A.S Parmar v. State Of Punjab And Others

Order

1. The appellant herein is a Senior Manager in Indian Farmers' Fertilizers Cooperative Limited (in short “Iffco”) at Kandla in the State of Gujarat. The said Society is engaged in manufacturing and selling of fertilizer. The Government of India in exercise of power under Section 3 of the Essential Commodities Act, 1955 has framed an order known as the Fertilizer (Control) Order, 1985 for controlling the quality of fertilizer. It appears that the samples of fertilizer sold by the appellant was taken from stitched bags of fertilizer and thereafter sent to laboratory for analysis. It is alleged that the laboratory reported that the fertilizer is sub-standard. It is further alleged that on the strength of the said report the respondent threatened the appellant to prosecute him. It is under such circumstances the appellant filed a petition under Article 226 of the Constitution of India before the Punjab and Haryana High Court challenging the validity of Clause 19 of the Fertilizer (Control) Order. The case of the appellant was that since Clause 19 does not permit an accused a right to adduce evidence to contradict the report of the public analyst, the said clause is ultra vires Articles 19 and 21 of the Constitution. The said contention of the appellant was accepted by a Single Judge of the High Court. Consequently, Clause 19 of the Fertilizer (Control) Order was struck down. Aggrieved by the judgment of the learned Single Judge, the respondents preferred a letters patent appeal before the Division Bench of the High Court. The Letters Patent Bench, relying upon the Full Bench's decision in Director, Agriculture, Punjab v. Narinder Pathak decided on 13-10-1999, allowed the appeal and set aside the judgment of the learned Single Judge. It is against the said judgment of the High Court, the appellant is in appeal before us.

2. It is not disputed that no chargesheet on the strength of public analyst's report has been submitted to the Court against the appellant. It is also not disputed that no proceeding under the Code of Criminal Procedure has been taken against the appellant. In Letters Patent Appeal No. 1039 of 1996, Director, Agriculture, Punjab v. Gurmukh Mal Shibba Mal (1997) 4 Rec Cri R 780 was relied upon by the Division Bench while upholding the validity of Clause 19 of the Fertilizer (Control) Order, 1985. The relevant extract of the decision in Gurmukh Mal Shibba Mal (1997) 4 Rec Cri R 780 is extracted below:

“In case under scrutiny, a sample of fertilizer was taken by the authorities as per provisions of the 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 the petitioner is to be given a right of defence. It would indeed be premature to judge the ultimate decision which the court may take. An accused person of course has right to set up defence in terms of Section 293 CrPC. What would be the nature of defence can again be a matter of sheer guess. In any case, one could visualise that the petitioner would adduce all such evidence so as to prove his innocence. Maybe, 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 analysts 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.”

3. Since no criminal proceedings have been taken against the appellant, there was no cause of action for the appellant to file a petition under Article 226 of the Constitution. As and when the appellant is tried in a court of law, it is always open to the appellant to take such defence as may be permissible under law including defence under Section 293 CrPC. In that view of the matter, the writ petition filed by the petitioner was premature and ought not to have been entertained by the High Court.

4. For the aforesaid reasons, we are not inclined to interfere in the matter. The appeal fails and is dismissed accordingly. However, we make it clear that in case the appellant is tried in a court of law, it would be open to him to take such defence as is available to him under law. No costs.