IN THE COURT OF THE II ADDL. JUDL. MAGISTRATE OF I CLASS,NELLORE
Present: Sri M.Guru Nath,
II Additional Judicial Magistrate of First Class, Nellore.
Monday, this the Nineteenth (19th) day of October, 2015
C.C.No.83 of 2012
State Government, Represented by the Assistant Director of Agriculture (Regular) Vinjamur, S.P.S.R. Nellore DistrictComplainant.
Vs.
1.Vadlamudi Venkateswarlu, S/o Venkata Swamy, Aged 42 years, Proprietor Sri Venkata Ramana Fertilisers and Pesticides, Vinjamur (Proprietor)
2.L.V.Ramana Reddy (Distributor) (Substituted P.Ramamohan Rao as per orders in
Crl.M.P.No.2945/13, dated 12-9-2014)
Person on behalf of Area Manager, Nagarjuna Fertilisers & Chemicals Limited, Darga Mitta, Nellore
3.B.Suresh, S/o Gopi Kishan, aged 32 years, D.No.14-9-462, Chudi Bazar, Hyderabad, Sri Ambika Traders, Dealers : Grains Kirana Chemicals & Commission Agents, Gali Hingabeg, Tilak Bazaar, Delhi- 110 003Accused.
This case is coming on 13-10-2015 before me for hearing in the presence of learned Assistant Public Prosecutor for Complainant and of Sri I.V.Rama Sastry, Counsel for Accused person, upon hearing their arguments and having stood over for consideration till this day, this Court delivered the following:-
J U D G M E N T
1. The Assistant Director of Agriculture (Regular), Vinjamur having invoked provisions of Section 190 and 200 Cr.P.C., filed present complaint against above said accused persons, alleging offence punishable under
Section 7 (2) of Essential Commodities Act, 1995 R/W Order 19 (1) (a) of
Fertiliser (Control) Order, 1985. Brief facts referred in the complaint are narrated as under.
The complainant in the capacity of Assistant Director of Agriculture- cum-Fertiliser, inspected the shop of A-1 on 23-12-2000, known as Sri
Venkata Ramana Fertilisers and Pesticides, Vinjamur Village & Mandal,
Nellore District and found the presence of A-1, transacting business of
Fertilisers. P.W.1 noticed stock of Sri Ambica Maha Zink Packets of 300 grams 2 each, which were exhibited for sale. P.W.1 lifted four packets of Ambica
Maha Zink of 300 grams each as samples under Form-K and packed them in four dry tins, duly affixed with slips code No.NR-9-V-2000-2001. After completing process of collection of four samples and sealing process, a mahazarnama was prepared in the presence of mediators i.e., P.W.2 and
L.W.1, P.Vengaiah, duly obtained their signatures over the said document.
Out of four samples, lifted by P.W.1, one sample was handed over to A-1 to retain the same for safe custody. Out of three remaining samples collected by P.W.1, one sample was forwarded to Assistant Director of Agriculture (FCO) Fertiliser Control Lab, Warangal, on 23-12-2000 through Navatha
Courier Service. Upon analysis of said sample, a report, dated 24-3-2001 was issued that sample does not contain prescribed standards of nutrient content and found value at 20.45% instead of 33%. A copy of analyst’s report was served by P.W.1 upon A-1 on 30-3-2001. At the same time, the stock register, bill books were also seized by P.W.1 by securing presence of P.W.2 and L.W.1, P.Vengaiah under cover of another mediators’ report, dated 30-3-2001, scribed at about 4-00 P.M., at the premises of A-1. Thereafter
P.W.1 issued show cause notices to A-1 to A-3 on 30-4-2001 and received their explanations found to be not satisfied. Finally, P.W.1 having obtained sanction orders to prosecute A-1 to A-3, preferred the present complaint against all accused persons, requesting the Court to punish them of alleged offence.
