Punjab-Haryana High Court
Ashwani Raina vs State Of Punjab on 26 March, 2018
Author: Arvind Singh Sangwan
Bench: Arvind Singh Sangwan
CRM-M No.36772 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M No.36772 of 2010 (O&M)
Decided on: 26.03.2018
Ashwani Raina
....Petitioner
Versus
State of Punjab
....Respondent
CORAM: HON'BLE MR JUSTICE ARVIND SINGH SANGWAN
Present : Ms. Vanita Sapra Kataria, Advocate
for the petitioner.
Ms. Samina Dhir, DAG, Punjab.
ARVIND SINGH SANGWAN, J.
Prayer in this petition is for quashing of complaint No.262 date 15.07.2010 filed under Sections 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (in short 'the PFA Act') (Annexure P3) and the summoning order dated 15.07.2010 (Annexure P4) passed by the Chief Judicial Magistrate, Ludhiana.
This petition is pending since 2010 and the same was admitted on 20.08.2015 and further proceedings before the trial Court were stayed.
Brief facts of the case are that the impugned complaint was filed by the Government Food Inspector with the allegation that on 31.05.2010, he visited the store of Reliance Fresh where the petitioner 1 of 10 ::: Downloaded on - 15-04-2018 09:57:04 ::: CRM-M No.36772 of 2010 (O&M) 2 was the Store Manager/In-charge. The Government Food Inspector purchased rice from the store and prepared a spot memo in Form No.VI which was signed by two witnesses namely Neeraj Kumar Singla and Abhinav Kumar. A perusal of this Form No.VI which is attached as Annexure P1 with the present petition show that the Food Inspector had purchased 900 gms of rice for analysis from a Public Analyst. Thereafter, the Food Inspector separated the sample in 03 equal parts and were sealed as per the procedure under the PFA Act and one part was sent to Public Analyst on 31.05.2010 for analysis, which was received on the same day by the Public Analyst. The Public Analyst submitted a report dated 15.06.2010 and according to this report, he found 03 living and 03 dead insects (sursari). The report of the Public Analyst is attached as Annexure P2. As per this report, the Public Analyst reported that the sample was in a fit condition for analysis and the analysis started on 31.05.2010 and completed on 14.06.2010 and as per this analysis, 03 living and 03 dead insects (sursari) were detected without mold growth. The Public Analyst gave his opinion that since the contents of the samples are insects infested, hence, it is adulterated. It is further stated in the complaint that on receiving the report of the Public Analyst, the present complaint was filed and the Chief Judicial Magistrate, vide impugned order dated 15.07.2010 summoned the petitioner to face the trial punishable under Section 16 of the PFA Act. Aggrieved against the said order, the petitioner has filed the present petition challenging the aforesaid complaint and the summoning order.
Counsel for the petitioner has raised the following arguments:-
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1. Counsel for the petitioner has submitted that as per Section 2 of the PFA Act, adulterant is defined as under:-
"2. Definitions. - In this Act unless the context otherwise requires, -
(i) "adulterant" means any material which is or could be employed for the purposes of adulteration; (ia) "adulterated" - an aticle of food shall be deemed to be adulterated -
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
(b) to (l) xxxx xxxx xxxx xxxx
(m) if the quality or purity of the article falls below the
prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub- clause.
Explanation. - Where two or more articles of any primary food are mixed together and the resultant article of food -
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;"
3 of 10 ::: Downloaded on - 15-04-2018 09:57:06 ::: CRM-M No.36772 of 2010 (O&M) 4 Counsel for the petitioner has further submitted that the primary food is defined under Section 2 (xii)(a) which reads as follows:-
"2 (xii)(a) "primary food" means any article of food, being a produce of agriculture or horticulture in its natural form;"
2. Counsel for the petitioner has further argued that since rice is a primary food, as per the Proviso to Section 2(i)(a) and (m) of the PFA Act, if its quality or purity has fallen below the prescribed standards due to natural causes and beyond control of human agencies, such article shall not be deemed to be adulterated within the meaning of this sub-section. It is further submitted that since rice is a primary food as defined under Section 2(xiia) being a produce of agriculture in its natural form, even if found adulterated as per the report of the Public Analyst, it falls in the exclusion clause of adulterated food and, therefore, the prosecution of the petitioner is bad in the eyes of law.
