PFA – Rajasthan HC – CMP -Madan Lal Paliwal Vs State – Sauce sample misbranding case – Nov 8-2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 1240 / 2014

Madan Lal Paliwal S/o Shri Deepchand Paliwal, aged about 45 years, R/o Upar Ki Odan, Tehsil Nathdwara, District Rajsamand (Rajasthan).—-Petitioner

Versus

1. State of Rajasthan through Public Prosecutor.

2. Ratan Singh Devra, Food Inspector, Office of Chief Medical & Health Officer, Pali (Raj.)

—-Respondents For Petitioner(s) : Mr. Farzand Ali For Respondent(s) :

Mr. M.S. Panwar, PP

 

HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 08/11/2017

1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. against the order dated 21.03.2014 passed by learned Additional Chief Judicial Magistrate, Sumerpur District Pali in Criminal Regular Case No.782/2013 and for quashing of the entire criminal proceeding qua the petitioner for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954.

2. The list of dates pertaining to this case, are as under:

     S.No                Date                         Particulars
      1.            10.02.2009                    Sample was taken
      2.            17.03.2009                   Public Analyst Report
      3.            16.09.2010        Complaint was filed (after 17 months reply)
      4.                10.2008            Manufacturing date of the Article
      5.                10.2009                Expiry date of the Article
                                (2 of 7)
                                                       [CRLMP-1240/2014]

3. Learned counsel for the petitioner states that the present case is squarely covered by the decision rendered by this Court in S.B. Criminal Misc. Petition No.1376/2017; Pradeep Singhvi Vs. State of Rajasthan, decided on 12.07.2017.

4. This Court on 12.07.2017 has passed the following order in Pradeep Singhvi (supra):-

“1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. against the order dated 22.02.2017 passed by learned Sessions Judge, Jodhpur in criminal revision No.52/2016 by which he while dismissing the revision petition filed by the petitioner has upheld the order dated 02.07.2016 passed by learned Chief Judicial Magistrate, Jodhpur in criminal case No.56/2014(646/2011) by which he framed charges against the petitioner for the offence under Section 7, (I)/16 of the Prevention of Food Adulteration Act, and to quash and set aside the same.

2. The brief facts as noticed by this Court are that the sample was drawn by the respondent on 23.03.2011 and was sent for analysis on 24.03.2011. The report of the analysis was received on 17.05.2011 and upon such report, a complaint was filed on 21.07.2011. The report from the said laboratory disclosed that the standards laid down in the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as Act of 1954) and Rules were made and thus, pre-charge evidence of the Food Inspector were recorded and the charges were framed against the petitioner on 19.09.2015. The petitioner challenged the framing of charges by filing a revision petition whereby the matter was remanded back for fresh consideration. The charges were against framed on 02.07.2017 on fresh consideration and revision was filed against the same but the order was upheld vide order dated 22.02.2017.

3. Learned counsel for the petitioner has submitted that the rights granted to the petitioner under Section 13(2) of the Act of 1954 have been infringed and therefore, since his valuable rights have been infringed, the trial cannot go on. The issues raised by the petitioner has been dealt by both the courts below but they have not concluded impact of liberty to the petitioner in view of Section 13(2) of the Act of 1954.

4. Learned counsel for the petitioner has relied upon the judgment passed by a coordinate Bench of this Court in Vikram Arora & Ors. Vs. State & Anr. in S.B. Criminal Misc. Petition (3 of 7) [CRLMP-1240/2014] No.1988/2016 decided on 05.09.2016. The relevant portion of the judgment reads as follows:

“In the instant case, admittedly, the sample of sauce bottles was taken on 19.04.2010. The said sauce was manufactured in March 2010 and the shelf-life of the same was 12 months from manufacturing and it was best before 12 months from the date of manufacturing, meaning thereby the life of the sauce was upto February 2011. Petitioners filed application under Section 13(2) of the Act 08.11.2010 which was allowed on 18.03.2011, however, the sample was sent by the Court on 22.06.2011, i.e., much after the expiry date of life of the sauce and the Laboratory found the same not in a condition fit for analysis for the reason that it was received in broken condition and its contents were lost during transit. Therefore, this sort of situation has obviously deprived the petitioners of their right to get the sample analyzed by Central Food Laboratory under sub-sec.(2) of Section 13 of the Act. The obvious effect is that it has prejudiced the cause of the petitioners having direct ramification on the legality and propriety of the complaint and further proceedings undertaken by the learned trial Court pursuant thereto.

