Bookmark
PDF
Share
CaseIQ

The Director, Agriculture, Punjab & Others v. Narinder Pathak & Others

Punjab & Haryana High Court

Oct 13, 1999

Judgment

Subsequent
References

CaseIQ

Smart Summary (Beta)

Opinion Summary — Clause 19, Fertilizers Control Order, 1985

Factual and Procedural Background

This opinion was delivered by G.S. Singhvi, J., in an appeal arising from an order dated 8 October 1997 by a Division Bench that framed the question whether Clause 19 of the Fertilizers Control Order, 1985 ("the 1985 Order") was violative of Articles 19 and 21 of the Constitution of India.

At the hearing the Deputy Advocate General pointed out that a learned Single Judge had earlier, by an order dated 16 September 1996 (in the title case Tarsem Singh v. Union of India, 1996 (3) RCR 633), allowed a batch of writ petitions including C.W.P. No. 7566 of 1996 (Narinder Pathak v. Union of India) and struck down Clause 19 of the 1985 Order as being ultra vires Articles 19 and 21 and quashed criminal cases registered under Section 7 of the Essential Commodities Act, 1955.

That Single Judge order was reversed by a Division Bench in L.P.A. No. 1039 of 1996 — The Director, Agriculture, Punjab v. Gurmukh Mal Shibba Mal, 1997 (4) R.C.R 780 — and the Division Bench's judgment became final. The State (through the Deputy Advocate General) argued that the vires question had therefore become purely academic, and opposed the Single Judge's reasoning that Clause 19 was vague or denied an opportunity for independent testing of samples.

The present appeal challenged the Single Judge's declaration and the court considered the text of Clause 19 (Restriction on manufacture, sale and distribution of fertilizers) and the respective submissions. The court ultimately reviewed the Division Bench's reversal, referred to Supreme Court authorities relied upon by that Division Bench, and reached a final decision setting aside the Single Judge's order and dismissing the writ petition filed by respondent No.1.

Legal Issues Presented

Whether Clause 19 of the Fertilizers Control Order, 1985 is violative of Articles 19 and 21 of the Constitution of India.
Whether Clause 19 is vague or unreasonable because it does not provide an opportunity to a dealer to get a seized sample independently analysed (i.e., whether absence of a specific right to independent analysis violates procedure established by law or the accused's right to an effective defence).

Arguments of the Parties

State / Appellant (as represented at hearing)

Pointed out that the Single Judge's order of 16 September 1996 (Tarsem Singh and related petitions) had been reversed by the Division Bench in Gurmukh Mal Shibba Mal and that the Division Bench judgment had become final.
Argued that Clause 19 cannot be declared unconstitutional merely because it lacks a provision for independent analysis of prosecution samples, or on the ground that it is vague or unreasonable.
Submitted that procedural safeguards and the accused's right to defence under the criminal process (including Section 293 Cr.P.C.) provide adequate protection to a person prosecuted under Clause 19.

Respondent No. 1 (as recorded)

