Punjab-Haryana High Court
Best Price Modern Wholesale And Another vs State Of Punjab And Another on 11 October, 2022
CRM-M-25794-2019 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-25794-2019 (O&M)
Date of reserve: 27.9.2022
Date of pronouncement :11.10.2022
Best Price Modern Wholesale and another ....Petitioner(s)
VERSUS
State of Punjab and another ..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
Present: Mr.RS Rai, Senior Advocate with
Mr.Jasmeet Bhatia, Ms.Rubina Virmani Advocates,
for the petitioners
Mr.Kamalpreet Bawa, AAG, Punjab
AMAN CHAUDHARY, J.
CRM-35478-2022 For the reasons mentioned in the application, the same is allowed as prayed for, subject to all just exceptions. Annexures P-8 to P-13 are taken on record.
Main case The challenge in this petition filed under Section 482 Cr.P.C. is to the complaint No.333 of 2015 dated 20.4.2015, Annexure P-1, summoning order dated 15.6.2015, Annexure P-6, and order dated 30.4.2019, Annexure P-2, dismissing the application for discharge filed by the petitioners.
Factual Aspect:
Learned Senior counsel submitted that the petitioners are not the manufacturers but are only sellers of the products that are manufactured 1 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 2 by various companies, they being in the business of whole sale. He submitted that a complaint came to be filed by Ashwani Kumar, Food Inspector, Amritsar, on 20.04.2015 against the petitioners and the manufacturer of moong masala vadi (hereinafter referred to as "the product"), based on a sample drawn on 23.09.2013 from the premises of the petitioners. In this regard, while making a reference to the averments of para 5 of the complaint, Annexure P-1, he submitted, that four samples out of the purchased 2000 grams of the product, in equal parts were drawn out by the complainant. One out of the said samples weighing 200 grams, was sent to the Food Analyst, Punjab, Chandigarh on 24.09.2013, the report of which was received on 03.10.2013, Annexure P-3.
At that stage, the learned Senior counsel, made a pointed reference to a fact that he submitted, is vital to be noticed here that the shelf life of the product expired on 11.12.2013, which according to him, is the admitted case between the parties.
The second sample weighing 250 grams was sent for re- analysis to the Referral Food Laboratory, Gaziabad on 17.04.2014, the report of which is dated 15.05.2014, Annexure P-4.
It is further submitted that the complaint was filed on 20.04.2015 i.e. after a delay of 1 year and 7 months from the date of inspection i.e. 23.09.2013, the day when the product was purchased, samples were drawn, one of which was sent for examination on 24.9.2013. While referring to the complaint, he submitted that there were three accused arrayed therein, two of whom are the petitioners before this Court, shown to be sellers and third as the manufacturer. The relevant para 16 of the complaint, in this regard, reads thus:-
2 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 3 "That the accused No.1 being Best Price (Bharti Wallmart Pvt. Limited), G.T. Road, Mannawala, Amritsar, (seller) accused No.2 Navin Sharma being Manager, Best Price (Bharti Wallmart Pvt. Limited), G.T. Road, Mannawala, Amritsar (seller) and accused No.3 Amritsarian Di Hatti, near Pindi Street, Chaura Bazar Ludhiana, through its proprietor being manufacturer of Moong Masala Vadi have committed a violation of F.s.S. Act 2006. So action may kindly be taken against him under Sections 26 and 27 punishable under Section 59 of the Food Safety and Standards Act, 2006."
A further reference is made to paras 5 and 6 of the complaint to submit that it is averred therein that 2000 grams of the product was purchased against receipt signed by the accused and attested by the independent witness Nirmal Singh. A specific emphasis is made to the averments in para 6 thereof to the effect that it is mentioned therein, that the sample drawn was divided in equal parts and each sample packed was separated tightly.
A further reference in this regard is made to the report of the Food Analyst, Punjab, Chandigarh, dated 3.10.2013, Annexure P-3, which reads thus:-
"Analysis report Refer Rule 2.4.2(5)
(i) Sample Description Contents received in a sealed polythene pack pasted with a printed paper slip.
"ii) Physical Appearance of Sample/container (analysis done on 24.9.2013) Ten living and four dead susries detected. No Mould growth.
iii) Label Declaration The Paper slip is printed as GRD Moong Masala Vadi, Wt. 200 gm, Mtd. Dt.11.08.2013 Best before 4 months, Batch NO.D-1, Ings. Dal, Jeera, Kali Mirch, Garam Masala, Hing Mfg. by Amritsari Di Hatti, Near Pindi Street, Chaura Bazar, Ludhiana. Logs for Veg. Food:
Given, Nutritional Facts :- Not Given.
3 of 31
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CRM-M-25794-2019 4
S. Quality Name of Result Prescribed Standard as per
Characterstics method Regulation No.2.12 of Food
No. of the Safety & Standards (Food
test used Products and Food
Additive) Regulations,
2011.
(b) As per label declaration
for proprietary food
(c) As per provisions of the
Act, rules and regulations
for both the above
% Moisture 6.84%
% Total Ash 3.60%
% Ash 0.70%
Insoluble in
nil HCL
Test for Nacl Positiv
e
Added colour No
synthet
ic
Colour
detecte
d
And am of the opinion: The product has not been labelled in accordance with the provisions of Regulations 2.2.2(3) (Packing & labelling Regulation) of Act 2006/Rules/Regulations 2011. Moreover, contents contain then living and four dead susries. Hence misbranded and unsafe for human consumption."