2.On a careful perusal of entire material placed on record, the complaint was taken on file as per provisions of Sections 190 and 200 Cr.P.C., of the offence alleged under Section 7 (2) of Essential Commodities Act, 1995 R/W
Order 19 (1) (a) of Fertiliser (Control) Order, 1985 against A-1 to A-3 and ordered summons.
3.In response to service of summons, A-1 to A-3 appeared themselves, upon which they were furnished with copies of documents as stipulated under law.
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4.All accused persons (A-1 to A-3) were examined under Section 251
Cr.P.C., of the offence alleged against them punishable under Section 7 (2) of
Essential Commodities Act, 1995 R/W Order 19 (1) (a) of Fertiliser (Control)
Order, 1985, read over and explained to them in Telugu language, to which they pleaded not guilty, and claimed to be tried.
5.The Complainant commenced trial proceedings in the form of examining P.W.1 and P.W.2, supported by exhibiting documents, Exs.P-1 to
P-7 respectively. Upon closure of Complainant’s side evidence, A-1 to A-3 were examined under Section 313 Cr.P.C. about the incriminating evidence appearing against them from Complainant’s side evidence and they denied same. A-1 to A-3 did not choose to examine any defence witness nor mark documents on their behalf.
6.Heard arguments of learned Assistant Public Prosecutor on behalf of the complainant and Sri I.V.Raama Sastry, learned Counsel defending A-1 to
A-3 respectively.
7.Now the point for determination is:--
“Whether the complainant succeeded in establishing his
contention levelled against A-1 to A-3 beyond all reasonable
doubt that they were guilty of manufacturing and sale of Ambika
Maha Zinc Sulphate, which was found to be below prescribed
standards at the time of visit of P.W.1 to the shop of A-1 on
23-12-2000 at about 11-00 A.M?”
8.Point: In order to prove allegations levelled against all accused persons, the complainant examined himself as P.W.1 and also relied upon independent witness as P.W.2 said to be present along with him. P.W.1, the
Mandal Agricultural Officer, Vinjamur in his testimony, contended that on 23-12-2000, he inspected the premises of A-1 known as Sri Venkataramana
Fertilisers and Pesticides, Vinjamur at about 11-00 A.M., and found presence of A-1 in the said shop, who was transacting business. According to P.W.1, immediately he secured presence of L.W.1, P.Vengaiah and P.W.2 as mediators and in their presence, drawn sample of Ambika Maha Zinc 33%
Zinc 38 packets of 300 Grams each and lifted four packets for the purpose of forwarding the same to Analysis. P.W.1 added that four plastic empty tins 4 were secured by him and inserted four Ambika Maha Zinc packets in those four tins and affixed seals over the same by serving Form-K notice upon A-1 under Ex.P-1. To that effect, a mediators’ report as Ex.P-2 was scribed in the presence of L.W.1, P.Vengaiah and P.W.2 and obtained their signatures.
9.Further, according to P.W.1 on 23-12-2000, one sample was forwarded to Assistant Director of Agriculture Fertiliser Control Lab, Warangal, through
Navatha transport and another sample was deposited with Joint Director of
Agriculture. The sample forwarded by P.W.1 was said to be analysed on 24-3-2001 by Assistant Director of Agriculture Fertiliser Control Lab,
Warangal and issued his report under Ex.P-3 opining that the sample of Zinc
Sulphate found to be shortage of nutrient contents as 20.45% than the prescribed specification at 33%. P.W.1 further added that soon after receipt of Ex.P-3, a copy of the same was served upon A-1 on 30-3-2001 and seized invoice, bill books and stock register under Ex.P-5 in respect of stock of Maha
Zinc 33% Zinc fertilizer packets received by A-1 from A-2 and A-3.
10.The effort made by P.W.1 in relying upon testimony of P.W.2 for sufficient corroboration was found to be unsuccessful as P.W.2 clearly disputed of making his presence at the shop of A-1 initially on 23-12-2000 at the time of seizure of sample under mediators’ report marked as Ex.P-2.