Supported the Single Judge's order striking down Clause 19 and sought restoration of that declaration.
Argued that the writ petitioner (respondent No.1) should have the proceedings against him quashed because he would not get an effective opportunity of defence without an express right to independent analysis of the sample.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tarsem Singh v. Union of India, 1996 (3) R.C.R. 633 (Single Judge order)	Held (by the Single Judge) that Clause 19 of the Fertilizers Control Order, 1985 was vague, unreasonable and violative of Article 19 read with Article 21; quashed proceedings under Section 7 of the Essential Commodities Act for petitioners in the batch (including Narinder Pathak).	The court records the Single Judge's holding and reasoning, but ultimately sets that order aside in this appeal.
Narinder Pathak v. Union of India (C.W.P. No. 7566 of 1996) — one of the writ petitions in the Single Judge's order	Part of the batch of petitions in which Clause 19 was struck down by the Single Judge.	Referenced as one of the matters affected by the Single Judge's order; the Single Judge's order was later reversed and is set aside in the present appeal.
The Director, Agriculture, Punjab v. Gurmukh Mal Shibba Mal, L.P.A. No. 1039 of 1996 — 1997 (4) R.C.R. 780 (Division Bench)	Held that Clause 19 could not have been declared unconstitutional on grounds of vagueness or unreasonableness; emphasized procedural safeguards and the accused's ability to present defence (including recourse under Section 293 Cr.P.C.).	The present court agrees with and adopts the Division Bench's reasoning and holds that Clause 19 does not suffer constitutional infirmity.
Collector of Customs, Madras v. Nathella Sampathu Chetty, 1996 (3) S.C.R. 786	Cited by the court as one of the Supreme Court authorities bearing on constitutional review and related principles (as part of the body of Supreme Court law relied on).	Referred to as part of the Supreme Court authority supporting the view that Clause 19 should not be invalidated on the grounds advanced by the Single Judge.
The State of Rajasthan v. The Union of India, 1978 (1) S.C.R. 1	Cited as a Supreme Court authority relevant to the principles governing constitutional review (as relied upon by the Division Bench).	Used by the court in support of the conclusion that Clause 19 is not unconstitutional.
Tamil Nadu Education Department Ministerial and General Subordinate Service Association v. State of Tamil Nadu, 1980 (1) S.C.R. 1026	Cited as a Supreme Court authority relevant to the approach courts should adopt when reviewing legislation.	Relied upon by the court in concluding that Clause 19 should not be struck down on the grounds suggested by the Single Judge.
R.K. Garg v. Union of India, 1981 (4) S.C.C. 675	Principle (quoted at length): courts should afford greater latitude to economic legislation; possible crudities, inequities or possibilities of abuse are not by themselves grounds for invalidating economic legislation; judicial deference to legislative judgment in economic regulation.	The court relied on the principle articulated in R.K. Garg to reject the Single Judge's reliance on the possibility of misuse as a ground for striking down Clause 19.
Secretary of Agriculture v. Central Reig Refining Co., 1950 (94) L.Ed. 381 (United States case cited within R.K. Garg)	Cited in the R.K. Garg quote to illustrate the international judicial approach to economic regulation and deference to legislative choices.	Appears in the R.K. Garg passage quoted by the court; used to demonstrate the broader principle of judicial deference in economic legislation.

Court's Reasoning and Analysis

The court's analysis proceeds in the following steps, as recorded in the opinion:

The court first noted the Single Judge's factual and legal determination that Clause 19 was vague and unreasonable because it did not expressly give a dealer the right to send a seized sample for independent analysis; the Single Judge therefore struck down Clause 19 as violative of Article 19 read with Article 21 and quashed related prosecutions.
The court observed that the Division Bench in Gurmukh Mal Shibba Mal had reversed that Single Judge order after extensively referring to the Fertilizers Control Order, the Act and judicial precedents, and concluded it was premature to declare Clause 19 unconstitutional because procedural safeguards exist under the criminal process (including the right of the accused to set up defence and rely on Section 293 Cr.P.C.), and an accused can adduce evidence, cross-examine the public analyst and, as a last resort, request the court to send a third sample to another laboratory.
The present court accepted the Division Bench's view as correct and grounded in the law laid down by the Supreme Court. The court emphasized that absence of a specific provision in the 1985 Order for independent analysis does not violate "procedure established by law" and that the prosecuted person can set up an appropriate defence in accordance with Section 293 Cr.P.C.
The court rejected the Single Judge's reliance on the "possibility of misuse" of Clause 19 as a basis for striking it down. The court held this approach was contrary to the Supreme Court's rulings (including R.K. Garg) which counsel judicial deference to legislative judgments in economic matters and require courts to examine legislation by the generality of its provisions rather than strike it down for possible abuses or crudities.
On the basis of the Division Bench's reasoning and the Supreme Court authorities cited, the court concluded that Clause 19 does not suffer from any constitutional infirmity.

Holding and Implications

Final Disposition: Appeal allowed; the Single Judge's order dated 16 September 1996 is set aside.

Implications:

The writ petition filed by respondent No.1 (one of the petitioners in the batch whose challenge led to the Single Judge's order) is dismissed.
Clause 19 of the Fertilizers Control Order, 1985 is held not to suffer from constitutional infirmity as regards the grounds of vagueness, unreasonableness or absence of an express right to independent analysis raised before the court.
The court relied on existing Supreme Court authority and the Division Bench decision in Gurmukh Mal Shibba Mal; the opinion does not purport to establish a novel precedent beyond adopting and applying those earlier authorities. The decision has the immediate effect of restoring the validity of Clause 19 and removing the relief granted by the Single Judge in the cited writ petitions.

Appeal allowed.

