopted by the Inspector or the reports submitted by the State or the Central Laboratory are false or cannot be relied upon. In such a situation, at the most, the prosecution needs an opportunity to explain as to why the discrepancies, if any, pointed out by the learned counsel for the petitioner exists, without granting opportunity to the prosecution, quashment of the prosecution of the petition is neither expected nor permitted while exercising inherent powers conferred under Section 482 of the Cr.P.C. The proper course for the petitioner is to raise and establish all the grounds taken before the Court and to seek the relief from the trial Court itself. Therefore, this is not a proper stage to quash the proceedings.

The power under section 482 Cr.P.C. is extraordinary in nature and it is settled proposition of law that this power has to be exercised sparingly and only in the cases where attaining facts and circumstances satisfy that possibilities of miscarriage of justice will arise in case of non-use of power. The Court can interfere in such exceptional cases where it appears from the face of the record that the prosecution is totally unwarranted for. There has to be a material error manifest from the record that results in miscarriage of justice. At this stage sifting and weighing of the evidence is neither permitted nor expected and the Court need not enter into meticulous consideration of evidence and materials at this stage.

Having regard to the contention raised by the learned Public Prosecutor and after going through the complaint filed against the petitioner, the procedure adopted by the Inspector while taking the samples, there may be a dispute that the proper law has been followed or not and the procedure adopted by the Inspector or the reports submitted by the State as well as by the Central Laboratory are false on the face of it, but in such a situation no case for aborting the prosecution at such initial stage where the charges have already been framed by the trial Court and the trial is proceeding further is neither proper nor in conformity of the mandate of law.

Learned counsel for the petitioner has placed reliance on Shri M.P. singh vs. State of Punjab and Ors. reported in (2006) 143 PLR 766, S.C. Sharma vs. State of Haryana reported in 2003(1) EFR 38, Shabbir Itarsi and Anr. vs. State of Haryana reported in 2005(1) EFR 481, Yogpal Malik vs. State of Haryana reported in 2003(1) EFR 150 and Madras Fertilizers Ltd. vs. The State of Tamil Nadu passed in CRA No.244/2004 decided on 07/01/2015 by Madras High Court, but these judgments are either based on the final appreciation of the evidence produced before the trial Court by both the contesting parties or clearly distinguishable on facts, therefore, they are not much helpful to the petitioner at this stage.

In view of the aforesaid, it would not be appropriate to quash the proceedings at this stage. The present petition being bereft of merits, is dismissed hereby.