Vinod Shanker Dave, J.
1. This application under Section 482 Cr.PC has been directed against the order, dated April 13, 1985, passed by Special Judge (E.C. Act) Rajasthan, Jaipur, whereby he took cognizance against the petitioners for offence under Section 3/7 of the Essential Commodities Act, 1955 for violation of Clause 13(a) of the Fertilizer Control Order, 1957.
2. Brief facts giving rise to this case are that the Assistant Director, Agriculture (Quality Control), Kota had filed a report at Police Station, Kaithoon on February 17,1984, wherein he alleged that he had visited the Sale Centre of M/s Ambika Enterprises, Bus Stand, Kaithoon on December 4, 1983 and had taken the sample of Single Super Phosphate 16% and NPK 12 : 32 : 16 of Jeevan Fertilisers Company Ltd. It was mentioned that the firm obtained 20 bags of Fertilisers of which 19 bags had been sold and one duly stitched by machine was lying in the shop. Three samples were obtained and were sent for analysis to the Public Analyst who after analysis reported the sample to be sub-standard. Other allegations were also levelled against the petitioners which are not mentioned since they are not relevant for the disposal of this case. Suffice it to say that after investigation the Police submitted a final report which was submitted before the Special Judge (EC Cases), Jaipur. The learned Judge did not agree with the final report and said that in Clause 13(a) of the Fertilisers Control Order, 1957 it is mentioned that no person shall himself or by any other person on his behalf manufacture for sale, sell, offer for sale stock or exhibit for sale or distribute any Fertiliser which is not of prescribed standard, and according to the learned Special Judge since sample was taken to be sub-standard the Directors and Parterns of all the three, Firms which had the dealing were prima facie liable for being prosecuttd and hence took cognizance of the offence against the petitioner. They have challenged the same in this Court by this petition.
3. It is submitted by Mr. Mehrish that the learned Special Judge before taking cognizance has not applied his mind to the provisions of law and the material on record. It is submitted that he has not even gone through the reasons given in final report and before coming to the conclusion that there is contravention of Clause 13 of the Fertilisers Control Order, 1957. he ought to have taken note of Clause 14(a) of the said order along with the Schedule II mentioned therein. It is submitted that the sample had been taken in contravention of tl e provisions of law and, therefore, the petitioners cannot be prosecute 1 as prolonging the prosecution would only result in undue harassment to the petitioners.
4. The learned Public Prosecutor could not substantiate the order passed by the learned Special Judge but submits that the petitioners should raise this point at the time of framing of the charge.
5. T called for the record of the case and perused the same. I have also gone through the various provisions of the Fertilisers Control Order, 1957. Schedule II appended to the Order which lays down a procedure for drawing samples of Fertilisers. Clause 14(a) of the Order authorises the inspector to draw the samples of Fertilisers in accordance with the provisions for drawing of the samples as laid down in Schedule II to this order. In drawing the samples precaution had to be carried out, namely:
(a) Samples shall not be taken at a place exposed to weather;
(b) The sampling instruments shall be clean and dry when used. (Diagram of the sample tube given separately);
(c) The material being sampled, the sampling instruments and the containers for sample shall be protected from adventitious contaminations;
(d) To draw a representative sample, the contents of the each container selected for sampling shall be mixed at thoroughly as possible by suitable means;
(e) The samples shall be placed in suitable, clean, dry and air tight glass or other suitable containers;
(f) The sample containers shall be on such a size that they Are almost completely filled by the sample;
(g) Each sample container shall be sealed air-tight after filing, and marked with full details of sampling, the date of sampling, and other important particulars of the consignment;
(h) Samples shall be stored in shade.
Thereafter if it is essential that when the Fertiliser is in packages or on number of containers have to be selected as mentioned in the table given to Clause 2 to this Schedule wherein according to it different number of containers have to be selected. These containers have to be selected at random and have to be sealed as mentioned in the procedure. It also mentions that if the containers do not permit the use of sample in instruments then the contents of the container should be emptied on a level clean on hard surface and a composite sample be drawn by process of quartering as described under Clause 2(b)(iii) wherein it has been mentioned that if the composite sample is more than 4 pounds after spreading of a level clean hard surface it wilt be divided into four equal parts. Two parts which are diagonally opposite have to be removed and the remaining two parts have to be mixed together to form a cone, flatten out the cone and repeat the operation of quartering till composite sample of about 4 pounds (2 kg.) in weight is obtained. Thus a detailed procedure is not only laid down but safe-guards have been provided so that innocent persons are not prosecuted. The revisions of Clause 14A of the Order and Schedule II annexed thereto are mandatory and non-observance of them is fatal to the prosecution. It may be observed that in all the Fertilisers various gases are necessarily present and by exposer to the atmosphere while chemical changes may take place. In this view of the matter Legislature while enacting the Order not only gave quantity of the sample to be obtained but provided a safe-guard that in different low sizes different number of containers have to be selected in as much as for example, suppose there is one load, then two containers should be selected for obtaining the samples. If there are 100, then 5 containers have to be selected and if there are thousand, then 9 containers have to be selected. Thus different numbers are required for different loads. But when there is only one container as in the instant case, in my opinion, the procedure mentioned for preparation of the composite sale ought to have been followed because this also is a safe-guard provided in the Order. Besides this, the report dated December 4, 1983 does not indicate that any of the precautions mentioned in Schedule II were taken prior to drawing samples except mentioning one line in the report that a sample was obtained in accordance with Schedule 14 of the Order which in fact nowhere exists, it is Sehedule II under Clause 14A of the Order, hence it is evident that the officer concerned had not even gone through the correct Order and the correct Schedule before taking the sample and in my opinion the final report given by the Investigating Officer ought to have been accepted by the learned Special Judge. This was in a case where cognizance should not have been taken by the Court when there was patent breach of the procedure laid down for obtaining the samples.
6. The result of the aforesaid discussions is that this application is allowed, order, dated April 10, 1985 taking cognizance and summoning the accused by bailable warrant of Rs. 5000/- each is set aside. The proceedings are quashed.