PFA – HC Allahabad, Lucknow Bench – Appeal on Misbranded Suji

Shri Milan Anandan & Ors. vs State Of U.P. Thur. Its Principal … on 14 July, 2017
Bench: Anil Kumar Srivastava-Ii

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
Criminal Misc. Case No. 3351 of 2010 (U/s 482 Cr.P.C.)
 

 
1. Shri Milan Anandan son of
 
Shri A.K.Anandan,resident of House
 
No. 384 Shalimar, Apartment, 
 
Prag Narain Road, Lucknow.
 
P.S. Kotwali Hazratganj, Lucknow.
 

 
2. Shri Deepak Pandey son
 
of Shri Murlidhar Pandey, 
 
Store Incharge, I.T.C. Chaupal Sagar
 
 Haripur, P.S. Kotwali Nagar, 
 
District Gonda.
 

 
3. I.T.C. Limited, an existing Company
 
 as defined under the Companies Act, 
 
1956 having its AGRI Business Division 
 
at 31 Sarojini Devi Road, Secunderabad 
 
500 003 through its Constituted Attorney.
 
                                                    ........Petitioners 
 
                            Vs.
 
1. State of U.P. through its Principal Secretary,
 
 Home,Uttar Pradesh Government, Lucknow.
 

 
2. Food Inspector, District Gonda.
 
                                                ...Opposite parties 
 
                                 XXX
 
Hon'ble Anil Kumar Srivastava-II,J.

1. Heard Shri Navin Sinha, learned Senior Advocate appearing for the petitioners, Shri Shiv Nath Tilhari, learned Additional Government Advocate

2. Instant petition under section 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings of Complaint Case No. 946 of 2009, State Vs. M/s Daily Food Products and others under sections 7 and 16 of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the ”Act’) pending in the court of Additional Chief Judicial Magistrate-1st, Gonda.

3. According to the prosecution, on 4.2.2009 at about 2.00 p.m. Food Inspector, Gonda conducted a raid at I.T.C. Chaupal Sagar Store and inspected the said store in presence of the Store Incharge, Deepak Pandey, who informed that Shri A.K. Anandan is the nominee of I.T.C. Chaupal Sagar, Haripur.

4. During inspection, on suspicion, three packets of Suji which was of Daily Brand Batch No.B1 PKD Jan 2009, was purchased for an amount of Rs. 36/-. Notice Form No. VI. in four copies were received by the Store Incharge. Receipt no. UP06-1/17828 dated 4.2.2009 was received in lieu of payment. Three packets of Suji were sealed. Signatures of seller were obtained. One sample was sent to the Public Analyst, Uttar Pradesh Lucknow by courier alongwith copy of seal, wherein a report was received that according to Rule 42(ZZZ) (17) of the Prevention of Foods Adulteration Rules, 1955 (hereinafter referred to as the ”Rules’) on the label of the sample green symbol for vegetarian food is not declared. Remaining two sealed packets were deposited in the office of Health Officer, Gonda in accordance with Rules.

5. On receipt of report of Public Analyst, the aforesaid complaint case was filed wherein learned Magistrate has taken cognizance and issued summons to the accused.

6. Learned counsel for the petitioners submits that the petitioners are only vendors, who purchased and sold the items in the state as have been received by them. It is further submitted that warranty as required under section 14 of the Act was given. Item was sold after receipt of the warranty. It is further submitted that name, address and particulars of the person from whom the articles were purchased, was informed to the Food Inspector.

7. Learned counsel further submits that the article in question was Suji wherein the only charge against the petitioners is that the green label was not shown, which indicates that it is a vegetable food, which is required under Rule 42 (ZZZ) (17) of the Rules. It is submitted that under section 19 of the Act, the petitioners could not be held liable for commission of any offence because the warranty in the prescribed Form was obtained and the article of food in their possession, was properly stored and the same was being sealed in the same state as was purchased by them.