3. Counsel for the petitioner in support thereof has relied upon the judgment "State of Punjab vs Ram Lal", 1985(2) Prevention of Food Adulteration Cases 187 wherein the Hon'ble Division Bench of this Court has held that rice is a primary food and the living or dead insects can be removed by washing before cooking, therefore, the adulteration was not introduced through any human agency and the order of acquittal passed by the trial Court was upheld. Counsel for the petitioner has further relied upon the judgment "State of Haryana vs Rama 4 of 10 ::: Downloaded on - 15-04-2018 09:57:06 ::: CRM-M No.36772 of 2010 (O&M) 5 Nand", 1984(1) RCR (Criminal) 55, wherein the Hon'ble Division Bench of this Court has held that primary food which is non-injurious to health but sub-standard due to natural causes and beyond the control of human agency is exempted from the purview of the Act and if, the report of the Public Analyst is silent whether it was injurious to health or the adulteration was due to human agency, the order of acquittal passed by the trial Court was upheld. In the said case, the sample of 'Sabut Haldi' (Turmeric) was taken from the accused persons. Similar view was taken by this Court in "Shambu Dial vs State of Haryana", 1986(2) RCR (Criminal) 44 where a sample of Ajwain (Bishop's weed) was taken and the accused was acquitted holding that it is a primary food.
4. Counsel for the petitioner has also submitted that the report of the Public Analyst is silent about the fact that the rice was unfit for human consumption and on mere assumption that it was insect infected, it cannot be held that it is adulterated.
5. Lastly, counsel for the petitioner has argued that as per the report of the Public Analyst, analysis started from 31.05.2010 and it was completed on 14.06.2010 and it took a period of 14 days in completion of analysis and, therefore, there is no proper explanation for the same and it cannot be relied upon.
In reply, counsel for the State has opposed the arguments raised by counsel for the petitioner. Counsel for the State has submitted that all the judgments relied upon by the petitioner pertain to the 5 of 10 ::: Downloaded on - 15-04-2018 09:57:06 ::: CRM-M No.36772 of 2010 (O&M) 6 proceedings arising out of a judgment of acquittal or a judgment of conviction and are not covering the powers of the High Court under Section 482 Cr.P.C. for quashing of a complaint under the PFA Act. Counsel for the State has relied upon the judgment "State of Gujarat and another vs Rameshchandra Shivratan Kosar and another", 2009(12) SCC 583, wherein the Hon'ble Supreme Court in paras 4 to 9 held as under:-
"4. On receiving the complaints, the Magistrates concerned registered the complaints and issued process. The High Court was moved for quashing the complaints. It was the stand of the applicants that the sample did not contain any prohibited substance and the food article was not adulterated. The stand was that the food product in respect of which the samples were collected was really a pan masala and therefore, has to be construed as such. It was therefore submitted that if it is treated as pan masala it fulfils the requisite standard. The stand of the present appellants was that the quantum of artificial sweetener exceeded the maximum limit of artificial sweetener.
5. The High Court accepted the prayer of the applicants on the ground that the complaint did not disclose any offence. Accordingly, the proceedings were quashed.
6. In support of the appeals, learned counsel for the appellants submitted that it is not a case where Section 482 of the Code has any application. The exercise of jurisdiction under Section 483 of the Code should not have been made. Reference is made to the food analyst's report on the basis of which the proceedings were initiated. Learned counsel for the respondents on the other hand submitted that the analysis by the public analyst was not done keeping in view the requisite parameters. It is
6 of 10 ::: Downloaded on - 15-04-2018 09:57:06 ::: CRM-M No.36772 of 2010 (O&M) 7 submitted that the norms which were applicable when the analysis was made had not been kept in view.
7. The parameters for exercise of jurisdiction under Section 482 of the Code have been highlighted by this Court in a large number of cases. To a pointed query as to whether in the petition filed before the High Court there was any challenge or any specific stand taken about the requisite norms having not been followed by the public analyst, it was submitted that though that was not specifically done, yet the specific stand was that there was no violation and the ingredients were within the permissible limit.
8. The High Court does not appear to have considered this aspect at all and factual controversies were involved which could not have been adjudicated in the proceedings under Section 482 of the Code is clearly indefensible. The impugned order of the High Court is set aside. The appeals are allowed.
