Jharkhand High Court
Dulal Ghosh vs State Of Jharkhand & Anr on 7 March, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Miscellaneous Petition No. 1555 of 2011
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Dulal Ghosh @ Dulal Chandra Ghosh son of Ranglal
Ghosh resident of M/s. Rashik Lal Restaurant,
PO & PS Doranda, District Ranchi ... ... Petitioner
Versus
1.The State of Jharkhand
2.Krishna Prasad Singh S/o not known, Food Inspector,
Ranchi, PO, PS & Distt. Ranchi ... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Anil Kumar Sinha, Senior Advocate
For the Opposite Party-State : Mr. H. K. Shikarwar, A.P.P.
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9/07.03.2017Heard Mr. Anil Kumar Sinha, learned senior counsel for the petitioner and Mr. H. K. Shikarwar, learned A.P.P. for the State.
2. In this application, the petitioner has prayed for quashing of the entire criminal proceedings in connection with C-III 211 of 2005 including the order dated 18.11.2005 passed by the learned S.D.J.M., Ranchi whereby and whereunder cognizance has been taken for the offence punishable under Section 16(a)(i) of the Prevention of Food Adulteration Act, 1954.
3. The brief facts leading to institution of the criminal case is that, a sample of Paneer was collected from M/s. Rasiklal, Veg Restaurant, Doranda Bazar, Ranchi and was sent for chemical analysis by the Public Analyst and the same was found to be adulterated as the Paneer did not conform to the prescribed specification under Prevention of Food Adulteration Rules having less fat than prescribed. The prosecution report was submitted before the learned S.D.J.M., Ranchi who had been pleased to take cognizance for the offences punishable under Section 16(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act').
4. Mr. Anil Kumar Sinha, learned senior counsel for the petitioner has raised certain points in support of the petitioner. It has been stated that the quantity of Paneer which was collected by the Public Analyst was not in conformity with the provisions of the Act which prescribes a minimum quantity of 250 gm. to be taken as a sample for the purpose of testing. It has been stated that the public analyst has taken sample -2- of 200 gm. and therefore, it would not be surprising that some differences would arise with respect to the fat contained in the Paneer so collected. Learned senior counsel further submits that no specification has been made with respect to the Paneer being prepared from cow's milk or buffalo's milk as the fat content would depend on the milk of the respective animals, since in the case of buffalo's milk, the fat content would be much more than that in the case of Paneer made from cow's milk. Learned senior counsel further submits that Section 8 of the Act prescribes the qualification and appointment of Public Analyst and since the appointment of Sri Sidheshwar Sharma as a Public Analyst during the period in question was never published in the official gazette, therefore, the Public Analyst being not qualified under the Act, the entire criminal proceeding instituted against the petitioner is vitiated. It has further been submitted that the then Public Analyst was a contractual employee of MADA, who did not have the prescribed qualification for being appointed as a Public Analyst. Furthering his argument, learned senior counsel submits that MADA does not have the necessary facilities for analysing the food commodities which are taken for coming to a conclusion as to whether they are adulterated or not and the State Government does not have any specialised lab to come to such conclusion. Learned senior counsel thus submits that in view of the technical shortcomings with respect to institution of the case apart from the merits which has arisen in the prosecution case itself, the entire criminal proceedings as against the petitioner deserves to be quashed and set aside.
5. Mr. H. K. Shikarwar, learned A.P.P. for the State has opposed the prayer made by the petitioner and has stated that Sri Sidheshwar Sharma was sufficiently qualified to be appointed as a Public Analyst and in fact, there was a notification which was sent for its publication. The learned State counsel has referred to the counter affidavit filed by him and has further stated that in spite of best efforts made by the department, the said notification could not be located as yet.