8. Learned counsel for the petitioners has placed reliance upon a judgment of Single Judge of Patna High Court rendered in Criminal Misc. No. 43942 of 2007, Md. Izhar Vs. State of Bihar, decided on 15.1.2009, wherein it was held that “section 2 (ix) (k) relates to the manufacturer of his statutory duties to affix the label and not on the petitioner”.

9. Learned counsel further placed reliance upon Anil Kumar Vs. State of Punjab and another, 2010 (1) FAC 378, wherein reliance has been placed upon a judgment of Hon’ble the Apex Court in P. Unnikrishnan Vs. Food Inspector, Palghat Municipality, Kerala State, 1996 (2) Prevention of Food Adulteration Cases 25, wherein it was held that:-

“If the article of food is purchased from the manufacturer and was sold to the Food Inspector in the same form in the same condition, the petitioner cannot be held liable for the violation of any Act or Rules. It was further held that the petitioner is neither the manufacturer and to affix the label is the duty of the manufacturer and in the absence of allegation that the label was tampered with, no offence can be made out against the petitioner.

Reliance is also placed upon P. Unnikrishnan (supra) Vs. Food Inspector, Palghat Municipality, Palgaht, Keral State, AIR 1995 S.C. 1983, wherein it was held in para 4 that:-

“4. In the instant case there is no material to show that the firm namely M/s Tajus Productions had any licence. However, taking into consideration Section 19(2) along with Rule 12A what is necessary for the accused to show is that he has purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. In the instant case admittedly there was a bill Ex. D1 which contained the warranty further it is also the admitted case that the tin purchased from the alleged manufacturer was sold to PW3, the Food Inspector, Palghat in the same form and in the same condition. Therefore, the requirements of Section 19(2) read with Rule 12A are satisfied in the instant case for the purpose of the defence taken by the accused.”

10. It is further submitted that the warranty as required under Rule 12A of the Rules was given by the manufacturer to the petitioners which was shown to the Food Inspector.

11. Learned AGA submits that section 7 (ii) of the Act provides that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any misbranded food. It is further submitted that the sample was not containing the green mark as was required under Rule 42 (ZZZ) (17) of the Rules. It is further submitted that section 19 (2) of the Act is a provision, which provides the defences which may or may not be taken by the accused in a prosecution. It is further submitted that section 19 (2) (3) of the Act is such which are mixed question of facts wherein burden lies upon the vendor to prove the necessary conditions as required under the provisions. Hence, this Court in a petition under section 482 Cr.P.C. cannot deal with the question of facts. Accordingly, petition is liable to be dismissed. It is further submitted that the warranty was not in accordance with provisions of Section 14 of the Act and Rule 12A of the Rules.

Section 7 (ii) of the Act reads as under:-

“No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-

(ii) any misbranded food.”

Violation of this provision is punishable under section 16 of the Act. Admittedly, a sample of Suji was taken from the store of the petitioners.

Sections 14 and 14A are reproduced here below:-

“14. Manufacturers, distributors and dealers to give warranty.- No manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor;

14A. Vendor to disclose the name, etc., of the person from whom the article of food was purchased.- Every vendor of an article of food shall, if so required, disclose to the food inspector the name, address and other particulars of the person from whom he purchased the article of food.”

Section 19 (2) and (3) reads as under:-

“(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves.-

(a) that he purchased the article of food-

(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,

(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and

(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.

(3) Any person by whom a warranty as is referred to [in section 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence.”

Rule 42(ZZZ) (17) of the Rules reads as under:-

“42 (ZZZ) (17) Every package of Vegetarian Food shall bear the following symbol in green colour on the principal display panel just close in proximity to name or brand name of the Food, namely.-“

Section 2 (ix) (k) reads as under:-

(ix) “misbranded”- an article of food shall be deemed to be misbranded-

(k) if it is not labeled in accordance with the requirements of this Act or rules made thereunder;”

Rule 32 of the Rules provides that every prepackaged food should carry a label.

12. Inspection was conducted by the Food Inspector. In the inspection note, batch number is mentioned as B/No.B-1. According to the report of Public Analyst, in Form III only deficiency was to the extent that green vegetarian symbol was not printed. It was opined that according to PFA Rule 42 (ZZZ) (17) on the label of the sample green symbol for vegetarian food is not declared.