P.W.2 further added that he had no occasion to visit the shop of A-1 along with P.W.1 in connection with seizure of invoice, bill books and stock register as alleged by P.W.1 under cover of mediators’ report marked as Ex.P-4.
On the contrary, P.W.2 introduced a different theory that his signatures marked as Ex.P-6 and Ex.P-7 were obtained by P.W.1 by visiting his shop about 15 years ago. According to P.W.2, he was informed by P.W.1 that a sample was drawn from his shop and he had obliged the request of P.W.1, duly contributing his signatures marked as Exs.P-6 and P-7 over scribed document.
11.The learned Counsel defending all accused persons subjected to P.W.1 to the test of lengthy cross-examination trying to pick up severe drawbacks from his testimony. Initially P.W.1 was questioned about his authority to visit 5 the shop of A-1 and to make the inspection in the capacity of Fertiliser
Inspector. Order 27 of Fertiliser (Control) Order, 1985 deals with appointment of Fertiliser Inspector by the State Government in the form of notification to be published in official gazette, and the said notification was also defines the limits of local area to be inspected by the Fertiliser Inspector as his jurisdiction. However, P.W.1 clearly admitted that he did not file any documentary proof notifying his appointment as Fertiliser Inspector including conferment of territorial jurisdiction over Vinjamur Village. However, P.W.1 contended that during the year 2000 at the time of his inspection to the shop of A-1, he was acting as Mandal Agricultural Officer-Cum Fertiliser Inspector.
Above said oral contentions of P.W.1 are lacked by sufficient documentary proof, which clearly points out that P.W.1 had failed to comply with Order 27 of Fertiliser (Control) Order, 1985.
12.The attention of P.W.1 was specifically invited on crucial aspect of lifting samples of Maha Zinc Sulphate from the shop of A-1. As seen from the testimony of P.W.1, he had lifted four Maha Zinc packets of 300 grams each, duly serving Form-K upon A-1 by scribing proceedings as mediators’ report, i.e., Ex.P-2. According to P.W.1 soon after lifting four samples from the shop of A-1, one sample was forwarded to Assistant Director of Agriculture
Fertiliser Control Lab, Warangal, through Navata transport. Interestingly the said sample was analysed on 24-3-2001, i.e., after lapse of three months, as per the report marked as Ex.P-3.
13.The learned Counsel defending all accused persons contended that
Order 30 of Fertiliser (Control) Order, 1985 was not followed by the said
Laboratory and hence, report issued under Ex.P-3 is of no relevance. For better appreciation of evidence of P.W.1, Order 30 of Fertiliser (Control)
Order, 1985 is reproduced herein:
Time Limit for analysis, and communication of result.
(1) Where sample of a fertiliser has been drawn, the same shall be dispatched along with a memorandum in Form K to the laboratory for analysis within a period of seven days from the date of its drawal.
6 (2) The laboratory shall analyse the sample and forward the analysis report in Form L within * 30 days from the date of receipt of the sample in the laboratory to the authority specified in the said memorandum. (3) The authority to whom the analysis report is sent under sub- clause (2) shall communicate the result of the analysis to the dealer/manufacturer/importer/pool handling agency from whom the sample was drawn within * 15 days from the date of receipt of the analysis report of the laboratory.
A plain reading of above order makes it clear that any sample drawn by
Fertiliser Officer shall reach the lab within a period of 7 days from the date of its drawal. Thereafter the said lab has to analyse the sample and forward the analysis report in Form-L within 30 days from the date of receipt of sample.
