Ganesh Deshmukh Vs The State of Maharashtra and Another

@JUDGMENTTAG-ORDER

T. V. Nalawade, J.@mdashBoth the applications are filed for relief of anticipatory bail in C.R. No. 4/12 registered with Nandurbar Taluka Police Station, District Nandurbar. The crime is registered in respect of the contravention of clauses 7, 8 (1), 13 (2), 19 (iv) and 35 of the Fertiliser (Control) Order, 1985 (for short ''Order of 1985''). The contravention of these clauses is made punishable u/s 3 read with 7 of the Essential Commodities Act, 1955. Both the sides are heard. The papers of investigation were made available and this Court has perused the same. The crime is registered on the basis of report given by a Fertiliser Inspector, who is also working as an Agricultural Officer of Panchayat Samiti. The action was taken by Agricultural Officer and police, after receipt of a complaint that illegal manufacturing activity in respect of fertiliser was going on in village Varul, District Nandurbar.

2. When police and the Agricultural Officer went to the spot with panchas, they noticed that many bags of fertilisers and many bags, containing raw material, which was used as fertiliser, were present at the place informed by the complainant. The work of filling the bags with this material was going on and many bags were already filled. The description of the material is recorded in the police papers, as under :

(i) 6100 bags of Birla Vishwas Conditioner (shown to contain Sulfonat)

(ii) 40 bags of Mansfield Fresh

(iii) 2000 bags of Magnet fertilizer

(iv) 400 bags of Jai Potash

(v) 1000 bags of Dolomite raw material.

There were articles including machinery required for mixing and filling the bags at this place. Value of the aforesaid material is recorded as Rs. 40 Lakhs. One Vilas Deshmukh was present and he informed that the activity was going on for Lokmangal Bio-Tech Private Ltd., company of Solapur. which is under control of applicant from first proceeding. Vilas Deshmukh could not produce documents like license in respect of the manufacture or mixing of aforesaid material at this place and he could not produce record in respect of aforesaid raw material also. Bill books were, however, recovered from the spot showing that similar bags were sold to agricultural centers/shops from this place.

3. The aforesaid factory cum godown was in the field of Ashok Vedu Patil, the applicant from second proceeding. The Agricultural Officer found that on the bags shown to contain fertiliser, the contents were described as - "Calcium : 12%, Magnesium oxide : 5%, Sulfer : 18% etc." The raiding party noticed that soil of yellow colour was there and from inquiry, they learnt that the soil was brought from Gujarat State and such soil is generally used for manufacturing bricks. The Agricultural Officer realized that bogus fertilisers were produced there by mixing some material in the soil and the bags were being sold by making false representation that they contain fertiliser. In respect of this place, there was no license either of manufacture, of storage or of sale of the fertilizer. Thus, the Agriculture Officer found that the farmers were being cheated by the applicants and then he gave the report. Samples were forwarded to laboratory created under the provisions of the Order of 1985.

4. It was submitted for the applicant from the first proceeding that there was only packing of conditioner substance and the aforesaid material cannot be called as fertiliser. For the applicant from the second proceeding, it was submitted that he had given the aforesaid land on lease basis to applicant from first proceeding and so, he had no concern with these activities.

5. In view of the aforesaid defence taken for the applicant from first proceeding, this Court has gone through the scheme and provisions of the Order of 1985. The Order shows that it is issued by the Central Government in exercise of powers conferred by section 3 of the Essential Commodities Act, 1955.

6 In clause 2 (h) of the Order, the definition of "fertiliser is given and it is as follows :-

(h) "fertiliser" means any substance used or intended to be used as a fertiliser of the soil and /or crop and specified in Part A of Schedule I and includes a mixture of fertiliser, special mixture of fertiliser, provisional fertiliser, customised fertiliser, bio-fertilisers specified in Schedule III and organic fertilisers specified in Schedule IV;

The definition of "manufacturer/importer" is given in clause 2 (m) and it is as follows :-

(m) "manufacturer/importer" means a person who produces fertilisers or mixtures of fertilisers and the expression "manufacture/import" with its grammatical variations shall be construed accordingly;

Definition of ''mixture of fertilisers" is given in clause 2 (n) and it is as under :-

(n) "mixture of fertilisers" means a mixture of fertiliser made by physically mixing two or more fertilisers, with or without inert material in physical or granular from and includes a mixture of N.P.K. fertilisers, a mixture of micronutrient fertilisers and a mixture of N.P.K. with micro-nutrient fertilisers;

And then definition of "physical mixture" is given in clause 2 (p) and it is as under :-

(p) "physical mixture" means a mixture of fertilisers made by physically, mixing two or more fertilisers with or without inert material necessary to make a required grade, without involving any chemical reaction;

7. In clause 12 of the Order, restrictions are given on preparation of mixtures of fertilisers. The preparation of mixture can be done only in accordance with the certificate of manufacturer granted under clause 15 or 16 of the Order of 1985. Clause 13 is in respect of of the standards of mixtures of fertilisers and it shows that manufacture of mixture of fertiliser can be only in accordance with standards set under Schedule I to IV of the Order of 1985. Clause 14 is in respect of issuance of certificate for manufacturing of mixture of fertiliser and it shows that no certificate can be granted in respect of the mixture which does not confirm to standards set in Schedule I to Schedule IV. This clause further shows that the certificate can be issued only to qualified person and only when the person possesses minimum laboratory facilities as specified in Clause 21-A of the Order of 1985. Clause 15 prohibits manufacture, possession etc. of fertilizer which is not as per the aforesaid standards.