Show all summary ...

G.S Singhvi, J.:— This appeal has been placed before us in view of the order dated 8th October, 1997 passed by the Division Bench for deciding the following question of law:—

“Whether Clause 19 of the Fertilizers Control Order, 1985 is violative of Articles 19 and 21 of the Constitution of India?

2. At the hearing, learned Deputy Advocate General pointed out that the order dated 16th September, 1996 passed by the learned Single Judge (with the title case - Tarsem Singh v. Union of India, 1996 (3) Recent Criminal Reports 633 vide which he allowed a bunch of writ petitions including C.W.P No. 7566 of 1996 Narinder Pathak v. Union of India filed by respondent No. 1 and struck down Clause 19 of the Fertilizers Control Order, 1985 (hereinafter described as ‘the 1985 Order’) by declaring it to be ultra vires to Articles 19 and 21 of the Constitution of India and also quashed the criminal cases registered against the writ petitioners under Section 7 of the Essential Commodities Act, 1955 (for short, the Act) has been reversed by the Division Bench in L.P.A No. 1039 of 1996 - The Director, Agriculture, Punjab v. Gurmukh Mal Shibba Mal, 1997 (4) R.C.R 780 and as the judgment of the Division Bench has become final, the question relating to vires of Clause 19 of the 1985 Order should be treated as purely academic. He then argued that Clause 19 cannot be declared unconstitutional simply because it does not provide for an opportunity to the dealer to seek an independent analysis of the sample collected by the prosecution or on the ground-that it is vague or unreasonable. Learned counsel representing respondent Page: 527No. 1 supported the impugned order and argued that the declaration granted by the learned Single Judge should be restored and the proceedings pending against his client should be quashed because he will not get an effective opportunity of defence.

3. We have given serious thought to the respective submissions. Clause 19 of the 1985 Order reads as under:—

“Restriction on manufacture, sale and distribution of fertilizers:—

(1) No person shall himself or by any other person on his behalf—

(a) manufacture for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertilizer, which is not of prescribed standard;

(b) manufacture for sale, sell, offer for sale, stock or exhibit for sale or distribute any mixture of fertilizers (or mixture of NPK fertilizers, mixture of micro-untrient fertilizers and combination thereof) which is not of prescribed standard (subject to such limits of permissible variation as may be specified from time to time by Central Government) or special mixtures of fertilizers which (xxx) does not conform to the particulars specified in the certificate of manufacture granted to him under this order in respect of such special mixture;

(i) any fertilizer the container whereof is not packed and marked in the manner laid down in this order;

(ii) any fertilizer which is a limitation (an imitation?) or a substitute for another fertilizer under the name of which it is old;

(iii) any fertilizer which is adulterated;

Explanation:— A fertilizer shall be deemed to be adulterated, if it contained any substance addition of which is likely to eliminate or decrease its nutrient contents or make the fertilizer not conforming to the prescribed standard;

(iv) any fertilizer, the label or container whereof bears the name of any individual firm or company purporting to be manufacturer of the fertilizer, which individual, firm or company is fictitious or does not exist:

(v) any fertilizer, the label or container whereof or anything accompanying therewith bears any statement which makes a false claim for the fertilizer or which is false or misleading in any material particular;

(vi) any substance as a fertilizer which substance is not, in fact, a fertilizer;

(vii) any fertilizer without exhibiting the minimum guaranteed percentage by weight of plant nutrient.”

4. Respondent No. 1 and other writ petitioners challenged the constitutional validity of Clause 1 on the ground that it is vague and unreasonable, in-as-much as, it does not provide for an opportunity to the dealer to get the sample tested in a laboratory of his choice. Learned Single Judge referred to some of the provisions contained in the Insecticides Act, 1968; Prevention of Food Adulteration Act and Drugs and Cosmetics Act and held that Clause 19 of the 1985 Order is vague and unreasonable and is violative of Article 19 read with Article 21 of the Constitution of India. The observations made by the learned Single Judge in this respect are extracted below:—

“Summing up, Regulation 19 of the impugned Fertilizer Control Order, 1985 is a piece of unfair legislation. It has given an arbitrary power to the Government to prosecute a person, who cannot show in a Court of Law that the report of the Public Analyst who has declared that sample of the fertilizer as ‘substandard’, could possibly fall in an error leading to his conclusions while testing the sample. It has also snatched a valuable right of a person who deals in the trade of fertilizer and sells the sealedand stitched bags supplied to him by the manufacturer. Even this piece of legislation has made such dealer punishable who has properly stored the essential commodities as such ‘Fertilizer’, I am of the opinion that Regulation 19 of the impugned Fertilizer Control Order, 1985 is violative of Article 19 read with Article 21 of the Constitution of India and in its present Page: 528shape cannot be allowed to operate/stand and as such Regulation 19 of the Control Order is hereby struck down. Thus the first proposition is answered in the affirmative.”