In addition to the above, the report of Referral Food Laboratory, Govt. of India, Gaziabad, dated 15.5.2014, Annexure P-4 has been referred to, which reads thus:-
"Analysis Report
(i) Sample description- Sample of Moong Masala Vadi was received in a polypack (manufacturer's pack) kept in a wooden box and sealed by the food safety administration.
"ii Physical appearance - Sample of Vadi was free from fungal growth, insects and any other visible extraneous matter.
4 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 5 iii Label - Product's name: GRD Moong Masala Vadi, Manufactured by: Amritsarian Di Hatti, Near Pindi Street, Chaura Bazar, Ludhiana, Mft. Dt.:11./08/2013. *Best before 4 months. Batch No.D-1, Net weight: 250 g Symbol for vegetarian food: Displayed. Ingredients:
Dal, Zeera, Kali Mirch, Garam Masala, Hing.
S.No. Quality Name of Results Prescribed
Characterstics method of Standard as per
test used Regulation No.2.12
of Food Safety &
Standrds (Food
Products and Food
Additive)
Regulations, 2011.
1 Test for oil DGHS Negative Absent
soluble Manual
synthetic Method of
colour Test
2 Test for -do- Negative Absent
mineral oil
3 Test for water -do- Positive Absent
soluble (Tartrazine)
synthetic
colour
Opinion: Sample of Moong Masala Vadi does not conform to the standards laid down under Regulation No.2.12 of FSS (Food Products Standards & food Additives) Regulations 2011, as the sample shows presence of water soluble synthetic colour. Further, the label of the sample contravenes Regulation No.2.2.2* (10) of FSS (Packaging & Labelling) Regulations, 2011.
The sample is thus unsafe under Section 3(1)(zz)(v) and misbranded under Section 3(1) (zf) of FSS Act, 2006." He submitted that it is based on the averments made in the complaint, that the summoning order dated 20.04.2015, Annexure P-6, was issued, without giving out any reasons.
Submissions:
Learned Senior counsel, at the outset, referred to Section 47 of FSS Act, 2006 and Regulation 2.3.1 of the (Food Products Standards & Food Additives) Regulations, 2011, which read thus:-
5 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 6 "47. Sampling and analysis - (1) When a Food Safety Officer takes a sample of food for analysis, he shall:
(c) (i) send one of the parts for analysis to the Food Analyst under intimation to the Designated Officer;
(ii) send two parts to the Designated Officer for keeping these in safe custody; and
(iii) send the remaining part for analysis to an accredited laboratory, if so requested by the food business operator, under intimation to the Designated Officer:
Provided that if the test reports received under sub-clauses (i) and (iii) are found to be at variance, then the Designated Officer shall send one part of the sample kept in his custody, to referral laboratory for analysis, whose decision thereon shall be final".
Regulation 2.3.1, reads thus:-
"2.3.1: Quantity of sample to be sent to the Food Analyst-
(1) The quantity of sample to be sent to the Food Analyst/Director for analysis Shall specified in the table below:
Sr.No. Article of Food Approx Quantity to be supplied
50. Proprietary Food (Non 500 Grams standardized foods)
52. Foods not specified 500 Grams While referring to the aforesaid provisions, the learned Senior counsel had raised his first plank of arguments, to submit that all products fall in separate categories and the one that has not been specifically mentioned, is categorized under proprietary foods, within either Sr.No.50 or
52. The product, of which the sample was drawn being not specifically categorized, would therefore fall, in either of the above serial numbers.
Having said that he submitted that the quantity of the sample to have been drawn of food items of either of the two categories and sent for analysis ought to have been 500 grams. It is further submitted that even the laboratory, the report of which is Annexure P-3, has described the product, the sample of which was sent, as proprietary food. His submission was that 6 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 7 there can be, thus, no dispute that the sample of the product in this case, be it, considered in any of the aforementioned categories i.e. at Sr no. 50 or 52, ought to have been 500 grams and nothing less.
In this regard, he also drew the attention of this Court to para 25 of this petition, wherein the ground has been taken by the petitioners that the sample drawn and sent for analysis was in contravention to Regulation 2.3.1. inasmuch as the samples sent for examination to the laboratory at Chandigarh and to the Referral Laboratory Gaziabad were of 200 grams or 250 grams whereas they ought to have been 500 grams. A reference is made to the corresponding para 25 of the reply filed by the State, wherein it has been averred that it was inadvertently mentioned in the complaint that purchased product was 2000 grams instead of 800 grams. Learned Senior counsel submitted that the averments of reply are even falsified from a bare perusal of the receipt, Annexure P-10, which is of purchase of 2000 grams of the product by the complainant himself, as also, from Annexure P-11, it being the spot memo, specifically in para 4 thereof wherein it finds mentioned the quantity of purchased item to be 2000 grams, which also affirms the presence of Nirmal Singh, Food Clerk, who was the witness to drawing of the sample.
Learned Senior counsel submitted that in paras 5 and 6 of the complaint it has been mentioned that 2000 grams of the product was purchased, which was divided into four different equal packets to be sent for analysis. Thus, making it clear that each sample was of 500 grams. However, as is apparent from the reports Annexures P-3 and P-4, the samples which were received by the laboratories were 200 grams and 250 grams respectively.
