ORDER
S.S. Grewal, J.
1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) read with Article 227 of the Constitution of India relates to quashment of impugned first information report No. 98 dated 23-7-1989 registered at Police Station, Longowal district Sangrur under Section 7 of the Essential Commodities Act (hereinafter referred to as the Act) and subsequent proceedings taken thereunder.
2. In brief facts relevant for the disposal of this petition, as emerge from the first information report are that on 18-8-1988 Hari Singh, Agricultural Inspector, Longowal, exercising powers of Fertilizer Inspector under clauses 27 and 28 of the Fertilizer Control Order, 1985 (hereinafter referred to as Order, 1985) along with Tejwant Singh Gill Assistant Project Officer, inspected the premises of Punjab Agro Service Centre, Longowal. There sample of fertilizer was drawn from machine stitched bags containing Zinc sulphate manufactured by M/s. R.K. & Co. (Balli Brand), Chandigarh. The material was thorougly mixed and transferred into three thick gauged polythene bags each weighing about 500 grams approximately these were closed by thick thread and each sample was transferred to cloth bag along with form ‘J’. The cloth bag was duly sealed with the seal of the Fertilizer Inspector. One representative sample was handed over to the dealer. Another sample was sent to the Fertilizer Quality Control Laboratory, Ludhiana on the same day through Raghbir Singh Agricultural Inspector. The sample was declared non-standard by the said Laboratory because there was variation of 3 per cent of zinc content from the specification as provided in Schdule II of the Order, 1985 against the permissible tolerance limit of 0.20 and constituted violation of clause 19(1)(a) of the Order, 1985 read with Section 7/12AA of the Act.
3. The learned counsel for the parties were heard.
4. On behalf of the petitioner, it was mainly contended that the representative or test and reference samples were not taken by the Fertilizer Inspector according to procedure mentioned in Schedule II as contemplated in provision of Rule 1 as well as Rule 6(i)(ii) of the Order, 1985, which for the sake of convenience are reproduced as under: —
“1. General requirements of sampling :
In drawing samples, the following measures and precautions should be observed :
(a) Samples shall not be taken at a place exposed to rain/sun;
b) The sampling instruments shall be clean and dry when used;
c) The material being sampled, the sampling instrument and the bags of samples should be free from any adventitious contamination;
d) To draw a representative sample, the contents of each bag selected for sampling should be mixed as thoroughly as possible by suitable means;
e) The sample should be kept in suitable, clean dry and air tight glass or screwed hard polithene bottle of about 400 gms capacity or in a thick gauged polyhene bag. This should be put in a cloth bag which may be sealed with the Inspector’s seal after putting inside the detailed description as specified in Form ‘J’. Identifiable details may also be put on the cloth bag like sample No./Code No. or any other details which enables its identification;
f) Each sample bag should be sealed air tight after filling and marked with details of sample, type and brand of fertiliser, name of dealer/manufacturer and the name of Inspector who has collected sample.”
Rule 6(i)(ii) of Schedule II.
6. Preparation of test sample and reference Sample:
(i) The composite sampel obtained above shall be spread out on a clean hard surface and divided into three approximately equal portions of about 400 gms each in weight. Each of these samples shall constitute the test sample.
(ii) Each test sample shall be immediately transferred to a suitable container as defined under para 1(e). The slip with detailed description may be put inside the sample bag. Each bag shall also be properly labelled as mentioned in para 1(f).”
5. It was further contended that the allegations in the impugned first information report do not indicate the observance of the mandatory provisions for taking sample referred to above; it was not specifically mentioned in the first information report that the composite sample initially taken was spread out on a clean hard surface and then divided into three approximately equal portions of about 400 gm each. Nor it was mentioned that each of these three samples (test sample) was kept in suitable, clean dry and air tight glass or screwed hard polythene bottle of about 400 gm capacity or in a thick gauged polythene bags.
6. The argument is devoid of any merit. There are specific allegations in the impugned first information report that the material was thoroughly mixed and transferred into three thick gauged polythene bags and they were closed by thick thread. Thereafter each sample was transferred to cloth bag along with Form ‘J’ in which the weight of the sample is also mentioned. There is no dispute with the proposition that the provisions mentioned in Schedule II of the Order, 1985 for taking sample are mandatory as observed by this Court in State of Punjab v. Karam Chand Rajinder Kumar, 1992 (3) Recent Criminal Reports 365, State of Punjab v. Balak Ram, 1991 (3) Recent Criminal Reports 425, State of Haryana v. Jagtar Singh, 1979 (6) Cri LT 179 : (1980) Cri LJ 1232) and A.K. Roy v. State of Punjab, 1986 (2) RCC 569 : (1986 Cri LJ 2037). As far as the present case is concerned, prima facie the allegations do not in any manner indicate that mandatory provisions for taking of the samples have been violated by the Fertilizer Inspector. It would be for the learned trial Court to go into this aspect of the case and after recording evidence decide the question whether sample of fertilizer in the instant case was taken according to the mandatory provisions or not. However, as far as the facts and circumstances of the present case are concerned, no such finding can be finally given at this stage and it could not be said that the continuation of proceedings in the trial Court against the petitioner on the basis of the impugned first information report would amount to abuse of the process of the Court.
7. This petition is accordingly dismissed. However, it is clarified that nothing herein observed for the disposal of this petition shall in any manner be construed to affect the rights of the parties on merits. Copy of this order as well as the record be sent back to the trial Court to decide the case on merits expeditiously according to law and procedure. The petitioner through his counsel is directed to appear in the trial Court on 3-3-1993.