Shiv Kumar vs State Of Punjab on 12 September, 2008

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Punjab-Haryana High Court

Shiv Kumar vs State Of Punjab on 12 September, 2008

This common judgment will dispose of present Criminal Misc. as well as Criminal Misc.M-13657 of 2008 as both the cases have arisen out of same facts and relief claimed is also the same. Facts have, however, been extracted from the instant petition.

In this petition, the petitioner seeks quashing of FIR Criminal Misc. No. M-5675 of 2008.

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No.305 dated 6.11.2007, under Sections 420/269/270/271 IPC, Police Station City Samana, District Patiala.

As per allegations, on 6.11.2007, ASI Bhagwan Dass of Police Station City Samana and HC Viney Kumar, No.2208, HC Kuldip Singh, No.2728, CD Jaspal Singh No.1079, Constable Chamkaur Singh No.497, Constable Balkar Singh No. 2018 were travelling in Government vehicle bearing No.PB11-Y-8104 which was being driven by OC Shamsher Singh No.849 and were present at old Bus Stand for the purpose of March and Checking. Then, special informer informed that Shiv Kumar son of Shri Ram Lal, caste Aggarwal, resident of Garh Mohalla, Samana who was running a shop by the name of Ashwani Refreshment at Chakla Bazar, Samana supplied fake Paneer to the public at his shop. Because of eating fake Paneer, one can fall sick or dangerous disease can spread. His action disclosed offences punishable under Sections 420, 269, 270 and 271 IPC. Smt. Usha Dhingra, C.M.O, Patiala was requested for sending Food Inspector at the spot. ASI Bhagwan Dass sent ruqqa through Constable No.2018 to the Police Station for getting a case registered. On the basis of said facts, FIR No.305 dated 6.11.2007 under Sections 420/269/270/271 IPC was registered at Police Station, City Samana.

Criminal Misc. No. M-5675 of 2008.

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The petitioner filed the present petition for quashing the said FIR on the grounds that the allegations against the petitioner fall within the ambit of Food Adulteration Act, 1954. It is further pleaded that under Section 20 of the said Act, no prosecution can be launched without the written consent of the Central Government or the State Government or a person authorized by the Government in this behalf by general or special order by the Central Government or the State Government. It is further pleaded that the sample sent for analysis contained 25.32% milk fat of dry matter against minimum prescribed standard of 50%. The Paneer recovered from the accused at the most can be said to be adulterated. So, action can be taken only under the Prevention of Food Adulteration Act and FIR under Sections 420, 269, 270 and 271 IPC cannot be proceeded with. A prayer has been made for quashing the said FIR.

Regarding the same occurrence, complaint No.59 dated 3.5.2008, under Section 16 of Prevention of Food Adulteration Act, 1954 has been filed by the Food Inspector against the accused.

Another petition (Criminal Misc.No.M-13657 of 2008 ) has been filed for quashing the said complaint, Annexure P-1. The quashing of the said complaint has been sought on the following Criminal Misc. No. M-5675 of 2008.

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grounds:-

(i) That the petitioner applied for anticipatory bail, in this case, before the learned Sessions Judge, Patiala when the above-said FIR was registered against him and while allowing the same, the learned learned Additional Sessions Judge, Patiala, in its order dated 1.12.2007 has observed that milk fat was found to be less than the minimum prescribed standard and it was not a case of fake Paneer. The learned Court further observed that it is a case of Food Adulteration Act for which complaint lies at the behest of Food Inspector.

The offences under IPC are not made out.

(ii)That Hon'ble Karnatka High Court in State of Karnatka Versus Shetty Ice Cream Company, Kulai, Mangalore and others has observed that time is belatedly ripe to have re-look at the standards prescribed defining as adulteration with regard to the edibles,unless the product sold is a health hazard. Merely because it does not conform to the standards of best quality, the proprietors and manufacturers should not be subjected to unnecessary harassment of Criminal Misc. No. M-5675 of 2008.

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prosecution and punishment. There is a change in the mindset of the people to go for food items with less or no fat content. The fat content prescribed for Ice Cream under the Prevention of Food Adulteration Act is too high and may not be desirable diet in the modern times. The second quality Ice Cream with lesser fat content would be advisable medically than an Ice Cream with rich fat content. In the present case also fat content was found to be less in the Paneer and the ratio of the above mentioned case applies in this case also. In the complaint (P-1) in Para 12, it is mentioned that the milk fat contained in the Paneer was 25.32% against the minimum prescribed standard of 50.0% and the contents of the sample are therefore adulterated. It may be mentioned here that at best the fat content was less in the Paneer. In the modern times people prefer products with lesser fat content rather than products with more fat contents. Rather in the present case no raid whatsoever was conducted by the respondent. In para No.3 of the complaint (P-1), it is alleged that respondent raided the shop of the Criminal Misc. No. M-5675 of 2008.

