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Vide this common order, Crl. Misc. Nos.M-11236, 14464 of 2010 and Crl. Misc. No.M-20889 of 2009 shall stand disposed of as the FIR and the question involved in all these cases is same. However, the facts are being derived from Crl. Misc. No.M-11236 of 2010.

The facts, in short, are that the petitioner-firms, herein, entered into an agreement with the government agency i.e. The Food Corporation of India (here-in-after referred to as "FCI") for the year 2004-05, whereby, the petitioner agreed to mill paddy as desired by the FCI. The Government of India issued uniform specifications regarding paddy, rice and coarse grains for the procurement for central pool during the Kharif Marketing Season 2004-05 vide letter dated 31.08.2004. The policy, which is popularly known as Custom Milling Policy 2004-05 regulates the terms and conditions. The said policy lays down the procedure of allotment of Rice mills. The scheme under this policy specifically highlights the role of Food Corporation of India in procurement and allotment of paddy to the Rice millers. A rice miller is under obligation to enter into an Agreement with the District Food & Supplies Controller/District Manager, who acts on behalf of the Government. During the year 2004-05, the paddy allotted by FCI was duly milled by the petitioner firm. The paddy duly milled by the petitioner- firm was accepted by the FCI and the FCI issued acceptance note on the receipt of the Rice regarding quality of rice and weight check memo regarding quantity of Rice and the same was stored in the godowns of the Punjab State Warehousing Corporation. Thereafter, the CBI conducted Joint Surprise Checks along with FCI officials at FCI Centres, Jalalabad, Goniana and Mansa in September 2005 and samples were taken randomly in the presence of independent witnesses as per the prescribed FCI procedure. These samples were got examined from the Director, Central Grain Analysis Laboratory, ICAR, Krishi Bhawan, New Delhi. The analyses report of CGAL in respect of the samples revealed that 9 samples out of 11 samples seized from Guniana centre were below PFA standards and not fit for human consumption. The remaining two samples were also not conforming to specifications and were found BRL. Out of 8 samples seized from Mansa centre, all of them were not conforming to specifications and were found BRL. Out of 26 samples seized from Jalalabad centre, 15 were below PFA standards and not fit for human consumption while the remaining 11 samples were found not conforming to specifications and BRL.

In reply to the fact that Sh. V.K. Srivastva was not charge sheeted, the CBI replied that the certificate issued by Sh. V.K. Srivastva does not speak clearly about the damaged percentage of the rice. The samples, in question, were obtained during a joint surprise check by a team of CBI and FCI Officials in the presence of Independent Witnesses taking all the necessary precautions and following the procedure of sampling as per the prescribed procedure of FCI. The samples of the rice were obtained by the CBI within a short period of two months and no change with regard to the percentage of damaged rice is possible within such a short period. Moreover, in between this period of two months the District Manager, FCI, Bathinda had also conducted checking of the rice and found the same to be beyond acceptable limit. While letting off the PSWC officials, learned counsel for the CBI submitted that as regard the role of PSWC officials, they had only stored the rice in their premises and the responsibility of ensuring the quality of the rice was of the FCI officials.

Learned counsel for the parties have been heard at length. There appears to be some merit in the argument raised by learned counsel for the petitioner that no offence under the Prevention of Food Adulteration Act, 1954 is made out as there is total non-compliance with the provisions of the said Act. There is violation of both Sections 20, as well as, Section 11 of the PFA Act, in as much as, the said sample was not taken as per the mandatory procedure prescribed under the same. As per the Sections 9, 10 and 11 of the PFA Act, the samples of rice were to be drawn by the Food Inspector, the same was, admittedly, not done in the present case. As per Section 11(c) of the Act, one sample was to be sent for analysis to the public analyst, the same was also, admittedly, not done. Further, as per Section 20 of the PFA Act, 1954, prosecution for such an offence cannot be instituted except by or with the written consent of the State or the Central Government. In the present case, no such authorization was taken by the CBI. It is also not denied that the said samples have not been examined by the Laboratory as provided by the Prevention of Food Adulteration Act, 1954. In accordance with Rule 3 of the Prevention of Food Adulteration Rules, 1955, the competent laboratory to carry out the functions entrusted to it by the Act for the State of Punjab and Chandigarh, is the Central Food Laboratory, Mysore.

Accordingly, the FIR was registered.

The CBI justified that the said exercise was undertaken by the CBI as per the instructions regarding inspection, sampling and analysis procedure to be followed in acceptance of rice stocks issued by Ministry of Food, Consumer Affairs and Public Distribution and FCI, Headquarters. The relevant instructions dated 28.09.2004 for the Kharif Marketing Season 2004-05 laid down as under :-

1. The rice stocks shall be accepted/purchased as per the laid down specifications of Government of India for Kharif Marketing Season, 2004-2005 circulated vide this Office letter of even No. dated 02.09.04.