7 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 8 It is his further submission that even if the quantity of purchased product is taken to be true as 800 grams, in that eventuality it has not been explained by State in its reply to this petition that as to how the sample sent and received at the Gaziabad Laboratory was 250 grams, when they had stated that four samples of equal quantity were drawn out from the product, which would have been 200 grams each.
The second plank of arguments of the learned Senior counsel was that the since the shelf life of product had expired on 11.12.2013, therefore, valuable rights of the petitioners to get the second sample accurately analysed had been jeopardized, the complaint is liable to be quashed solely on this ground, as in catena of judgments it had been held that in order to safeguard the right of the accused to have the second sample tested, it is incumbent upon the prosecution to expedite the process so that the right does not get lost.
Learned Senior counsel's third plank of arguments was that the complainant was neither competent to draw the sample nor to file the complaint, as he was never notified to be the Food Safety Officer till 21.11.2011, as required by Section 37 of the FSS Act, read with Rule 2.1.3 (2) of the Food Safety and Standard Rules, 2011.
A reference by him is made to Section 9 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as '1954 Act'), to submit that the Food Inspectors have to be notified by the Central or State Govt., as the case may be.
In this regard, he submitted that the complainant, who appeared as PW-1, had also in his cross-examination admitted that he was not notified as a Govt. Food Inspector under the Prevention of Food Adulteration Act, at 8 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 9 the time of taking sample in this case and on 08.08.2011. He further admits that the Food Inspectors under the Food Safety and Standard Act, 2006 are to be appointed as Food Safety Officers. The relevant portion of cross- examination reads thus:-
"I was not notified as GFI under PF Act at the time of sampling in this case and on 08.08.2011. It is correct that as per Ex P1, all the Food Inspectors under PF Act were appointed as FSO under the Food Safety and Standard Act. It is correct that on that date, I was not notified as Food Inspector under the prevention of Food Adulteration Act. It is correct that according to notification Ex.P1, I was not duly notified FSO."
He also referred to Notification dated 08.08.2011, Annexure P-8 to submit that all Food Inspectors who were previously notified under the 1954 Act were re-notified as Food Safety Officers under the New Act, namely, Food Safety and Standard Act, 2006 (hereinafter referred to as '2006 Act'), whereas the complainant was notified as Food Inspector, vide notification dated 21.11.2011, Annexure P-9, under the 1954 Act and not as Food Safety Officer, the nomenclature used in the 2006 Act, while under the 1954 Act which stood already repealed on 04.08.2011, the nomenclature used was Food Inspector. Meaning thereby that neither was the complainant a Food Inspector notified under the 1954 Act prior to 04.08.2011, nor was he thus re-notified vide the notification dated 08.08.2011, vide which only those notified previously were re-notified under the 2006 Act, now as Food Safety Officers.
He thus submitted that by no stretch of imagination could the complainant be said to be a person competent to draw a sample and to file the impugned complaint.
9 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 10 Learned Senior counsel's last plank of arguments was that though in the complaint, the manufacturer of the product, the sample of which was purchased, was arrayed as accused No.3, however the complaint qua it was dismissed for non-prosecution on 06.12.2018, Annexure P-13, on account of the fact that proper address was not given of the said accused, inspite of repeated directions by the Court. The said order reads thus:-
"Complainant was directed to file correct address for the service of the accused No.3 but inspite of repeated directions, the same has not been filed and today was the last chance granted to the complaint but still correct address has not been filed by the complainant. Accordingly no ground is made out adjourn the case further for this purpose. Hence, the complaint agaist accused No.3 stands dismissed for non-prosecution. Now, to come upon 14.01.2019 for pre charge evidence against the accused No.1 and 2. PWs be summoned."
The aforesaid order never came to be assailed by the complainant and thus attained finality and no effort seems to have been made to rectify the grave error. Reliance is placed by the learned counsel on Md.Azhar vs. State of Bihar, MANU/BH/0868/2009 and Abhishek Abhiranjan @ Babu vs. State of Bihar 2007 SCC Online Pat 1439 to contend that it was as a matter of fact the manufacturer accused No.3 who could be held liable for mis-branding or otherwise not the petitioners as they were the sellers, as rightly reflected in para 16 of the complaint itself. Learned Senior counsel, however, fairly submitted that dismissal of the complaint qua the manufacturer, would not in itself absolve the petitioners of their responsibility, in terms of Section 26 of the 2006 Act. He submitted that the letting go of the manufacturer, who though was primarily responsible for the product, being its manufacturer solely on the 10 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 11 ground that the complainant was unable to furnish the address or locate the premises of the said manufacture, otherwise smacks of malafide intention and extraneous considerations, inasmuch as the prosecution having been initiated in the State of Punjab, within which the manufacturer was having its unit at Ludhiana, seems not plausible that its address could not be ascertained. Reliance was placed on the judgments regarding procedure of sampling not complied with in re: State of H.P. Vs. Rakesh Kumar and another 2011(1) FAC 255(HP); Om Parkash Gupta vs. The State (1977) 9 PLR 140 (P&H); right of re-analysis in case of expiry of product in re: State of Haryana vs. Unique Farmaid (P) Ltd. and others (1999)8 SCC 190, Municipal Corporation of Delhi vs. Ghisa Ram AIR 1967 SC 970, M/s Godrej Industries Ltd. vs. Food Inspector, Northern Railway, 2014(2) FAC 91 (P&H), Hindustan Lever Ltd. vs. State of Punjab and others 2011(1) FAC 192 (P&H); regarding discrepancies between quantity of sample seized vis a vis quantity analysis in re: Ajoy Srivastava and others vs. The State of West Bengal MANU/WB/0341/1998 (WB), complainant not notified under regulations in re: Sailen Ganguly vs. State of West Bengal MANU/WB/1346/2016 (WB) and Rajesh Kumar Yadav and others vs. State of UP and others 2011 (2) FAC 321.