13. Section 14 of the Act provides that no manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor.

14. Learned AGA has submitted that burden lies upon the petitioners to prove the necessary ingredients for taking the benefit of section 19 of the Act. It is further submitted that it is mixed question of facts which could not be looked into by this Court in proceedings under section 482 Cr.P.C.

15. Scope of section 482 Cr.P.C. is well defined by Hon’ble the Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335.

16. In Sonu Gupta versus Deepak Gupta (2015) Vol.3 SCC 424, it was held by the Hon’ble Apex Court that as under:-

“At the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is required only at a later stage and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. Even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.” (Para 9).

17. In M/s Pepsi Food Ltd and another Vs. Special Judicial Magistrate and others (1998) 5 SCC 749, Hon’ble the Apex court in para 22 has held as under:

“22. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

18. In Mehmood Ul Rehman Vs. Khazir Mohammad Tunda and others (2015) 12 SCC 420, Hon’ble Apex Court has held in Paras 22 and 23 as under:-

“22. The steps taken by the magistrate under section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at the stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one’s dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.

23. Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Sections 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 CrPC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. The question is not about veracity of the allegations, but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate.”

19. Section 19 (2) of the Act is an exception to the Penal provisions wherein it was provided that if the vendor proves that he purchased the article of food from any manufacturer, distributor or dealer, with a written warranty in the prescribed form. Such protection is given to the vendor in order to protect him from unnecessary facing the criminal trial. Warranty was shown to the Food Inspector.

Section 2 (ix) of the Act which describes misbranding, could be applicable only if the complaint does not make out any allegations to bring the absence of the LOGO with any of the clause of section 2(ix) (a) to (j).

In so far as clause (a) is concerned, it relates to the manufacturer of his statutory duties to affix the label and not on the petitioners. Petitioners are not the manufacturer of the item, hence, they would be entitled for the benefit of section 19 (2) of the Act.

20. Learned AGA has placed reliance upon Murlidhar Shyamlal Vs. State of Assam AIR 1996 AIR (SC) 1429, wherein Hon’ble the Apex Court has held that in view of the above warranty as envisaged under Form VI-A, there must be special mention therein by the dealer or distributor or manufacturer, that the article of food sold was in the same nature and quality of the article of food, as the case may be.

In the present case also the warranty as mentioned in the tax invoice was strictly in compliance with the Form VI-A.

21. Learned AGA has also placed reliance upon State of Punjab Vs. Devinder Kumar, 1983 (2) SCC 384 wherein it was held in para 8 as under:-

“8. Before concluding we should observe that the High Court committed a serious error in these cases in quashing the criminal proceedings in different Magistrates’ Courts at a premature stage in exercise of its extraordinary jurisdiction under Section 482, Criminal Procedure Code. These are not cases where it can be said that there is no legal evidence at all in support of the prosecution. The prosecution has still to lead its evidence. It is neither expedient nor possible to arrive at a conclusion at this stage on the guilt or innocence of the accused on the material before the court. While there is no doubt that the onus of proving the case is on the prosecution, it is equally clear that the prosecution should have sufficient opportunity to adduce all available evidence.”

In the present case, there is a legal lacuna on the part of the prosecution. There was a valid warranty in compliance of the provisions of section 12A of the Act, which was strictly in accordance with Form VI-A. Therefore, it cannot be said that the High Court cannot quash the proceedings wherein there is a clear case of misuse of process of law as has been held in Bhajanlal ”s case (Supra).

22. Learned AGA has further placed reliance upon V.N. Kamdar and another Vs. Municipal Corporation Delhi, AIR 1973 SC 2246, wherein Hon’ble the Apex Court has held in para 7 that:-

section 19 (3) of the Act only gives liberty to the person who gave the warranty to appear and give evidence and that by volunteering to appear and give evidence, he does not become an accused. The opportunity to appear and give evidence is to enable the person who gave the warranty to show that the vendor has not properly stored the article while in his possession or that he did not sell the article in the same state as he purchased it and thus to avoid a prosecution against him on the basis of a false warranty.”

