Rajasthan High Court - Jodhpur
Niranjan G. Khatri @ Ors vs State on 18 July, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
S.B.Cr.Misc.Petition No.1517/2012
(Shri Niranjan G. Khatri & Ors. Vs. State of Rajasthan)
1/8
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B. CRIMINAL MISC. PETITION NO.1517/2012 Shri Niranjan G. Khatri & Ors.
Vs.
State of Rajasthan
Date of judgment : 18.7.2012
HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. Sheetal Kumbhat, for the petitioners. Mr. A.R.Nikub, P.P. <><><> REPORTABLE The instant misc. petition has been filed against the order dated 6.4.2012 passed by the learned Sessions Judge, Pali in Cr. Revision No.11/2011, whereby the order dated 22.10.2011 passed by the learned ACJM, Sojat in Cr. Case No.226/2001, has been affirmed and seeking quashing of the proceedings in Cr.Case No.226/2001 pending against the petitioners for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as 'the Act').
Succinctly stated the facts of the case are that a complaint was filed against the petitioners for the offence under Section 7/16 of the Act with the allegation that the Food Inspector - S.S.Rajpurohit collected a sample of AGMARK chilly powder Ramdeo Brand from the petitioner Rijhumal on 25.11.2000. Thereafter one of the sample of chilly powder S.B.Cr.Misc.Petition No.1517/2012 (Shri Niranjan G. Khatri & Ors. Vs. State of Rajasthan) 2/8 was sent to the public analyst, from where the report was received that the sample was adulterated. After making the necessary enquiries regarding the retailer, the dealer and the stockist of the chilly powder as well as the manufacturor, a complaint was laid against the petitioners in the Court of the learned ACJM, Sojat for the offence under Section 7/16 of the Act. As per the batch and date mentioned on the packet of the chilly powder, the expiry period of the chilly powder was mentioned as best before 8 months from date of manufacture. The Public Analyst submitted a report regarding the chilly powder being adulterated on 4.1.2001. Thereafter, a complaint was filed in the Court after giving notice to the accused under Section 13(2) of the Act in the Court of the learned ACJM, Sojat on 25.9.2001. An application under Section 13(2) of the Act was filed on behalf of the accused and accordingly, the learned ACJM, Sojat by order dated 26.11.2002 directed that the second sample of the chilly powder be sent to the Central Food Laboratory for analysis. Ultimately, the sample was transmitted to the CFL on 4.11.2003. The CFL sent a communication to the Court on 30.5.2008 i.e. approximately 7 years after the sample was drawn intimating the court to forward the memorandum and specimen impression of seal to it for comparison with the seals affixed on the samples. The memorandum and the specimen seal were forwarded to CFL on 30.7.2008. Thereafter, again another set of the said documents was sent to the CFL on 26.8.2011 and ultimately, the CFL upon analysis of the second sample of the chilly powder by its report dated 3.9.2011 communicated that the sample of the chilly powder was adulterated, inasmuch as, the microscopic examination of S.B.Cr.Misc.Petition No.1517/2012 (Shri Niranjan G. Khatri & Ors. Vs. State of Rajasthan) 3/8 the chilly powder revealed that rice structure was present in the chilly powder. The petitioners submitted an application in the trial Court under Section 13(2) of the Act claiming that the mandatory provisions of Section 13(2) of the Act had not been followed and therefore, the accused should be discharged. The application was rejected by the trial Court by order dated 22.10.2011 and the revision preferred by the petitioners was also rejected by the learned Sessions Judge, Pali by her order dated 6.4.2012. Hence, the instant misc. petition has been preferred by the petitioners seeking quashing of the orders impugned as well as all the proceedings pending against the petitioners in the trial Court.
Shri Sheetal Kumbhat learned counsel appearing for the petitioners submits that in this case, the chilly powder has been found to be conforming to all the standards laid down in the appendix A.05.05.01, which prescribes the standards for chilly powder. He submits that the only discrepancy, which has been found by the CFL is regarding the presence of rice structures and such conclusion is based on a microscopic examination of the sample. Learned counsel submits that no such requirement is mentioned in the appendix that the chilly powder should be found not having rice structure upon microscopic examination. Learned counsel submits that the report disclosing that the sample was not conforming to the standards was given on the basis of a test, which was not even prescribed in the appendix. As such, it could not be used against the accused to prosecute them. He, therefore, submits that all the proceedings against the accused deserve to be quashed. Learned counsel submits that since the sample of the chilly powder passes all the requisite S.B.Cr.Misc.Petition No.1517/2012 (Shri Niranjan G. Khatri & Ors. Vs. State of Rajasthan) 4/8 tests and meets with the standards laid down in the Appendix-A.05.05.01, the prosecution of the petitioners deserves to be quashed. Learned counsel has placed reliance on a decision of this Court in the case of Shri Mahesh & Anr. Vs. The State of Rajasthan rendered in S.B. Cr. Misc.Petition No.427/91 decided on 6.2.1992 and the decision of the Madhya Pradesh High Court in the case of Dhanraj Jaiswal Vs. State of M.P. Reported in 2006 FAJ 281. He further places reliance on the decision of this Court in the case of Municipal Council, Kota Vs. Harak Chand reported in 1989(1) RLR 831 and contends that since there is no column for microscopic examination in the standards prescribed for the chilly powder in the Appendix-A.05.05.01 of the Act, it cannot be held that the chilly powder, sample whereof has been taken in this case, offends the standards prescribed in the Appendix. He, therefore, urges that the proceedings against the petitioners in this case amount to an abuse of process of law and are liable to be quashed.
Learned Public Prosecutor on the other hand supported the impugned orders.