Supreme Court, in Municipal Corporation of Delhi Vs. Ghisa Ram (AIR 1967 SC 970), while examining scope of sub-sec.(2) and (5) of Section 13 of the Act, concluded in clear and unequivocal term that right of accused to get sample examined by the Director of Central Food Laboratory is a valuable right and if this right is infringed, his conviction cannot be sustained. The Court held:

“It appears to us that when a valuable right is conferred by S. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because thecertificate of the Director supersedes the report of the Public Analyst and is treated as conclusive -evidence of its contents.

Obviously, the right has been given to (4 of 7) [CRLMP-1240/2014] the vendor in order that, for his, satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.”

The same principle is also reiterated in a latter judgment in case of Girishbhai Dahyabhai Shah Vs. C.C. Jani Anr. [(2009) 15 SCC 64] wherein the Court held:

“In other words, in the instant case, the appellant was prevented from applying for analysis of the second sample before 17-7- 1989, by which time the second sample of curd had deteriorated and was not capable of being analysed as was found in the case of Ghisa Ram (supra) referred to above.

In that view of the matter, we are unable to sustain the judgment of the High Court impugned in this appeal and we also see no reason to continue with the proceedings which have lasted for 28 years in the absence of any valid and reliable report with regard to the second sample.

Accordingly, the appeal is allowed. The order passed by the High Court is set aside and the proceeding, being Criminal Complaint No. 58 of 1989, pending before the Metropolitan Magistrate, Ahmedabad, is quashed.”

A Coordinate Bench of this Court at Jaipur, (5 of 7) [CRLMP-1240/2014] in Nemi Chand Agrawal Vs. State of Rajasthan [2012(2) Cr.L.R. (Raj.) 830], noticing violation of Section 13(2) of the Act has also quashed the complaint under Section 7/16 of the Act. The Court held:

“A bare perusal of above goes to show that after receipt of the report of Public Analyst under Section 13(1), the prosecution could be launched and copy of the report should be supplied to the accused. Sub Section (2) provided that on receipt of the report, the accused could make an application to the Court to get the sample of articles to be analysed by the Central Food Laboratory. In the present case, samples have already been expired in July, 2010, whereas the complaint has been filed in November, 201 and the right which was provided by Section 13(2) of the P.F.A. Act has been taken away by the present petitioner. Hence looking at the above legal position, continuance of proceedings would be an abuse of process and hence liable to be quashed.

In view of foregoing discussion and the law laid down in Ghisa Ram (supra), the instant criminal misc. petition is allowed and entire proceedings against the petitioners in Criminal Case No.121/2011, pending before the learned Chief Judicial Magistrate, Hanumangarh, are hereby quashed and set aside.”

5. Thus, in light of the fact that the sample was drawn on 23.03.2011 and the complaint was filed on 21.07.2011, the petitioner has been admittedly deprived of his right envisaged clearly under Section 13(2) as the samples taken from the petitioner could have been analyzed by Central Food Laboratory, as per the application made by the petitioner.

6. Section 13(2) of the Act of 1954 read as follows:

“13. Report of public analyst.-

(1) ……………………….

(2) On receipt of the report of the result of the (6 of 7) [CRLMP-1240/2014] analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such persons or persons that if it is so desired, either or both of them may make an application to the court within a period of then days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.”

7. Thus, it is clear from the precedent law as well as Section 13(2) of the Act of 1954 that on application of the petitioner, the concerned court within a period of 10 days from the receipt of the copy of the report was to get the sample of the article of food kept by the Local Food Authority analyzed by Central Food Laboratory. It is not disputed by learned Public Prosecutor that self life of the product was only five days and sample drawn culminated into a complaint dated 21.07.2011 and therefore, by no means, any fruitful purpose would be served to the petitioner by sending the sample to Central Food Laboratory in accordance with Section 13(2) of the Act of 1954 as the sample was drawn on 23.03.2011

8. In light of the precedent law as well as the discussion made thereafter, the instant misc. petition is allowed and the entire proceedings against the petitioner pursuant to order dated 22.02.2017 passed by learned Sessions Judge, Jodhpur and the order dated 02.07.2016 passed by learned Chief Judicial Magistrate, Jodhpur framing charges against the petitioner for the offence under Section 7,(i)/16 of the Prevention of Food Adulteration Act, 1954 are hereby quashed and set aside.”