Such is not the case in the present. The only fault found was non compliance of Rule 42 (ZZZ) (17) of the Rules, wherein green LOGO was not affixed. It was not a case that the vendor has not stored the article in the condition as was received by him or he did not sell the same in the condition he received.

23. Reliance has also been placed by the learned AGA upon M/s Bhagwan Das Jagdish Chander Vs. Delhi Administration and another, AIR 1975 SC 1309. The said case is not applicable to the facts of the present case because the manufacturer was also impleaded as an accused in this case.

24. Learned counsel for the petitioners submits that the learned Magistrate has not applied his mind before taking cognizance. It is further submitted that tax invoice was attached with the complaint, wherein warranty was also mentioned. In view of the provisions of section 19 (2) and section 14 of the Act, learned Magistrate should have applied his mind before taking cognizance. Learned Magistrate should have applied his judicial mind before taking cognizance in the matter.

25. Per contra, learned AGA submits that learned Magistrate is not required to pass a detailed order at the time of taking the cognizance.

26. In Bhajan Lal’s case (supra), Hon’ble the Apex Court has specifically held that the extraordinary jurisdiction under section 482 Cr.P.C. can be invoked where there is a case of misuse of process of law. Application of mind by the Magistrate should be reflected from the cognizance order.

27. In a recent judgment delivered by Hon’ble the Apex Court in Abhijit Pawar vs. Hemant Madhukar Nimbalakar & another, (2017) 3 SCC, it has been held that:-

“The admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an inquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure(Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words that ”and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction’. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct inquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected.

Referring the case law in Vijay Dhanuka vs. Najima Mamtaj (2014) 14 SCC 638; it was held that :-

“11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process “in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.

12. The words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23.6.2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:

“False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.”

The use of the expression “shall” prima facie makes the inquiry or the investigation, as the case may be , by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression”shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.”

28. In Mehmood UI Rehman’s case (Supra), it was held in paras 20 and 22 as under :

“20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter. (emphasis supplied)

22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure or mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one’s dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.” Emphasis added. “

Hon’ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under:

“14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word “inquiry ” has been defined under Section 2(g) of the Code, the same reads as follows:

“2. (g) ”inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or court,”

It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.”

In Sonu Gupta’s case (supra) it was held by the Hon’ble Apex Court that :-

“At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.” (Para 8)

29. Summoning of an accused in a criminal matter is a serious matter where it is expected from the learned Magistrate to exercise his judicial conscience and mind at the time of passing an order for summoning of the accused. It could not be passed mechanically. Although it is true that specific reasons for summoning of the accused are not required to be mentioned but at the same time order must show that the learned Magistrate has applied his judicial mind in summoning the accused. It is more important in the cases where the accused are residents of beyond the jurisdiction of the learned Magistrate as has been held in Abhijit Pawar’case (Supra).

Stereophonic cognizance order should not be passed by the Magistrates. Although it is true that the Magistrates are not required to pass detailed reasoned orders at the time of taking cognizance, but at the same time, orders must reflect the application of judicial mind. Application of judicial mind can only be inferred from the attending circumstances of the case.

30. In the present case, there is a warranty as required under section 14 of the Act. Such warranty was also made part of the complaint at the time when the learned Magistrate was taking cognizance. It was incumbent upon him to have gone through the material collected at the stage of investigation. Summoning of an accused in a criminal case is a serious matter, which could be of serious consequences. Such orders cannot be passed mechanically.

31. Considering all the facts and circumstances of the case as discussed above, I am of the view that the petition deserves to be allowed and is accordingly allowed. Proceedings of Complaint Case No. 946 of 2009, State Vs. M/s Daily food Products and others under sections 7 and 16 of the Act pending in the court of Additional Chief Judicial Magistrate, 1st, Gonda are quashed so far as it relates to the petitioners.

Order Date: 14.7.2017

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