Full Judgment
S.K. Agarwal, J.
1. Heard learned counsel for the applicant and learned AGA.
2. This application has been filed with a prayer to quash the criminal proceeding under Section 3/7 of the Essential Commodities Act pending in the Court of 1st Additional Chief Judicial Magistrate, Budaun vide Case No. 2971 of 1999 -State of U.P. v. Yogesh Kumar and another on the ground that no case is made out against this applicant. It is also prayed that further proceeding may be stayed. It has also orally been prayed that if this Court is not convinced with the arguments of the learned counsel for the applicant then non-bailable warrant issued against the applicant may be quashed and he may be allowed to appear before the Court concerned.
3. Taking up the first two prayers initially I am of the view that proceeding cannot be quashed at this stage. The questions raised before the Court rest on the decision of various facts. Disputed questions of fact cannot be gone into by this Court at this stage because determination of his contention is subject to the recording and appreciation of the evidence. In this view of the matter the first contention of the learned counsel for the applicant has no merit and it is accordingly discarded. Coming to the next submission of the learned counsel for the applicant that he cannot be prosecuted under Clause 19 of the Fertiliser (Control) Order, 1985 for breach of provisions contained in Clause 23 of the said Control Order. He alleges that it is not reported in the first information report that the sub-standard article which was recovered from the shop of the applicant was not in conformity to the specifications prescribed under Sub-clauses (1), (2) and (3) of Clause 23 of the aforesaid Order. His case is that it was not substandard but was a non-standard fertiliser. Clause 23 of the aforesaid Order deals with the disposal of non-standard fertiliser. For ready reference Sub-clauses 1(a), (b) and (c) of Clause 23 of the aforesaid Order are quoted as under :
(a) the container of such non-standard fertiliser is conspicuously superscribed in red colour with the words 'non-standard' and also with the sign 'X'; and
(b) an application for the disposal of non-standard fertiliser in Form H is submitted to the registering authority to grant a certificate of authorisation for sale of such fertilisers and a certificate of authorisation with regard to their disposal and price is obtained in Form I;
(c) such non-standard fertiliser shall be sold only to the manufacturers of mixtures of fertilisers or special mixtures of fertilisers or research farms of Government or universities or such bodies.
4. According to these clauses a non-standard fertilisers can be sold by any licensee. The requisite is that it must not be an adulterated fertiliser. Sub-clause (1)(a) of Clause 23 further requires a retailer or whole-seller of such a non-standard fertiliser to print or publish on the wrapper in which such fertiliser is contained in red colour words 'non-setandard' and also sign 'X'. Sub-clause (1)(b) of Clause 23 of the aforesaid Order requires such a dealer to obtain a certificate of authorisation for sale of such fertiliser regarding its storage as well as regarding its disposal and price in Form I. Sub-clause (1)(c) of Clause 23 of the aforesaid Order further creates a kind of a bar, It requires that such non-standard fertiliser shall be sold only to the manufacturers of mixtures of fertiliser or special mixtures of fertilisers or research farms of Government or Universities or other such bodies. When read together these clauses apparently non-standard fertiliser is not open to sale to the farmers or public in general. The sale of such non-standard fertiliser can be made only to the authorities specified in (b) and (c) of Sub-clause
(1) of Clause 23 of the aforesaid Order. Apart from that Sub-clauses
(2) and
(3) of Clause 23 also prescribe certain other conditions. Regarding fixation of price of such non-standard fertiliser the registering authority after satisfying itself that the sample taken is a representative one may fix its price. While doing so he will also take into consideration the nutrient contents in the sample determined on the basis of a chemical analysis of such non-standard fertiliser. Sub-clause
(3) of Clause 23 of the aforesaid Order entitles the Central Government to publish a notification in the official gazette and subject to the conditions prescribed therein for persons who are agent to comply with the condition laid down in (a) and (b) of Sub-clause
(1) of Clause 23 may exempt the handling agents. As earlier stated, in nut shell, the non-standard fertiliser cannot be sold to any individual farmer or public at large. It can be sold only in accordance with clause 23(1)(c) of the aforesaid Order alone.
5. From perusal of these Sub-clauses (a), (b), (c) of clause 28 it is apparent that the non-standard fertiliser can be sold only to these authorities who are specified in Clause 23(1)(c) subject to the condition prescribed in Clause 23(1)(a) of the said Order. The purpose behind imposing the above sanction on sale of non-standard fertiliser to the institutions specified in Sub-clause (1)(c) is to provide such institutions, who are engaged in the study of fertiflisers, to enable them to buy fertilisers at much lower price than the price of the standard fertiliser for research. It is so done with a view to encourage research. The person selling such fertiliser has to print on its container (wrapper) 'sub-standard' and 'X' in red ink. If these conditions are complied with there cannot be any prosecution under Clause 19 of the aforesaid Order of any person for selling non-standard fertiliser. If these conditions are not fulfilled by the dealer then he shall certainly be liable to prosecution. It is contended that there is absolutely no evidence before the Court to warrant his trail. This question requires examination of evidence, which may be done by the trial Court alone after evidence of the witnesses is taken or at the stage of charge. The question right now does not arise, as the prosecution has come up with a case that it is storage for sale of sub-standard fertiliser. It shall be positively a sub-standard fertiliser if the conditions laid down in Clause 23(1) are not fulfilled. Learned counsel for the applicant still may raise this issue before the trial Court at an appropriate stage.
6. The last submission of the learned counsel for the applicant that execution of non-bailable warrant be stayed and the applicant may be permitted to appear befpre the Court below. Apart from that it is also urged that if an accused is willing to surrender himself it shall not be proper to send him to jail. He must be given an opportunity to do so. In view of the above discussion it shall be expedient in the interest of justice that non-bailable warrant issued against the applicant by the Court below be stayed. In the result, execution of non-bailable warrant is stayed for three weeks. The applicant is directed to appear before the trial Court and make an application for bail, which shall be considered as expeditiously as possible.
With these directions this application is finally disposed of.