Rajasthan High Court - Jodhpur
Champalal vs State Of Rajasthan on 21 January, 2022
Author: Rameshwar Vyas
Bench: Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S. B. Criminal Misc. (Pet.) No. 1677/2019
Goverdhan S/o Shri Ramchandra Kalla, aged about 53 years, B/c
Brahmin, R/o Dilip Nagar, Police Station Mandore, Jodhpur.
----Petitioner
Versus
State of Rajasthan
----Respondent
Connected With
S. B. Criminal Misc. (Pet.) No. 2375/2019
Champalal S/o Shri Badrinarayan Maheshwari, aged about 48
years, B/c Maheshwari, R/o Paota C Road, Near Income Tax
Office, Jodhpur.
----Petitioner
Versus
State of Rajasthan
----Respondent
For Petitioner(s) : Mr. Hastimal Saraswat
For Respondent(s) : Mr. S.K. Bhati, Public Prosecutor
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Order January 21, 2022 Both the aforesaid criminal misc. petitions shall stand decided by this common order as they arise out of the same incident.
These criminal misc. petitions under Section 482 Cr.P.C. have been filed by the petitioners against the order dated 29.01.2019 passed by Additional Sessions Judge No. 2, Udaipur in Criminal Revision Petition No. 01/2018 (C.I.S. No. 33/2018), whereby the revision petition filed by the petitioners was dismissed and the (Downloaded on 21/01/2022 at 08:59:38 PM) (2 of 5) [CRLMP-1677/2019] Order dated 03.10.2017 passed by Additional Chief Judicial Magistrate No. 3, Udaipur in Criminal Regular Case No. 1097/2017 (State of Rajasthan Vs. Champalal & Anr.) framing charges under Section 420 I.P.C., Section 7/16 of Prevention of Food Adulteration Act, 1954 and Section 64 of Copyright Act, 1957 against the petitioners, was affirmed.
Heard learned counsel for the petitioners as well as learned Public Prosecutor and perused the material available on record.
Learned counsel for the petitioners submitted that the trial court committed grave error in framing charges under Sections 420 I.P.C., Section 7/16 of Prevention of Food Adulteration Act, 1954 (afterwards referred to as "the PFA Act") and Section 64 of Copyright Act, 1957 (afterwards referred to as "the Act of 1957") against the petitioners. He further submitted that no fraud was committed with anybody, therefore, offence under Section 420 I.P.C. was not made out. He further submitted that the police was not entitled to collect the samples under the provisions of the PFA Act. The requirement of provisions of the PFA Act was not fulfilled, hence, the Court could not have taken cognizance under Section 7/16 of the PFA Act. He further submitted that since the prosecution failed to establish that any violation of the provisions of the Act of 1957 was committed by the petitioners, therefore, no offence under the Act of 1957 was made out against them. He further submitted that the trial court committed error in framing the charges, which was affirmed by the revisional court in an illegal manner and without going into relevant provisions of law. Therefore, it is prayed that the orders impugned passed by both the courts below may be quashed and set aside and the petitioners may be acquitted of the charges levelled against them. (Downloaded on 21/01/2022 at 08:59:38 PM)
(3 of 5) [CRLMP-1677/2019] Learned counsel for the petitioners has relied upon the judgments of a coordinate Bench of this Court in the cases of Mohan Das & Anr. Vs. State of Rajasthan (S.B. Criminal Misc. Petition No. 2842/2012) decided on 16.12.2020 & Anand Vs. State of Rajasthan (S.B. Criminal Misc. Petition No. 342/2009) decided on 27.04.2012 and the Hon'ble Gujarat High Court in the case of Shambhu Dayal Agrawal and Ors. Vs. State of Gujarat reported in (2003) 2 GLR 1620.
On the other hand, learned Public Prosecutor while supporting the orders impugned passed by both the courts below, submitted that as per prosecution story, on a secret information, the police searched a car and found one Pawan Jain with 8 tinnes of alleged adulterated pure ghee. During investigation, the police found that Pawan Jain purchased ghee from Champalal Soni and Raju. During search of their rented premises, some material was found for making artificial pure ghee. As per prosecution case, Goverdhan was working in the factory for making adulterated ghee. After investigation, the police charge-sheeted all the five accused persons under Sections 420 I.P.C., Section 7/16 of the Prevention of Food Adulteration Act, 1954, Section 80.16A of Trade and Merchandise Marks Act, 1958 and Section 64 of the Copyright Act, 1957.
Having regard to the rival contentions of the learned counsel for the parties and after perusal of the record, this Court is of the opinion that in the present case, the petitioners have not been properly charge-sheeted under the relevant provisions of law. The trial court has also overlooked applicable provisions while framing the charges. For the purpose of framing charge under Section 420 of I.P.C., dishonest inducement to a person is necessary. (Downloaded on 21/01/2022 at 08:59:38 PM)
(4 of 5) [CRLMP-1677/2019] However, in the present case, there is no evidence on record that the petitioners have induced anybody to deliver any property to any person, hence, offence under Section 420 of I.P.C. is not made out.
Regarding framing of charge under Section 7/16 of the PFA Act, the police has not been empowered to file charge-sheet under the PFA Act; only a competent Food Inspector can file the complaint under this Act. There is specific procedure for taking samples of adulterated food, which has not been followed in the present case. In the PFA Act, the accused has also been given a right to obtain second opinion from the Central Food Laboratory. In the present case, no procedure as laid down in the PFA Act and Rules has been followed by the police. As per Section 20 of the PFA Act, prosecution for an offence under this Act not being an offence under Section 14A shall be instituted except by or with the written consent of the Central Government or the State Government or a person authorized in this behalf. In the present case, the prosecution has failed to show that concerned S.H.O. was having authority to proceed against the petitioners under the PFA Act.
The present case does not relate to infringement of anybody's copyright, on the other hand, from the facts of the case, it reveals that it is a case, where false trade description has been used on goods, therefore, the prosecution should be under the provisions of the Trade and Merchandise Marks Act, 1958. Section 78 ibid deals with penalties for applying false trade marks and descriptions etc. Both the courts below have erred in not applying correct provisions while framing the charges against the petitioners.
(Downloaded on 21/01/2022 at 08:59:38 PM)
(5 of 5) [CRLMP-1677/2019] In the result, both the criminal misc. petitions are allowed. The orders impugned dated 29.01.2019 and 03.10.2017 passed by the courts below are set aside and the matter is remanded back to the trial court with a direction to pass a fresh order regarding framing of charges against the petitioners under the relevant provisions of the Trade & Merchandise Marks Act, 1958 and Indian Penal Code offence relating to property marks as mentioned in Chapter XVIII of the Indian Penal Code, in accordance with law.
The record of the courts below be returned back forthwith.
(RAMESHWAR VYAS),J Inder/-
(Downloaded on 21/01/2022 at 08:59:38 PM) Powered by TCPDF (www.tcpdf.org)