9. We make it clear that we have interfered in the matter because the scope and ambit of section 482 of the Code had not been kept in view and not on merits." It is, thus, submitted that as per the report of the Public Analyst which is relied upon by the petitioner himself, it has been held that the contents of sample are insect infected and adulterated and on physical appearance done on 31.05.2010 i.e. the date when the rice was purchased 03 living and 03 dead insects (sursari) were detected.
Counsel for the State has also relied upon the affidavit filed by the Government Food Inspector dated 13.05.2011 wherein the detail of the procedure undertaken by the Food Inspector has been explained. Counsel for the State has also relied upon the affidavit of the Health Officer, Office of Civil Surgeon, Ludhiana wherein it has been 7 of 10 ::: Downloaded on - 15-04-2018 09:57:06 ::: CRM-M No.36772 of 2010 (O&M) 8 explained that the petitioner being Manager of the store was in possession of 50 Kgs. of rice which was meant for sale for human consumption as it was a grocery store and the complainant being an authorized person to challenge the prosecution as per the notification (Annexures R1 and R2), the complaint has been filed, in accordance with law after receiving the report of the Public Analyst (Annexure R3).
Counsel for the State in reply to the arguments that rice is a primary food as per Section 2(xii)(a) of the PFA Act, has submitted that rice (chawal) is the processed form of the paddy (ziri) crop which is an agriculture produce in its natural form. It is further submitted that rice is processed by way of milling and removing the husk of the paddy crop, which is a primary food and, therefore, the rice cannot be equated with paddy to treat it as a primary food within the meaning of Section 2(xii)
(a) of the PFA Act and, thus, the sample of an insect infected rice will not fall in the exclusion clause as per the Proviso to Section 2 (i)(a) and
(m) of the PFA Act.
Counsel for the State further submitted that the arguments of the petitioner with regard to report of the Public Analyst, can be properly appreciated only after he has been examined as a witness before the trial Court.
After hearing the counsel for the parties, I find no merit in the present petition to quash the complaint and the summoning order in exercise of the powers under Section 482 Cr.P.C. for the following reasons:-
a). In view of the judgment of the Hon'ble Supreme Court in State of Gujarat's case (supra) since, the present petition involves
8 of 10 ::: Downloaded on - 15-04-2018 09:57:06 ::: CRM-M No.36772 of 2010 (O&M) 9 disputed question of facts including the proper appreciation of the report of the Public Analyst, thus, the complaint and the summoning order cannot be quashed at the very outset without recording the evidence.
b). It will be a moot point to be decided by the trial Court after recording the evidence of the parties whether the rice is a primary food within the definition of Section 2(xii)(a) of the PFA Act or it is a processed form of milling of the paddy (ziri) crop which is certainly a primary food being an agricultural produce in original form. The judgment relied upon by the petitioner in State of Punjab's case (supra) is distinguishable as in this judgment, this Court has not dealt with the provisions of Section 2(xii)(a) of the PFA Act. The other judgments relied upon by the petitioner are also distinguishable on the facts as these arises out of a judgment of acquittal or conviction by trial Court i.e. when the High Court had an access of re-appreciating evidence led by the prosecution, whereas, in the instant case, the petitioner is praying for quashing of the proceedings at initial stage and no evidence has been recorded by the prosecution. Even, in these cases there was no dispute with regard to the fact that Sabut Haldi (Turmeric) or Ajwain (Bishop's weed) or Sabut Mash (Dal) are the primary food being the agricultural produce in original form whereas it is to be decided by the trial Court whether the rice or the paddy will be a primary food.
For the foregoing reasons, the petition fails and is accordingly dismissed. In view of the fact that this petition is pending since 2010 and proceedings have been stayed before the trial Court, the 9 of 10 ::: Downloaded on - 15-04-2018 09:57:06 ::: CRM-M No.36772 of 2010 (O&M) 10 trial Court is directed to decide the complaint expeditiously within a period of 01 year from the date of receipt of certified copy of this order.
(ARVIND SINGH SANGWAN)
JUDGE
26.03.2018
yakub
Whether speaking/reasoned Yes/No
Whether reportable: Yes/No
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