8. Copy of certificate issued to Lokmangal Bio-Tech Company shows that it is for "manufacture of physical micro-nutrient mixture of fertilisers" specified in certificate and it is subject to conditions of certificate and also the provisions of the order. The address where the activity can be carried out is given in the certificate and it is Gat No. 520, at Bibi Darphal, North Solapur, Tahsil North Solapur, District Solapur. The record produced for the applicant shows that this company can have godown at Chincholi, Akola and Haweli. As the activity was going on in Nandurbar District, even if, it is presumed that there was permission of the mixture or manufacture of aforesaid substance, there is a breach of the licence issued to Lokmangal Bio-Tech Company as the activity was going on at different place.

9. The certificate as renewed till 2012 shows the substances which are allowed to be used as nutrient by the aforesaid company and also the percentage of the substance to be used in the mixture, the following nutrients were allowed to be used at initial stage - Fe, Mn, Zn, Cu, Mo, and B.

10. Additional grades which were allowed to be prepared show that W.S. fertiliser containing substance like calcium nitrate, potassium sulfate, N.P.K. 0:0:50, N.P.K. 0;52;34, N.P.K. 19:19:19, N.P.K. 20:20:20, N.P.K. 12:61:00 and N.P.K. 13:14:13 were covered under the certificate.

11. Annexure (2) of the certificate shows that Bentonite Sulpher (G) - S -90% was added subsequently.

12. As against the aforesaid permission following substances were detected in the samples collected in the aforesaid premises.

If the analysis done by the laboratory and the components found during analysis are compared with the permission mentioned in the certificate, it can be easily said that the manufacture or mixing of the substances found in the factory was not allowed under the aforesaid certificate. This Court has gone through the Schedule in which standards for various kinds of fertilizers are prescribed. The aforesaid samples are not in conformity with any of the standards mentioned in this schedule. Thus, there was no question of granting certificate under the Order of 1985 in respect of the substances found in the factory. When a substance is not in conformity with the standards prescribed, it cannot be allowed to be used as fertilizer even in the name of "conditioner" and no certificate can be granted in respect of the such substances.

13. It was submitted for the applicant from first proceedings that he had applied to authorities of two other States for permission to sell the aforesaid substances and the authorities from the two other States have informed that no certificate is required under the Order of 1985 in respect of such substances. No complete record is available in respect of that correspondence and so nothing can be said about the information, if any, supplied by the authorities from the other States. In view of the aforesaid circumstances, this Court holds that such defence cannot be considered atleast at this stage. It was further submitted that application is moved to the authority from this State for such permission, but no response is given by the authority. Some record is produced in respect of the application and it shows that permission was sought to sell substance like (i) Ca - 15%, Mg - 5%, S - 10% (ii) the Birla Vishwas Powder, containing Ca - 10%, Mg - 5% and S -10%, (iii) Magnet Powder, containing Ca - 15%, Mg - 5%, S -10%, (iv) Speed, containing Amino Acide - 25%, Sardar - Amino Acide - 12%, (v) Nitrobenzine 12%, Humic Acid - 06%, (vi) Sulphur Plus containing Sulphur - 20% and (vii) Bordomax containing Copper 10%. If one goes carefully through standards prescribed under the four schedules, one can see that most of these substances are the components of various fertilizers and they can be produced either by chemical reaction of 2 different substance or they can be used as mixture in quantity specified in the schedules. Admittedly, no certificate is granted in respect of the substances which are seized by the authority. Substances are not as per the standards prescribed and so at this stage, there is material to prima facie make out the case of manufacture and sell of bogus fertilizers.

14. Such matters cannot be taken lightly. In view of the nature of harm, which such substances can cause to the soil and in view of the fact that there is the possibility of reduction in growth of the crop and in turn reduction in yield, such substances cannot be used unless they are tested and the standards are prescribed. When such substances are sold, inference is easy that the farmers are deceived. It is not only offence against general public, but it is an act against the interest of every living being. Section 10 (c) of the Essential Commodities Act shows that there is presumption of culpable mental state when such requirement is there when such offence is committed. In view of these circumstances and provisions of law, this Court holds that there is sufficient material against the applicant from the first proceeding to make out prima facie case. It cannot be said that false allegations are made against the applicant and so he is not entitled to any relief .

15. The applicant from the second proceeding has produced some record like copy of agreement to show that his land is given by way of lease to the applicant from the first proceeding. This Court has gone carefully through these documents. So called copy of lease shows that the stamp on which agreement is written was sold by Treasury Officer on 14.11.2011 and the stamp was sold by stamp vendor on 24.11.2011. However, the agreement is shown to be written on 11.11.2011. Thus, there is clear possibility of creation of false record to claim defence. Further, when the property of a person is used for such illegal activity, it is up to him to explain the things and such defence cannot be considered at this stage. So the application of applicant from second proceeding also deserves to be rejected. In the result, both the applications stand rejected.