Per contra, first submission of learned State counsel was that the petition is not maintainable in view of the fact that summoning order is revisable and instead of present petition filed under Section 482 Cr.P.C., a revision ought to have been filed and even the charges that have been framed as also not been challenged in the present petition. In this regard, learned counsel relies on judgments in the case of Rathish Babu 11 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 12 Unnikrishnan vs. The State (Govt. of NCT Delhi) and another Criminal appeal No.694-695 of 2022 decided on 26.4.2022 and Ramveer Upadhyay and another vs. State of UP and another SLP(Criminal) No.2953 of 2022 decided on 20.4.2022 to contend that the power under Section 482 Cr.P.C. should not be exercised in such cases as the allegations in complaint being true or untrue would have to be decided in the trial.
Learned State counsel further submitted regarding the quantity of samples drawn by making a reference to Annexure P-12 that though it is mentioned in the Form 5A that the purchased item was 2000 grams, which was inadvertently mentioned, however, it was specifically mentioned that the product was divided in four equal parts of 200 grams each and put in four neat dried clean bottle jars, which shows the purchased product was 800 grams. Even as per the lables on the packets also the quantity was mentioned as 200 grams with MRP of Rs.45 per packet, according to which the total amount comes to Rs.180/-, for which the receipt Annexure P-1- was issued, which also goes to show the quantity of the purchased product was 800 grams.
He, however, did not dispute the fact that Regulation 2.3.1 specifies the approximate quantity to be supplied for analysis for proprietary food is 500 grams but draws the attention of this Court to Regulation 2.4.2, as per which, had the laboratory received an inadequate quantity of sample or the same was unfit for analysis it would have itself returned it within a period of 07 days, which in the present case was not done, thus, no fault could be found in the entire process and the petitioners cannot take the benefits of the amount of quantity of sample sent, once the 12 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 13 laboratory has not raised any objection for it to be inadequate. Therefore, it is his submission that once the sample sent was accepted by the laboratories, that was the end of the matter. Learned State counsel submitted that the complainant was, as a matter of fact notified as Food Safety Officer vide notification dated 08.08.2011, in view of which he was competent to draw the sample in the year 2013 as well as to file the complaint. He further submitted that even if the complaint got dismissed qua the manufacturer, that would not absolve the petitioners of their responsibility as per the 2006 Act.
Learned Senior counsel in rebuttal as his final plank of arguments submitted that it has not been controverted by the learned State counsel that the sample sent to the Referral Laboratory at Gaziabad was an expired sample inasmuch as the shelf life of the product had itself expired on 11.12.2013. He further referred to proviso of Section 47 of the 2006 Act to submit that the prosecution can only be made on basis of the analysis of the Referral Laboratory, which would be final, though had an opportunity to get the second sample analysed by the petitioners from a designated Laboratory, been afforded to them, then would the report of Referral Laboratory have been final. In the present case, though the Referral Laboratory, had analysed the sample, however, it was for more than one reason that it could not have been taken into consideration, firstly; that it was drawn from a product, the shelf life of which had expired and secondly; that the sample drawn and sent for analysis, was also not of the quantity as mandated by Regulation 2.3.1. Further, the submission was that the sanction of prosecution, as a matter of fact was accorded by the Commissioner Food Safety, vide order dated 25.2.2015, Annexure P-5, 13 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 14 basis of which was the analysis report dated 15.05.2014, Annexure P-4 of the Food Laboratory at Gaziabad, that according to the learned Senior counsel was based on an expired sample. He therefore, submitted that taken from either which way, the complaint has to fall alongwith the summoning order.
He further submitted that even if in the worst case scenario, the assertion of the State is taken to be true to the effect that it was inadvertently mentioned that the purchased product was of 2000 grams which as a matter of fact was 800 grams, out of which four equal parts of 200 grams each were drawn, in such an eventuality, the tampering of the samples is apparent on the face of it, as the sample admittedly sent to the Referral Laboratory Gaziabad was 250 grams and thus the report of the Food Laboratory, Gaziabad which was the sole and final basis of launching prosecution, cannot be relied upon. He further submitted that in so far as the submission of the learned State counsel is concerned that the complainant was duly authorized and competent to draw the sample as well as to file the complaint as per the notification dated 08.08.2011, Annexure P-8 is concerned, the same is also contrary to the admission made by him in his cross-examination.
In so far as the objection of the learned State counsel with regard to maintainability of the present petition, learned Senior counsel placed reliance on the judgments of Hon'ble the Supreme Court of India in the cases of Dhariwal Tobacco Products Ltd. and others Vs. State of Maharashtra and another (2009) 9 SCC 370 and Prabhu Chawla Vs. State of Rajasthan AIR 2016 SC 4245.