5. While reversing the order of the learned Single Judge in Gurmukh Mal Shibba Mal's case, 1997 (4) RCR 780 (supra) the Division Bench extensively referred to the provisions of the Act, the 1985 Order and judicial precedents and then held that Clause 1 could not have been declared unconstitutional on the ground that it is vague or unreasonable. While summing up the case, the Division Bench observed as under:—

“In case under scrutiny, a sample of fertilizer was taken by the authorities as per provisions of Control Order which on analysis was found to be of non-standard grade. With a view to determine the guilty proceedings have been initiated according to law. Evidence is yet to be adduced by the complainant/the prosecution. It is thereafter petitioner is to be given a right of defence. It indeed would be pre-mature to judge the ultimate decision which the Court may take. An accused person of course has a right to set up defence in terms of section 293 Cr. P.C What would be the nature of defence can again be a matter of sheer guess. In any case one could visualise that petitioner would adduce all such evidence so as to prove his innocence. May be he examines another expert to cross-examine the official witness or makes reference to some celebrated authority on law relevant to the point in controversy to establish that the conclusion arrived at by the analyst is indeed impermissible and as a last resort can make out a case for the Court to send the third sample for its analysis by another laboratory. With these safeguards at his command it can be stated that procedure prescribed is neither arbitrary nor unreasonable nor unfair. On examining the matter on the touchstone of Articles 19(1) and 21 and various decisions of the apex Court, we are of the view that Fertilizer Control Order, 1985 has been enacted by competent Legislature and the same does not violate any express provision of Constitution of India. Resultantly, we accept these appeals, set aside the judgment of Shri R.L Anand. J. thereby order dismissing the writ petition.”

6. In our opinion, the view taken by the Division Bench on the constitutional validity of Clause 19 of the 1985 Order, which is based on the law laid down by the Supreme Court, is correct and there is no warrant for us to take a different view.

7. We are further of the view that the absence of a specific provision in the 1985 Order giving right to the dealer to seek an independent analysis of the sample collected by the prosecution does not violate the procedure established by law and the person, who is prosecuted, can set up his appropriate defence in accordance with the provisions of section 293 of the Code of Criminal Procedure.

8. Learned Single Judge has hinted at the possible misuse of Clause 19 of the 1985 Order and has made this one of the grounds for striking down the said Clause with great respect, we are unable to approve this approach because it is contrary to the law laid down by the Supreme Court in Collector of Customs, Madras v. Nathella Sampathu Chetty, 1996 (3) S.C.R 786; The State Of Rajasthan v. The Union Of India, 1978 (1) S.C.R 1; Tamil Nadu Education Department Ministerial and General Subordinate Service Association v. State of Tamil Nadu, 1980 (1) S.C.R 1026 and R.K Garg v. Union of India, 1981 (4) S.C.C 675. In the last mentioned case, their Lordships of the Supreme Court, while examining the constitutionality of the provisions of the Special Bearer Bonds (Immunities and Exemptions) Act, 1981, held as under:—

“Laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights-are involved… The Court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract proportions and do not relate Page: 529to abstract symmetry, that exact wisdom and nice adaptation of remedy are not always possible and that ‘judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation, but on that account alone it cannot be struck down as invalid. The Courts cannot, as pointed out by the United States Supreme Court in Secy. of Agriculture v. Central Reig Refining Co., 1950 (94) L.ed 381, be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.”

9. On the basis of above discussion, we hold that Clause 19 of the 1985 Order does not suffer from any constitutional infirmity and the view taken by the Division Bench in Gurmukh Mal Shibba Mal's case (supra) is correct.

10. For the reasons mentioned above, the appeal is allowed. The order dated 16th September, 1996 passed by the learned Single Judge is set aside and the writ petition filed by respondent No. 1 is dismissed.