PLJ 2023 Cr.C. (Note) 205
[Lahore High Court, Lahore]
Present: Ali Baqar Najafi, J.
MUHAMMAD ARSHAD--Petitioner
versus
STATE and another--Respondents
Crl. Rev. No. 415 of 2013, decided on 8.5.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 439/435--Criminal revision--The person from, whom fertilizers were purchased--Under Section 18(1) of Fertilizer Control Act, 1973 storing fake and adulterated fertilizer is an offence but it is also not deniable that at time of raid no person from market was asked to become a private witness--It was raid conducted only by departmental functionaries--Besides, it is also not denied by prosecution that petitioner remained in this fertilizer business for quite long and during which, he was never alleged to have sold spurious or adulterated fertilizers--He is first offender, therefore, his previous conduct is also to be considered at time of deciding present revision--He has also spent 7/8 month behind bars prior to suspension of his sentence by High Court--The arguments/ observations adopted by courts below that petitioner did not challenge findings of laboratory before higher forum which proves bis guilt, cannot be appreciated at this stage since he was not manufacturer of said adulterated fertilizers but a seller, dealer etc--Appeal allowed. [Para 3] A, B & C
Petitioner in person.
Mr. Ejaz Ahmed Pannun, DDPP with Ali Asghar, Deputy Director.
Date of hearing: 8.5.2023.
order
Through this Criminal Revision under Section 439/435, Cr.P.C. petitioner challenges judgment dated 09.03.2013 passed by the learned trial Court as well as judgment dated 30.05.2013 passed by the learned Addl. Sessions Judge in case FIR. No. 419 dated 10.11.2010 registered under Sections 18(1), 10(1), 16(1) of the Punjab Fertilizer (Control) Order, 1973 read with Section 6(1) of the Punjab Essential Articles (Control) Act 1973 at Police Station Ahmad Nagar, District Gujranwala. The facts of the prosecution case as contained in complaint (Exh.PC) and FIR (Exh.FD) is that on 18.11.2010 on spy information that a suspected DAP Fertilizer is being sold at Warpal Chatha, Deputy District Agriculture Officer, Assistant Controller Fertilizer, Tehsil Wazirabad, along with Binyameen Agriculture Inspector and Muhammad Imran Agriculture Officer raided the dealer shop of the appellant and obtained sample of DAP Sona FFC, handed over one sample to the dealer, second sent to the laboratory of Soil Fertility, Gujranwala on 08.11.2010 and the third sample was sent to Director Soil Fertility, Lahore. The investigation was conducted and report under Section 173, Cr.P.C. was presented before the learned trial Court whereafter the charge was framed, copies were delivered and the prosecution presented Ali Asghar Cheem, (PW-1), Muhammad Binyameen (PW-2), Muhammad Arif (PW-3), Naveed Ahmed (PW-4) and Muhammad Aslam, SI/Investigation Officer (PW-5) whereas Imran Agriculture Officer and Ammar Aslam, were given, up. In the statement under Section 342, Cr.P.C., recorded on 25.07.2012 the petitioner denied the allegation. The learned trial court observed that it was a foolproof case as the raid was conducted and the petitioner was arrested from the spot read-handed and the recovered 38 sacks were found fake.
2. Arguments heard. File perused.
3. It is not the prosecution case that some complaint was received in the Department that the petitioner was selling spurious or adulterated fertilizers. No private witness appeared from the prosecution side to show that because of the use of said fertilizers the crop was damaged. It is also not the case of the prosecution that petitioner was manufacturer of the said fertilizers. The Investigating Officer/PW-5 did not investigate to find the source from where the said fertilizers were collected by the petitioner. The prosecution has not been able to show to the court that adulterated fertilizer has caused loss to any cultivator. The report (Exh.PB) from by Testing Laboratory, Gujranwala reveals the Nitrogen 2.28% instead of 18%, phosphors 0.62% instead of 46% and no invoice of Fauji Fertilizer Company was produced by the appellant showing that he purchased the said fertilizer from the said company. Therefore, as stated above, it was incumbent to find out the person from whom the fertilizers were purchased. Under Section 18(1) of the Fertilizer Control Act, 1973 storing fake and adulterated fertilizer is an offence but it is also not deniable that at the time of raid no person from the market was asked to become a private witness. In other words, it was raid conducted only by departmental functionaries. Besides, it is also not denied by the prosecution that petitioner remained in this fertilizer business for quite long and during which, he was never alleged to have sold spurious or adulterated fertilizers. He is the first offender, therefore, his previous conduct is also to be considered at the time of deciding the present revision. He has also spent 7/8 month behind the bars prior to suspension of his sentence by this Court on 05.08.20.13, The arguments/observations adopted by the courts below that the petitioner did not challenge the findings of the laboratory before the higher forum which proves his guilt, cannot be appreciated at this stage since he was not the manufacturer of the said adulterated fertilizers but a seller, dealer etc.
4. For the foregoing reasons, I am of the view that prosecution has failed to make out a case against the petitioner, therefore, this appeal is allowed, conviction and sentence awarded by the learned courts below is set aside. He is on bail, his sureties stand discharged from their liabilities.
(A.A.K.) Appeal allowed
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