14 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 15 Maintainability:
A reference may be made to a judgment of Hon'ble the Supreme Court of India in the case of Dhariwal Tobacco Products Ltd.
(supra), the paras relevant to the present case reads thus:-
"2. Whether an application under Section 482 of the Code of Criminal Procedure, 1973, (for short `the Code') can be dismissed only on the premise that an alternative remedy of filing a revision application under Section 397 of the Code is available, is the question involved herein.
10. Inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of. (See Krishnan and another v. Krishnaveni and another, [ (1997) 4 SCC 241 ] ).
In fact in Adalat Prasad v. Rooplal Jindal and others, [ (2004) (7) SCC 338) ] to which reference has been made by the learned Single Judge of the Bombay High Court in V.K. Jain and others (supra) this Court has clearly opined that when a process is issued, the provisions of Section 482 of the Code can be resorted to.
13. We may furthermore notice that in Central Bureau of Investigation v. Ravi Shankar Srivastava, [ (2006) 7 SCC 188 ] this Court while opining that the High Court in exercise of its jurisdiction under Section 482 of the Code does not function either as a court of appeal or revision, held :-
"7. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise.
The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon 15 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 16 them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision.
Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
Hon'ble the Supreme Court of India in the case of Prabhu Chawla (supra) has held as under:
" In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in the case of Dhariwal Tobacco Products Ltd. (supra) and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in the case of Sanjay Bhandari (supra) passed by another learned Single Judge on 05.02.2009 in S.B. Criminal Miscellaneous Petition No. 289 of 2006 which is impugned in the connected Criminal Appeal arising out of Special Leave Petition No. 4744 of 2009."
16 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 17 Further in the case of Jugesh Sehgal Vs. Shamsher Singh Gogi reported as (2009)14 SCC 683, the scope and ambit of the power of High Court under Section 482 Cr.P.C. was elaborated by Hon'ble the Supreme Court of India. Paras 12, 13, 14 and 15 thereof read thus:-
"12. The next question for consideration is whether or not in the light of the afore-mentioned factual position, as projected in the complaint itself, it was a fit case where the High Court should have exercised its jurisdiction under Section 482 of the Code?
13. The scope and ambit of powers of the High Court under Section 482 of the Code has been enunciated and reiterated by this Court in a series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, it is unnecessary to burden the judgment by making reference to all the decisions on the point. It would suffice to state that though the powers possessed by the High Courts under the said provision are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. [See: Janata Dal Vs. H.S. Chowdhary & Ors.1, Kurukshetra University & Anr. Vs. State of Haryana & Anr.2 and State of Haryana & Ors. Vs. Bhajan Lal & Ors.3]
14. Although in Bhajan Lal's case (supra), the court by way of illustration, formulated as many as seven categories of cases, wherein the extra-ordinary power under the afore-stated (1992) 4 SCC 305 (1977) 4 SCC 451 1992 Supp (1) SCC 335 provisions could be exercised by the High Court to prevent abuse of process of the court yet it was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which such power could be exercised.
15. The purport of the expression "rarest of rare cases"
has been explained very recently in Som Mittal Vs. 17 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 18 Government of Karnataka4. Speaking for the three-Judge Bench, Hon'ble the Chief Justice said:
"When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection."
In view of the afore referred judgments and in view of the facts and circumstances of this case, the judgments relied upon by the State are not applicable.
Reverting to the facts of the present case, the very basis of filing of the compliant i.e. quantity of the purchased product; sample drawn; report received, the competence of the officer, who drew the sample and filed the complaint are itself in question. Thus, the present petition is maintainable, in view of the peculiar facts and circumstances of this case and law laid down in the afore referred judgments.
Discussion and Analysis Core issue involved is, whether a seller of a product, found misbranded and unsafe for human consumption, can be held liable, on basis of a sample drawn in contravention to Regulation 2.3.1. of the Act and by the Food Inspector, who had not been duly notified as required by the Act, as also, the sample is analysed by the Referral Laboratory, the report of 18 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 19 which is the basis of launching prosecution, after the shelf of the product itself had expired.
In the case of Rakesh Kumar (supra), the High Court of Himachal Pradesh, held thus:
"2. This appeal can be disposed of on a short legal ground. Admittedly, the Food Inspector in the present case purchased only 600 grams of Urad Whole 'Daal'. He divided the same into three portions of 200 grams each and one part of 200 grams was sent to the Public Analyst, Kandaghat. Rule 22 of the Prevention of Food Adulteration Rules as it stood prior to its amendment on 29.7.2002 provided that in case of pulses covered under item No.19, the quantity of the sample required to be sent to the Public Analyst for analysis was 250 grams.