Finally the copy of analysis report to be communicated to dealer/manufacturer or importer within a period of 15 days from the date of receipt of analysis report. As seen from replies furnished by P.W.1 coupled with reading of analysis report, marked as Ex.P-3 makes it clear that the sample was received on 24-3-2001, i.e., after lapse of 32 days soon after lifting of sample by P.W.1 from the shop of A-1. Adding to that, the sample of
Zinc Sulphate was analysed at the Laboratory after lapse of 57 days, it clearly violates the stipulated period as referred in Order 30 of Fertiliser (Control)
Order, 1985. Therefore, the contention raised by the learned Counsel for accused that the complainant had failed to comply Order 30 of Fertiliser (Control) Order, 1985 holds merit.
14.Next contention raised by the learned Counsel defending all accused persons that A-2 and A-3 clearly replied their written submissions soon after communication of copy of Ex.P-3 upon them, however, P.W.1 had failed to mark those written statements submitted by A-2 and A-3, clearly making their defence that similar batch of Zinc Sulphate Packets lifted by the
Assistant Director of Agriculture, Bapatla were found to be under requisite standard values as per analysis report issued by F.C.O. Laboratory, Bapatla.
For the reasons best known, P.W.1 having made reference about service of show cause notices upon A-2 and A-3 had altogether failed to mark written 7 explanations offered by A-2 and A-3 as per their letters, dated 2-7-2001 and 3-7-2001 respectively. The defence raised by A-2 and A-3 in above letters clearly make reference about manufacture of Zinc Sulphate and lifting of a similar sample by Assistant Director of Agriculture, Bapatla on 12-2-2001 said to be analysed by F.C.O. Laboratory, Bapatla and its composition was found to be within prescribed limits.
15.The learned Counsel defending all accused persons argued that the inordinate delay of testing sample forwarded by P.W.1 at F.C.O. Laboratory,
Warangal had resulted in recording low values at 20.45% than that of prescribed specifications. The attention of P.W.1 was also invited on the above aspect. While facing the test of cross-examination, P.W.1 clearly denied the attribution of motives against him, in forwarding the sample with one month delay to FCO Laboratory, Warangal. Admittedly, even as per testimony of P.W.1 the step initiated by him in forwarding sample of Zinc
Sulphate to F.C.O. Laboratory, Warangal had failed to meet the prescribed time limits as defined under Order 30 of Fertiliser (Control) Order, 1985.
Since the act of P.W.1 had failed to comply within the stipulated period of standards prescribed under Orders of Fertiliser (Control) Order, 1985, he cannot claim that A-1 to A-3 were guilty of indulging themselves in manufacture and sale of Maha Zinc Sulphate without maintaining prescribed standards as defined under the said Order. Since the solitary testimony of
P.W.1 as placed on record had failed to withstand the test of cross- examination coupled with his failure to comply the mandatory procedure stipulated under the Fertiliser (Control) Order, 1985, other vital issues raised by the learned Counsel for accused persons at the time of arguments need no reference for discussion.
16.The learned Counsel for accused persons to support his contention relied upon following reported citations.
1) M/s.Godavari Fertilizers and Chemicals Ltd., Nellore Region
represented by Uppalapu Veera Venkata Satyanarayana Raju v.
State of A.P., represented by the Assistant Director of Agriculture
(Regular), Parachur, 2004 (2) ALT (Crl.)669 (A.P.). His Lordship while 8 setting aside the conviction passed by the trial Court of similar case filed under Section 7 of Essential Commodities Act, 1955 for the contravention of
Clause 19 (1) (a) (c) (ii) (iii) of Fertiliser (Control) Order, 1985 had elaborately discussed Rule 30 of Fertiliser (Control) Order, 1985. His Lordship clearly discussed the importance of forwarding the sample within 7 days as contemplated under Rule 30 (1) of Fertiliser (Control) Order, 1985 and contravention of the same has to be given benefit in favour of accused.
2) Visakha Agro Chemicals (P) Limited, Visakhapatnam and Others v.
Fertiliser Inspector-cum-Assistant Director of Agriculture (Regular)
Vizag and Another, 1997 (1) ALD (Crl.) 502 (AP). His Lordship while setting aside the conviction passed by trial Court had elaborately discussed the importance of Section 293 Cr.P.C., to examine the author of analysis report.
