Punjab-Haryana High Court
Akash Jain S/O Mahesh Chand Jain vs State (Chandigarh Administrate on 20 October, 2008
Crl. Misc. No.54348-M of 2006 1
Akash Jain S/o Mahesh Chand Jain ...Petitioner
Vs.
1. State (Chandigarh Administrate, Chandigarh)...Respondents
2. Mr. Bharat Kanojia, Govt. Food Inspector,
Chandigarh (UT).
Present: Mr. G.S.Sawhney, Advocate,
for the petitioner.
Mr. N.S.Shekhawat, Advocate,
for U.T.Chandigarh.
***
This petition, under Section 482 Cr.P.C., has been filed by Akash Jain, petitioner, for quashing the complaint (Annexure P-3), and the subsequent proceedings arising therefrom, pending in the Court of Chief Judicial Magistrate, Chandigarh, under the Prevention of Food Adulteration Act, 1954 (hereinafter to be called as 'the Act').
2. The facts, in brief, are that on 8.6.2006, respondent No.2/complainant inspected the premises of M/s Shri Ganesh Chemical Industries, Plot No.181/42, Industrial Area, Phase-I, Chandigarh, and took a sample of IDACOL Synthetic Food Colour for analysis, in accordance with the provisions of law. One part of the sample was sent to the Public Analyst. After the receipt of report of the Public Analyst, that the contents of the sample parcel, were adulterated, a criminal complaint, under Section 16 of the Act, was filed.
3. In the petition, filed by the petitioner, for quashing the complaint and the subsequent proceedings, it was stated that the sample was taken in the form of packets, which was in violation of Rules 14 and Crl. Misc. No.54348-M of 2006 2 16 of the Rules. It was further stated that notice under Section 13(2) dated 3.8.2006 was served upon the petitioner, after two months of the receipt of the report of the Public Analyst, and, as such, the right of the petitioner in getting the same re-analysed was defeated. It was further stated that the petitioner had purchased the food colour from Devendra Cottage Industry, Chandigarh, vide bill No.12671 dated 13.5.2006 (Annexure P-5), by way of warranty, and, as such, he being the dealer/vendor was not liable for the commission of any offence, and, on the other hand, was entitled to protection, under Section 19(2)(b) of the Act, read with Rule 12-A of the rules framed thereunder. It was further stated that the food colour had not been declared injurious to health. It was further stated that the Food Inspector, who took the sample did not possess the requisite qualifications, and as such, his appointment was not valid. It was further stated that the manufacturer had not been made a party, in the complaint, and, as such, the complaint, could not be proceeded against the petitioner.
4. In reply by the respondent, it was stated that the sample was taken in the plastic jars strictly, in accordance with the provisions of law, as also of the Rules, so as to prevent leakage of the same, during transit. It was further stated that due notice, under the provisions of law, for reanalysis, was issued to the petitioner, after receipt of the report of the Public Analyst, but he did not exercise his right, under Section 13(2) of the Act. It was further stated that, in case, the petitioner is covered by the warranty, in the form of Bill, he can take such a defence, during the course of trial, but it cannot be made a ground, under Section 482 Cr.P.C. for quashing the complaint, and the subsequent proceedings. It was Crl. Misc. No.54348-M of 2006 3 further stated that the manufacturer, or the distributor, could be arrayed, as accused, by the trial Court, at any stage, if it comes to the conclusion, that they committed the offences. It was further stated that the Food Inspector, was having the requisite qualifications, and his appointment, as such, was valid.
5. I have heard the Counsel for the parties, and have gone through the record of the case, carefully.
6. The Counsel for the petitioner, took up the same pleas as were taken up by him, in the petition, referred to above. In support of his pleas/contentions, he placed reliance of M/s Ram Dhand Rikhi Ram Vs. State of Punjab 2001(4) RCR (Criminal) 529, M/s Kissan Brothers Vs. State of Punjab 2000(4) RCR (Criminal) 210, Om Parkash Vs. The State of Punjab, 1982(1) Prevention of Food Adulteration Cases 23, M/s Lochen Kheti Sewa Centre, Behrampur Bet Vs. State of Punjab 2008(2) RCR (Criminal) 22, Deepak Sharma and others Vs. State of Punjab 2008(2) RCR (Criminal) 24, and Surinder Kumar Jain Vs. State of Haryana 2005(4) RCR (Criminal) 692.
7. On the other hand, the Counsel for the respondent also took up the same pleas, as were taken up by him, in the written reply. He, however, submitted that the cases, on which reliance has been placed, by the Counsel for the petitioner, are distinguishable, on facts, and the ratio of law, laid down, therein, is not applicable, to the facts of the instant case.
8. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent abuse of the process of any Court, or otherwise, Crl. Misc. No.54348-M of 2006 4 to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in following categories of cases, the High Court in exercise of its powes, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases:
1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused.
2) Where the allegations in the First Information Report and Crl. Misc. No.54348-M of 2006 5 other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudgent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused.
6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7) Where a criminal proceeding is manifestly attended with Crl. Misc. No.54348-M of 2006 6 mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge.
Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.