3.The learned Court below held that since adequate quantity was not sent to the Public Analyst, the report of the Public Analyst could not be relied upon. The learned Lower Appellate Court has placed reliance on the judgment of the Apex Court in Rajaldas G.Pamnani Vs. State of Maharashtra, AIR 1995, SC 189. In the case before the Apex Court, a sample of compounded asafoetida was taken and hundred grams was sent to the Public Analyst for analysis. Rule 22 of the aforesaid Rules required that 200 grams of compounded asafoetida had to be sent for analysis. The Apex Court held that when the requisite quantity in terms of Rule 22 is not sent then no reliance can be placed on the report of the Public Analyst. It would be appropriate to refer to the following observations of the Apex Court:-
"The Appellant also contended that samples were not taken in accordance with the provisions of the Act and the rules thereunder. Rule 22 states that in the case of asafoetida the approximate quantity to be supplied for analysis is 100 grams and in the case of compounded asafoetida 200 grams. The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that noncompliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by the statute."
4.No law to the contrary has been brought to my notice. In view of the law laid down by the Apex Court, it is 19 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 20 apparent that in the present case also, there has been infraction of Rule 22 and, therefore, no reliance can be placed on the report of the Public Analyst. The appeal is accordingly rejected. No order as to costs."
In the case of Om Parkash Gupta (supra), this Court, held thus:-
"5. In Rajaldas G. Pamnani v. State of Maharashtra MANU/SC/0188/1974:A.I.R.1975 S.C. 189, their Lordships expressed a firm view that the non-compliance of the provisions of Rule requiring a particular quantity of a sample of food to he sent for purposes of analysis, was not a mere infraction of the Rules but would also cause injustice. It was further held that the quantities mentioned in the Rule were required for a correct analysis and shortage in this quantity was not permitted by the statute. There cannot be a better case for the application of this dictum than the one in hand.
6. It is not disputed that the requirement of the Rule, so far as the Cotton Seed Oil is concerned, is that a minimum quantity of 125 grams of oil should be sent for analysis. The petitioner was well within his right to show that the quantity of oil sent to the Public Analyst was less than the minimum prescribed under the Rules. The procedure adopted by the trial Court in weighing the contents of the part of the sample lying with the Food Inspector could not be utilized for coming to a finding that 125 grams of Cotton Seed Oil had been actually sent to the Public Analyst for examination. The trial Court observed in its order dated May 10, 1976. "From statement of the Food Inspector that the sample purchased was divided into three equal parts and the circumstances of the weight of contents of one of the sample bottles having been found to be 135 grams, it can be presumed that the actual weight of the oil purchased from the accused was 135x3=405 grams."
There is no warrant for such a presumption when the Food Inspector had clearly stated that he had taken into possession only 375 Ml. oil in all. It is quite well known that the specific gravity of Cotton Seed Oil would be less than that of water. In fact, a reference to the Booklet "Specification for Cotton Seed Oil" issued by the Indian Standards Institution (Second Revision) indicates that the requirement for Cotton Seed Oil in respect of specific gravity is 0.910 to 0.920. This is naturally in relation to the specific gravity of water, which is taken as 1. From this point of view, the 375 ml. of oil purchased from the petitioner would work out 20 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 21 to much lesser number in terms of milligrams and even if all the three parts of the sample are presumed to be equal in quantity (for which there is no definite material), each of the samples would, in any, case, contain less than 125 milligrams of oil. This would directly attract violation of Rule 22 Item 6.
7. At one stage, for the satisfaction of this Court on the point as to whether the required quantity of oil had been sent to the Public Analyst or not, it was found expedient to summon the Public Analyst himself and this was done. Dr. Hargobind Singh, Public Analyst, Punjab, appeared in this Court, and deposed that there is no mention in the record pertaining to this case, as to how much quantity of Cotton Seed Oil had been received in the sample for purposes of analysis. In face of this statement and in the absence of any other material produced by the prosecution to show that the requisite quant of oil had been sent for analysis, the petitioner was clearly entitled the benefit available to him under the law.
8. In regard to the invoking of powers under Section 482 of the Code of Criminal Procedure, it is indeed well settled that the inherent jurisdiction of this Court would be utilized with reluctance so as to interfere with the proceedings at an interlocutory stage, but at the same time, it must be kept in mind that this Court can and should exercise these powers to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice, on the circumstances noticed above, the facts as alleged by the prosecution, even if accepted at their face value, cannot sustain conviction on account of a patent illegality. It would be not only futile but improper to allow these proceedings to continue for an indefinite period. It is, therefore, ordered that the proceedings pending against the petitioner under Section 16(1)(a)(i) read with Section 7 of the Act, in the Court of the Chief Judicial Magistrate, Patiala are quashed."
Adverting to now are, a few facts, as admitted between the parties that are essential for the determination of the present controversy. Thus, it may be accentuated at the outset that, the Regulation 2.3.1 does in fact lay down the quantity of sample to be sent for examination to be 500 grams, of the products falling in the list of proprietary foods under Sr.50 or 21 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 22 52; quantity of sample of the product sent up for examination 200/250 grams; the shelf life of the product had expired on 11.12.2013, whereas the sample was sent thereafter to the Referral Food Laboratory, Gaziabad on 17.4.2014; proviso to Section 47 of the 2006 Act reveals that the decision of the Referral Laboratory would be final, which in this case was based on a sample, the shelf life of the product from which it was drawn had since expired; the opportunity to get the analyzed the second sample in terms of 47(c)(iii) of the Act by the petitioners could not be availed of, in view of the shelf life of the product having been expired, as has been mentioned in para 27 of the petition.