For appreciating the arguments advanced on behalf of the parties, the report of Analyst submitted by the CFL needs to be considered. The CFL upon examination of the chilly powder gave following conclusions:
"Analysis Report:
(i) Sample description :- Sample received in sealed polethene company Pack (200 gms.)
(ii) Physical appearance:-Off red chilly powder with oily nature.
S.B.Cr.Misc.Petition No.1517/2012 (Shri Niranjan G. Khatri & Ors. Vs. State of Rajasthan) 5/8
(iii) Label :- Ramdeo Brand Chilly Powder-Ahmedabad.
Companies as per P.F.A. Rules 1955.
Note : - Memorandum received on 11/08/08.
Sr. Quality Name of Results Prescribed
Characteristic method of standards as
No.
s test used per (a) Item
A-of
Appendix B.
(b) As per
label
declaration
for
proprietary
foods.
(c) As per
provisions of
the Act and
Rules, for
both above.
Not more than
1 Moisture D.G.H.S. 5.95%
11.0% by wt
Total ash on Not more than
2 -do- 5.52%
dry basis 8.0% by wt
Ash insoluble
Not more than
3 in dil.HCI dry -do- 0.61%
1.3% by wt
basis
Not more than
4 Crude fibre -do- 22.80%
30.0% by wt
Non Volatile
Not less than
5 Ether Extract -do- 17.95%
12.0% by wt
on dry basis
Absent in 25
6 Salmonella -do- Absent
gm.
No Free from
7 Test of colour -do- extraneous extraneous
colour colour.
Chilly
structure + Only chilly
Microscopic
8 D.Pearson Rice structure shall
examination
structure be present.
detected
Opinion- I am of the opinion that the above sample contains Rice Structure & hence does not conform to the standards of Chillies & Capsicum (Red Chilly Powder as per P.F.A. Rules 1955."
S.B.Cr.Misc.Petition No.1517/2012 (Shri Niranjan G. Khatri & Ors. Vs. State of Rajasthan) 6/8 The Item No.A.05.05.01 of the Appendix-B of the Act, which prescribes the standards for chilly powder, reads as under:
"A.05.05.01-CHILLIES AND CAPSICUM (Lal Mirchi) Power means the powder obtained by grinding clean ripe fruits or pods of Capsicum annum L and Capsicum frutescens L. It shall be free from mould, living and dead insects, insect fragments, rodent contamination. The powder shall be dry, free from dirt, extraneous colouring matter, flavouring matter, mineral oil and other harmful substances. The chilli power may contain any edible vegetable oil to a maximum limit of 2.0 per cent by weight under a label declaration for the amount and nature of oil used.
It shall conform to the following standards:-
Not more than 11.0 per cent Moisture
(i) by weight Not more than 8.0 per cent by Total ash on dry basis
(ii) weight Ash insoluble in dilute Not more than 1.3 per cent by
(iii) HCL on dry basis weight Not more than 30.0 per cent Crude fibra
(iv) by weight Non-volatile ether Not less than 12.0 per cent by
(v) extract on dry basis weight
(vi) Salmonella Absent in 25 g"
A bare reading of the Item No.A.05.05.01 of the Appendix-B of the Act reveals that the requisite tests for the chilly powder do not prescribe any test like a microscopic examination. The standards also do not bar the presence of Rice Structure in the chilly powder. What is not permitted is mentioned in the opening paragraph in the table. Rice structures cannot be said to be dirt, extraneous colouring matter, flavouring matter or a harmful substance.
S.B.Cr.Misc.Petition No.1517/2012 (Shri Niranjan G. Khatri & Ors. Vs. State of Rajasthan) 7/8 This Court had the occasion to consider the effect of a report, wherein the Public Analyst on the basis of microscopic examination opined that the sample of coriander powder did not conform to the standards, this Court held that the standard of quality as prescribed in the Appendix does not provide for the microscopic test to be conducted upon the food article.
In Harakchand's case, the sample of turmeric powder conformed with all the other standards of purity but on microscopic examination, the Public Analyst opined that the sample was adulterated with wheat starch. This Court held that as there was no column for microscopic examination in the Appendix of the Prevention of Food Adulteration Rules, the opinion/remark made by the Public Analyst about the conclusion from microscopic examination could not be taken into account for holding the turmeric powder to be adulterated.
Similar view has been taken by the High Court of Madhya Pradesh in the case of Dhanraj Jaiswal. The situation in the case at hand is similar. As per the report of the Director, CFL, the chilly powder meets the standards No.(i) to (vii) prescribed in the item No.A.05.05.01 of Appendix-B of the Act. Apart from these standards, the sample is not found to be infringing any of the conditions laid down in the opening para of the Appendix No.A.05.05.01. Therefore, the conclusion arrived at by the Public Analyst that the sample of the chilly powder was adulterated since on microscopic examination, rice structure was detected, cannot be held to be a sound opinion for holding that the sample of chilly powder collected from the accused was in contravention with item No. S.B.Cr.Misc.Petition No.1517/2012 (Shri Niranjan G. Khatri & Ors. Vs. State of Rajasthan) 8/8 A.05.05.01 of Appendix-B of the Act laying down the standards of purity.
In view of the above discussion, this Court is of the opinion that the prosecution of the petitioners in this case cannot be said to be in accordance with law and amounts to an abuse of process of Court, and is, therefore, liable to be quashed.
Resultantly, the misc. petition is allowed and it is directed that further proceedings in Cr. Case No.226/2001 going on against the petitioners in the Court of learned ACJM, Sojat are quashed.
(SANDEEP MEHTA), J.
/tarun/