3) Farmers Service Co-operative Society, Kothapally, Pappanapet
Mandal, Medak District and others v. State Government of A.P., 2006
(1) ALD (Crl.) 906 (AP). His Lordship while quashing the proceedings under
Section 482 Cr.P.C., against accused person therein had an occasion to discuss the specific procedure to be observed by Fertiliser Inspector while lifting the samples. His Lordship observed that:
“Therefore, it is the duty of the complainant to make mention of the procedure adopted for collection of samples in the complaint. Atleast the complaint must contain the recitals to the effect that the sample was collected duly following the procedure prescribed in Schedule II of the Fertiliser (Control) Order. Even such recitals are also not found in the complaint filed in this case. In the absence of such recitals, I am unable to hold that there is prima facie material furnished to the Court to show that the sample was collected in the manner prescribed under Part-A, Schedule II of Fertiliser (Control) Order, 1985. Such acts on the part of the Fertiliser Inspector cannot be presumed in order to take cognizance of the offence for which minimum punishment is prescribed.”
17.Coming to facts reported on record, P.W.1 had clearly failed to give convincing reason for not marking written explanations received from A-2 and A-3 soon after service of analysis report under Ex.P-3 upon them. The specific defence raised by A-2 and A-3 as per their written explanations, 9
dated 2-7-2001 and 3-7-2001, that similar sample of Zinc Sulphate product
lifted by Assistant Director of Agriculture-cum-Fertiliser Inspector, Bapatla was found to be under prescribed standards and purposeful act of P.W.1 to conceal the defence raised by A-2 and A-3 in writing clearly attracts the legal proposition laid down in reported citations as referred supra.
18.Upon careful scrutiny of oral as well as documentary proof placed on record coupled with legal proposal laid down in reported citations as referred supra, would altogether lead to a conclusion that allegations levelled against
A-1 to A-3 to be guilty of manufacturing and sale of Ambika Maha Zinc 33% packets by violating the order of Fertiliser (Control) Order, 1985 in above proceedings stand not established beyond all reasonable doubt. Therefore, this Court comes to a conclusion that the complaint filed by P.W.1 fails and all accused persons are entitled for acquittal.
19.In the result, A-1 to A-3 are found not guilty under Sec.255 (1) Cr.P.C., and acquitted of the offence alleged under Section 7 (2) of Essential
Commodities Act, 1995 for contravention of Order 19 (1) (a) of Fertiliser (Control) Order, 1985 as preferred by Assistant Director of Agriculture-cum-
Fertiliser Officer, Vinjamur. Bail bonds executed by A-1 to A-3 and surety bonds executed on their behalf shall stand cancelled.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in the Open Court on this the 19th day of October, 2015.
Sd/- M.Guru Nath
II Addl. Judicial Magistrate of First Class,
Nellore.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION: -- PW.1: N.Rami Reddy, Mandal Agricultural Officer-cum-Fertiliser Officer. PW.2: Ch. Malyadri
FOR DEFENCE: -- NONE.
DOCUMENTS MARKED
FOR PROSECUTION:-- Ex.P-1: Copy of Form K and Form J. Ex.P-2: Mahazarnama, dated 23-12-2000. Ex.P-3: Analysis Report, dated 24-3-2001. Ex.P-4: Mahazarnama, dated 30-3-2001.
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Ex.P-5: Invoice No.140003762, dated 31-10-2000.
Ex.P-6: Signature of P.W.2 in Mahazarnama, dated 23-12-2000.
Ex.P-7: Signature of P.W.2 in Mahazarnama, dated 30-3-2001.
FOR DEFENCE: - N I L…
MATERIAL OBJECTS MARKED ON BEHALF OF BOTH SIDES
.. N I L…
Sd/- M.Guru Nath
II AJMFC,
NELLORE.