In this case, the Court vide an order dated 9.7.2019, had directed the Additional Chief Secretary to file affidavit, when the learned State counsel had admitted that there were mistakes in the complaint. The said order reads thus:-
"It is admitted by learned State counsel that there are mistakes in the complaint as also the quantity of material sent for samples. Learned counsel for the State to provide this Court the data as to what is the conviction rate and why these mistakes happen in important cases of food adulteration which affects the society at large.
Adjourned to 16.07.2019.
Additional Chief Secretary who heads the Department is directed to file his affidavit while replying to the observations made by this Court as well as the contentions raised in the petition."
In the case of Unique Farmaid (supra), Hon'ble the Supreme Court of India, held as under:-
"11. Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened 22 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 23 to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT (1996) 10 SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal & Ors., [1998] 5 SCC 343 under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram, AIR (1967) SC 970; Chetumal v. State of Madhya Pradesh & Anr., [1981] 3 SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf & Anr., [1999] 2 SCC 400 all under the Prevention of Food Adulteration Act, 1954."
Further, in the case of Ghisa Ram (supra), Hon'ble the Supreme Court of India, observed as under:-
"7. It appears to us that when a valuable right is conferred by s. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive -evidence of its contents. Obviously, the right has been given to the vendor in order that, for his, 23 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 24 satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.
8. We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.
9. xx xx xx
10. Xx xx xx
11. In Municipal, Corporation, Gwalior, v. Kishan Swaroop,(2) it was held that, where there was delay in launching the prosecution, it deprived the accused of the valuable right to challenge the report of the Analyst in the manner prescribed by s. 13(2) of the Act, and when this right was denied to the accused for no fault of Ms, but wholly due to the inordinate laches of the prosecution, no weight could be given to the report of the Public Analyst. That decision proceeded on the basis of the value of the report of the Public Analyst being affected by the fact that the accused had been deprived of his right to challenge that report by obtaining a certificate from the Director of the Central Food Laboratory. The report of the Public Analyst, as we have said earlier, does not cease to be good evidence merely because a certificate from the Director of the Central Food Laboratory cannot be obtained. The reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution."
24 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 25 In the case of M/s Godrej Industries Ltd. (supra), this Court, held thus:-
"1. This petition under Section 482 Cr.P.C is for quashing of complaint No.560-A of 2008 dated 29.04.2008 (Annexure P-6), under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for brevity 'the Act') and the summoning order dated 29.04.2008 (Annexure P-7).
2. xx xx xx
3. xx xx xx
4. The petitioner is seeking quashing of the complaint and the summoning order on the short ground that the shelf life of the sample had expired in October, 2007, whereas the complaint was filed on 29.04.2008. Hence, the valuable right of the petitioner under Section 13 (2) of the Act to get the sample re-analysed from the Central Food Laboratory, has been lost.
5. xx xx xx
6. In view of the fact that the shelf life of the sample had expired in October, 2007, this Court is of the opinion that it would be an abuse of the process of the Court to relegate the petitioner to appear before the trial Court to face the proceedings in a trial, which ultimately will end in acquittal. A Co-ordinate Bench of this Court in case Hindustan Lever Ltd. Vs. State of Punjab and others, Crl. Misc. No.M-36198 of 2005 (decided on 06.10.2010), had quashed the complaint on the ground that since the shelf life of the food article had expired, therefore, the valuable right of the petitioner to get the second sample tested from a laboratory had been jeopardized.
7. The Hon'ble Supreme Court in case State of Haryana Vs. Unique Farmaid (P) Ltd. and others, (1999) 8 Supreme Court Cases 190, has examined the provisions of re-testing of the second sample and observed that once the shelf life of the sample had expired, the maintainability of the complaint is not made out. The Hon'ble Supreme Court has further observed as under:-
Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy.
25 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 26 Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two Prasher Ajay 2013.08.17 13:45 I attest to the accuracy and integrity of this document High Court Chandigarh opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT (1996) 10 SC 480, this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused...."
8. In the light of the above discussion, this Court is of the view that since the shelf life of the sample had expired in October, 2007 and the complaint was filed on 29.04.2008, therefore, the valuable right of the petitioner to get the second sample tested from the Laboratory had been jeopardized. Thus, the complaint is liable to be quashed on this ground."
In the case of Hindustan Lever Ltd. (supra), this Court held thus:-
"20. A perusal of the form VI filled in by the Food Inspector at the time of drawing the sample reveals that the sample was drawn from the food article which had been manufactured in April, 2002 and it was best before 12 months from the date of manufacture at minus 18 degree Celsius or below. The complaint in question was, however, filed on 25.3.2003. Thus, the shelf life of the food article had almost expired. The valuable right of the petitioner to get the second sample 26 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 27 tested from a Laboratory had, thus, been jeopardized. On this ground alone, the complaint in question deserves to be quashed."