6. Since the contention of the learned senior counsel for the petitioner with respect to the appointment of Sri Sidheshwar Sharma as Public Analyst has not been notified in the official gazette seems to prima-facie have sufficient force, concentration has been made with -3- respect to the said contention and if in case, this Court negates the said argument, reference will be made to the other points raised by the learned senior counsel for the petitioner. In order to appreciate the argument raised by the learned senior counsel, it would be necessary to refer to Section 8 of the Act, which reads as under:
"Section 8 Public Analyst.- The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be:
Provided that no person has any financial interest in the manufacture, import or sale of any article or food shall be appointed to be public analyst under this section (provided further that different public analysts may be appointed for different articles of food)."
7. A perusal of Section 8 would thus reveal that a person having prescribed qualification, if he is appointed as a Public Analyst, the same has to be published in the official gazette. The counter affidavit which has been filed by the State reveals a notification dated 19.06.2003 from which it appears that in exercise of the powers conferred under Section 8 of the Act, Sri Sidheshwar Sharma, who was appointed on a contractual basis has been notified to be a Public Analyst. Subsequently, another notification was issued on 13.08.2005, once again notifying Sri Sidheshwar Sharma as a Public Analyst. In the notification dated 13.08.2005, it appears that the same had been sent for its publication in the official gazette. Although this application was filed in the year 2011, no counter affidavit has been filed by the State replying to the primary contention advanced by the petitioner with respect to the appointment of Sri Sidheshwar Sharma as a Public Analyst not being notified in the official gazette, and in spite of expiry of a considerable length of time, the said notification was never brought on record. This court on 27.02.2017 had granted time to the learned State counsel to trace out the notification, if available and bring it on record. In spite of repeated opportunities, although a counter affidavit has been filed by the State, but the same does not answer the pertinent question raised by the learned senior counsel for the petitioner. Mr. Anil Kumar Sinha, learned senior counsel in support of his contention has referred to an order passed in Cr.M.P. No. 1545 of -4- 2009 in which the entire criminal proceeding was quashed on the ground that the same Public Analyst, who was also a Public Analyst in the present case, was never declared to be a Public Analyst by publishing the notification in the official gazette. The relevant paragraph referred to by the learned senior counsel for the petitioner is quoted hereinunder:
8. "From bare reading of the aforesaid provision, it appears that the notification with respect to the appointment of a person as Public Analyst needs to be notified in the official gazette. Since, it has not been controverted by the State counsel that Sidheshwar Sharma, the Public Analyst, during the relevant time was not notified as Public Analyst in the official gazette, it can be said that the analysis made by the said Public Analyst and declaring the seized Kailash chily sauce and Everest Tomato sauce as misbranded can not sustain and it had never been made by a Public Analyst appointed under the provision of the said Act."
8. It appears that the primary contention raised in that case was never controverted by the State counsel which has been noted in the said order. Although, it has been vehemently stated in the present case that the notification published in the official gazette is in existence, but in spite of repeated opportunities such notification has never been brought on record. The State has merely relied on the notification which was issued appointing Sri Sidheshwar Sharma as a Public Analyst, but the same having not been published in the official gazette in terms of Rule 8 of the Act, which strikes at the foundation of the case, such non-publication in the official gazette of the notification appointing Sri Sidheshwar Sharma as a Public Analyst will vitiate the entire criminal proceeding instituted against the petitioner.
9. Since the predominant thrust of the learned senior counsel for the petitioner has been accepted by this Court, the other points which have been raised in support of the petitioner is left upon for the present.
10. As a consequence to what has been discussed above, the continuation of the criminal proceeding as against the petitioner would be an abuse of the process of court and will lead to miscarriage of justice. Accordingly, having found sufficient materials in this application the entire criminal proceedings in connection with C-III 211 of 2005 including the order dated 18.11.2005 passed by the learned -5- S.D.J.M., Ranchi whereby and whereunder cognizance has been taken for the offence punishable under Section 16(a)(i) of the Prevention of Food Adulteration Act, 1954 is hereby quashed and set aside.
11. This application is allowed.
12. Let this order be communicated through FAX to the concerned court at the cost of the petitioner.
(Rongon Mukhopadhyay, J) R. Shekhar Cp 3