9. Now adverting to the facts of the instant case, let us see, as to whether, the allegations, contained in the complaint, do not disclose the commission of an offence, or whether the same are so absurd, as no prudent man, would be able to act upon the same, so as to come to the conclusion, that an offence had been committed by a particular person. The sample was taken from the premises of the petitioner, in accordance with the provisions of law, by respondent No.2/complainant, and when the same was sent to the Public Analyst, it was found to be adulterated. A Report of the Public Analyst, was sent to the petitioner, and he could exercise his right, under Section 13(2) of the Act, but he did not do so of his own accord. Therefore, it could not be said that respondent No.2 was at fault, in any manner, in this respect. Annexure P-5, is a copy of the bill, vide which the article, which was found to be adulterated, was purchased by the petitioner from M/s Devendra Cottage Industry. There is nothing, on the record, nor in this bill, as to what were the conditions under which the said article was sold in favour of the petitioner, by the Crl. Misc. No.54348-M of 2006 7 said industry. Even, if it is assumed, as a valid warranty, in my considered opinion, it being a defence, which is available to the petitioner, during the trial of the case, cannot be taken into consideration, at the stage of exercising inherent powers, under Section 482 Cr.P.C. It is well settled principle of law, that the Court while exercising its inherent jurisdiction, under Section 482 Cr.P.C., is only required to take into consideration the allegations, contained in the complaint, and the documents, accompanying the same, and not the probable defence, which might be available to the petitioner, during the course of trial. Section 19 of the Act, reads as under :-
"19. Defence which may or may not be allowed in prosecutions under this Act - (1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him, or that the purchaser having purchased any article for analysis was not prejudiced by the sale. (2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves -
(a) that he purchased the article of food -
(i)in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii)in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly Crl. Misc. No.54348-M of 2006 8 stored and that he sold it in the same state as he purchased it. (3) Any person by whom a warranty as is referred to [in Section 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence."
10. The heading of the Section is very clear, and unambiguous. It relates to the defence, which may, or may not be allowed in prosecution, under this Act. It means that such defence can only be taken by an accused, during the course of trial of the case, and not for the purpose of quashing the proceedings, at the initial stage, under exercise of the inherent jurisdiction, under Section 482 Cr.P.C., by this Court. Not only this, according to Section 19(2)(b), the vendor/dealer is required to prove that the article of food, while in his possession, was properly stored, and that he sold it in the same state, as he purchased it. No doubt, there is an averment, in the petition, that the container was sealed, which was taken as a sample. However, there is no averment, in the petition, that it was properly stored, after the purchase of the same, from the manufacturer. The disputed facts, cannot be adjudicated upon, by this Court, in exercise of its jurisdiction, under Section 482 of the Cr.P.C. The same are rquired to be adjudicated upon, by the trial Court. The facts of M/s Ram Dhand Rikhi Ram's, M/s Kissan Brothers, Om Parkash's, M/s Lochen Kheti Sewa Centre's Deepak Sharma's and Surinder Kumar Jain's cases (supra), are clearly distinguishable, from the facts of the instant case. In the aforesaid cases, there was no dispute, with the legality and validity of the warranty, and even it was prima-facie established, that the article was stored properly, while it was in possession of the dealer/vendor. In the instant case, as stated above, this fact is not even prima-facie established, Crl. Misc. No.54348-M of 2006 9 at this stage. In these circumstances, no help can be drawn, by the Counsel for the petitioner, from the ratio of law, laid down, in the aforesaid authorities, as the facts thereof, are completely distinguishable from the facts of the instant case. The submission of the Counsel for the petitioner, in this regard, being without merit, must fail, and the same is rejected.
11. Now coming to the submission of the Counsel for the petitioner, to the effect that since the sealed container was purchased by the Food Inspector, in the same condition, in which it was purchased by the vendor, from the manufacturer, only the manufacturer was liable, but he had not been impleaded, it may be stated here, that under Section 20-A of the Act, manufacturer, distributor, or dealer, of any article of food, can be summoned by the trial Court, if it is satisfied, on the evidence adduced, before it, that such manufacturer, distributor, or dealer, is concerned with that offence. It is, thus, left to the discretion of the Magistrate, whether in a particular case, having regard to the evidence adduced, it is necessary, in the interest of justice, to implead the manufacturer, distributor, or dealer, as the case may be. The essential conditions, for invoking the power, under Section 20-A of the Act, are that : (1) the trial should have begun already, (2) the trial must be of any offence, under the Act, allegedly committed by a person, other than the manufacturer or distributor or dealer of the food article, (3) the Court must have been satisfied that such manufacturer or dealer or distributor is also concerned with the offence, and (4) such satisfaction must have been formed on the evidence adduced before the Court. Similar principle of law, was laid down, in Omprakash Shivprakash Vs. K.I.Kuraikose AIR Crl. Misc. No.54348-M of 2006 10 1999 S.C. 3870. During the trial of the case, the trial Court may come to the conclusion that the manufacturer or the distributor have committed the offence, on the basis of evidence, adduced, and it may summon them, at any time. However, non-impleading them as accused, by the complainant, does not absolve the petitioner of his liability, if any. The submission of the Counsel for the petitioner, is also without any substance, and stands rejected.
12. No ground, whatsoever, is made out for quashing the complaint, as also the subsequent proceedings, arising therefrom. The petition is, thus, liable to be dismissed.
13. For the reasons recorded above, the instant petition for quashing the complaint (Annexure P-3), and the subsequent proceedings, arising therefrom, pending in the Court of the Chief Judicial Magistrate, Chandigarh, is dismissed, being devoid of merit. The order dated 5.3.2007, which was extended from time to time, exempting the personal appearance of the petitioner, before the trial Court, is vacated. Any observation made, in this order, shall not be taken, as an expression of mind, on merits of the case.
October 20, 2008. (SHAM SUNDER) Vimal JUDGE