Even if, the stance of State is taken at its possible best, that the quantity of the product purchased was only 800 grams, of which four samples of equal parts were drawn, the State is at a loss to explain as to how sample measuring a quantity of 250 grams was sent to the Referral Laboratory, Gaziabad; this fact alone makes the process untrustworthy and the possibility of tempering cannot be ruled out; further the State has been unable to demonstrate that instead of 2000 grams only 800 grams of the product was purchased, which assertion of it is belied from the receipt of the product Annexure P-10 and the Form V-A; the non-grant of the opportunity to the petitioners to get the second sample analyzed by the accredited laboratory also jeopardized its valuable right; the Notification dated 21.11.2011 having been issued under the repealed 1954 Act instead of 2006 Act, which came into being w.e.f. 4.8.2011, coupled with the admission of the complainant to the effect that he was not notified at the time of taking the sample in the case and on 8.8.2011, the relevance of this date being that all Food Inspectors, who had previously been notified under the 1954 Act, prior to 4.8.2011, were re-notified under the 2006 Act vide the notification issued on 8.8.2011, further creates a dent in the prosecution version. This Court hastens to add that once the complainant was not ever notified under the 1954 Act, the question of his being re- notified on 8.8.2011, under 2006 Act does not arise. Notification in his favour was issued on 20.11.2011 under the 1954 Act, after it was repealed on 4.8.2011, was meaningless, at least, as regards the present case is concerned; the manufacturer having not been pursued and permitted to go 27 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 28 scot free, merely on account of non-furnishing of correct address, is not something that was expected of the State, especially, when the product belonged to the manufacturer, for the misbranding of which, it was liable, was having its unit within the State itself; no effort to rectify the aforesaid error has been brought on record; once the State had decided to inspect the premises of the petitioners and had even drawn the sample of the product, got it examined, it was then incumbent on it to have undertaken all necessary care and precaution to take the issue to its logical end in the best possible manner, which, as per the facts of the present case, was apparently not done.
Scrutinizing the credibility of the version The prosecution case must be based on evidence which must be unimpeachable and not shrouded by doubt. The very factum of drawing of a sample by a person, who as per the documents on record, was not competent, as has also been admitted by him in his cross-examination, the quantity of sample drawn once found to be not in terms of the provisions of the Act and the consequent unsuccessful effort by the State in its reply filed to this petition, to cover it up by coining of a new version, that in fact the quantity of the product purchased was lesser, but for which also it miserably failed to evidence the said assertion, though the receipt proved it otherwise. The un-relented effort of the State to insist, though without any legs to stand that the complainant was a person competent duly notified as the Act required, which though in the teeth of its notifications coupled with the own admission of the complainant stood demolished like the house of cards. Not being able to establish by their effort to somehow prove that sample drawn was commensurate to the quantity of the product purchased, 28 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 29 especially being faced with the fact that as to how the sample that was stated by the State itself, to be drawn in equal parts out of, even if assuming, the quantity purchased was 800 grams and not 2000 grams, led to sending 250 grams to the Referral laboratory, instead of 200 grams, which would be the quantity of each sample when 800 grams would be divided in 4 equal portions.
Still further, the delay in sending the sample to the referral laboratory, which was admittedly sent after the shelf life of the product itself got expired, is yet another fact that does not inspire confidence in the version of the State, as the basis of initiation of prosecution, which even otherwise, in wake of other attending facts and circumstances, as mentioned above, was standing on a weak wicket. Therefore, gauging the version of the State from the intrinsic evidence available, the credibility of its case, is shaken.
Conclusion:
Hon'ble the Supreme Court of India in the case of State of Karnataka vs. L. Muniswamy and others AIR 1977 SC 1489 had held as under:-
"... Section 482 of the New Code, which corresponds to s. 561-A of the Code of 1898, provides that: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the; ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding 29 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 30 ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the, ends of mere law though justice has got to be administered according to laws made by the, legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction."
The aforestated discussion, the peculiarity of the facts and circumstances of this case as also the judgments in the cases of Dhariwal Tobacco Products Ltd., Prabhu Chawla, Jugesh Sehgal and L. Muniswamy (supra), have persuaded this Court to form a firm view, that allowing the proceedings to continue in the present case would be an abuse of process of law and to secure the ends of justice, the proceedings ought to be quashed. As a result whereof, the present petition is allowed. The complaint, the summoning order dated 15.6.2015, Annexure P-6 and its consequent proceedings are quashed.
Before parting with the judgment, it may be noticed that although the State in the right earnest initiates the prosecution under this Act, by carrying out the inspections, that are a must to be done to achieve its objectives, to safeguard the citizens, as also, for it, to act as a deterrent to others, but this Court is constrained to note that somehow during the process, it is apparent that the eagerness to bring the guilty to the book seems to fade away, which becomes evident, when serious discrepancies occur, either in not drawing the samples in the manner required or the same being not commensurate to the quantity to be sent for examination, as per 30 of 31 ::: Downloaded on - 12-10-2022 05:41:57 ::: CRM-M-25794-2019 31 the Act/Regulations or requisite samples are not sent by adhering to the time line or in not timely filing complaints or with due competence of the complainant or authority or not pursuing the cases diligently against the person(s) responsible etc. which makes those who flout the Act go scot free by taking advantage of the lacunas in the prosecution, rendering the entire exercise as undertaken by the State machinery, futile.
The State is directed to forthwith look into these aspects and ensure strictest compliance of the provisions of the Act, in order to achieve the purpose and object of its enactment and the repercussions of food adulteration on the citizens, for which it is, thus, imperative that the prosecution under this Act must be absolutely flawless.
A copy of this order be sent to the Chief Secretaries of Punjab, Haryana and the Advisor to the UT Administration for issuing the necessary guidelines, as deemed appropriate in this regard.
(AMAN CHAUDHARY)
11.10.2022 JUDGE
gsv
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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