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petitioner on the complaint of the police to local health authorities. Whereas version of the FIR is that the raid was conducted by the police and the CMO had been informed about the same. It shows that the present complaint (P-1) is false one and has been instituted only when the respondent felt that it was not going to succeed in the present case. In this view of the matter, complaint (P-1) and summoning order (P-3) deserve to be quashed.

(iii)That the Hon'ble Delhi High Court in State (Delhi Admn.) Versus Naresh Chand and others, has held that faulty procedure of taking sample, loss of fat, once loss of fat takes place due to faulty procedure of taking samples, the shop-keeper cannot be convicted. In the present case, what to talk of faulty procedure of taking sample, no sample whatsoever was taken at the time of seizure of alleged fake Paneer. For this reason also, the present complaint and summoning order deserve to be quashed.

(iv)That Hon'ble Patna High Court in Satish Mishra Versus State of Bihar and others, has held that Criminal Misc. No. M-5675 of 2008.

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Prevention of Food Adulteration Act, 1954, is special statute, is code in itself, by adding sections of IPC, police cannot make out its own case. It has its own set of authorities, which are authorized to conduct investigation, search, seizure and/or launch prosecution in respect thereof including enquiry into the matter. If police alleges that the provision of Prevention of Food Adulteration Act is violated then it was the authority of the Food Inspector alone and not the police officer to inspect or seize. So far as the offences alleged under IPC are concerned, none is made out on the facts of the case. The present prosecution as initiated on the basis of the FIR aforesaid and all subsequent acts thereunder are held to be wholly without jurisdiction and are quashed.

(v)That para No.3 of the complaint (P-1) says that 150 kg. Paneer was seized from the shop of the petitioner. Whereas the Act says that the Food Inspector has to purchase the product from the person concerned and there is no question of seizing of the whole Paneer. This shows that complaint (P-1) is false."

Criminal Misc. No. M-5675 of 2008.

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Both the petitions have been resisted by the State of Punjab.

I have heard both sides and have gone through the record of the case.

So far as the facts of the case are concerned, the same are not in dispute. A raid was conducted at the shop of accused/revisionist. The Food Inspector visited the shop and had taken into possession Paneer. Sample of the said Paneer was sent for analysis and the same contained 25.32% milk fat of dry matter against minimum prescribed standard of 50% and, on that count, the Paneer is stated to be adulterated.

So far as the fact that Paneer is fake one, there is no report to this effect on the file. The Patna High Court in the authority in case Satish Mishra Versus State of Bihar and others, 2007(1) FAC 393 has held that when there is a special statute under the Prevention of Food Adulteration Act, 1954 then by adding sections of IPC, FIR cannot be launched. Keeping in view the fact that Paneer was not found to be fake but was found to be not conforming to the prescribed standard, the proceedings under the Criminal Act cannot continue. So, FIR No.305 dated 6.11.2007 under Sections 420/269/270/271 IPC, Police Station, Criminal Misc. No. M-5675 of 2008.

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City Samana and further proceedings arising therefrom stand quashed.

So far as complaint No.59 dated 3.5.2008 is concerned, the case of the revisionist himself is that the prosecution can proceed under the Prevention of Food Adulteration Act. No case for quashing the complaint under the said Act is made out. The observations made by the learned Additional Sessions Judge while deciding the bail application are also to the effect that proceedings under the Food Adulteration Act can be initiated. So, in these circumstances, the petitioner who has himself taken a stand that proceedings under the Food Adulteration Act can only be initiated could not seek quashing of proceedings under the Act. Authority in case Karnatka Versus Shetty Ice Cream Company (supra) is not helpful at this stage of trial. In that ruling, it has been observed that time is ripe to have re-look at the standards keeping in view the requirement of people but since there is no change in the provisions of the Act and unless and until the said Act is amended, the said Act has to be implemented in letter and spirit.

Authority in case Naresh Chand (supra) is not helpful to the accused. Whether the sample was taken by the Food Inspector is a matter of evidence. Prima-facie, there is nothing on Criminal Misc. No. M-5675 of 2008.

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the file that the sample was not taken in accordance with the provisions of the Act.

So far as submission made by the counsel for the petitioner to the effect that sample has to be purchased from the petitioner and, on that count, proceedings cannot continue is concerned, the same is without any substance. The said matter can also be appreciated during the course of trial.

So, keeping in view the totality of circumstances, petition for quashing complaint No.59 dated 3.5.2008 stands declined.

It is, however, made clear that anything said above shall not be taken as an expression of opinion on the merits of the case, so far as complaint under the Prevention of Food Adulteration Act is concerned.

A copy of this judment be sent to the learned trial Court for strict compliance.


September 12th,2008.                   ( K. C. Puri )
Jaggi                                       Judge

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