5. The present criminal misc. petition is accordingly allowed, in terms of the aforementioned judgment passed by this Court in S.B. Criminal Misc. Petition No.1376/2017 Pradeep Singhvi and the orders dated 21.03.2014 passed by (7 of 7) [CRLMP-1240/2014] learned Additional Chief Judicial Magistrate, Sumerpur and the entire proceedings of Regular Criminal Case No.782/2013 qua the petitioner pending in the Court of Additional Chief Judicial Magistrate, Sumerpur.

(DR. PUSHPENDRA SINGH BHATI)

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Govt asked to check contamination of fish

Stress on mechanism to test samples
The Kerala State Human Rights Commission has issued directions to the Government to crackdown on the widespread use of chemicals for preservation of fish.
Acting on petitions filed by Manu C. Mathew, C.J. Johnson and Ajith, the commission urged the Government to constitute a task force comprising officials from the departments of Food Safety, Health and Fisheries to carry out periodic inspections at fish markets.
Highlighting the need to keep a constant tab on fish markets at the district, panchayat and taluk levels, acting chairman of the commission P. Mohandas called for a mechanism to collect and test samples at regular intervals.
He stressed the need for a public awareness campaign against the use of chemicals for preservation of fish.
The commission was earlier informed by the Food Safety Commissioner that chemical contamination had been noticed in the fish brought to Kerala from other States.
Ice factories supplying to fish markets were found to be mixing formalin and sodium benzoate was also being used as a preservative.
The department also informed the Commission that inspection of fish markets in coastal areas had been stepped up with the help of the Marine Police.
Observing that the recommendations of the Lok Ayukta to check chemical contamination of fish had not been implemented, the Commission urged the government to take strong steps for the purpose.

Fine imposed on cold drink Thumps Up and 4 others

Guna : ADM Court of Niyaz Ahamed Khan made four people accused and imposed fined of Rs 12 lakh in connection with misbranding of cold drink Thumps Up, co-brand of Coca Cola. It is to be noted that the Food and Drug Department had collect samples from Anil Traders at Ruthiyai 8 months ago.

The samples were sent to Laboratory of Bhopal for testing where it was found misbranded. Subsequently the department took this cognizance and the case was submitted to Niyaz Ahamed’s court. In the matter, notices were served to film stars Salman Khan, Akshay Kumar, South film star Mahesh Babu and Cold Drink Company Thumps up.

In the matter, advocate of Salman Khan submitted his reply and said that Salman Khan is a film star and he endorsed this production company as he was paid money for this. Besides he has no connection with the production of company.

So he would be acquitted from the charges. Expressing satisfaction the Niyaz Ahamed’s court had already given relief to all film stars. On the other hand the court made four persons and the company accused and imposed fined of Rs 12 lakh on them.

Amway guilty of ‘Misbranding’ with fine 1 Lakh

New Delhi, Nov 8
Global direct selling major Amway has been asked to remove two of its products from sales by the apex counsumer commission which also slapped a fine of Rs one lakh on it for wrongly branding its products.
The National Consumer Disputes Redressal Commission (NCDRC) asked Amway India Enterprises Pvt Ltd to remove Amway Madrid Safed Musli (Apple) and Kohinoor Ginger Garlic Paste from the market within a period of six weeks.
“As these products have been sold to certain consumers and they have suffered on account of the unfair trade practice adopted by the petitioner in respect of these two products, I deem it appropriate to set aside the order of the State Commission setting aside the order of the District Forum for awarding exemplary damages of Rs 1,00,000 to be deposited with the Consumer Welfare Fund mentioned in the order,” NCDRC Presiding Member Prem Narain said.
“The petitioner company shall also issue the corrective advertisement as ordered by the District Forum. If the petitioner company wants to reintroduce these products, the same may be introduced after getting the approval from the Food Safety and Standards Authority of India,” the NCDRC said.
According to the petition filed by Consumer Guidance Society, an Andhra Pradesh-based NGO, three items were found to be misbranded or adulterated after samples of products of the firm were tested by the Chief Public Analyst of State Food Testing Laboratory.
The district forum in 2007 had asked the company to remove two out of the three adultrated/misbranded products from market and directed it not to indulge in such unfair trade practices in future.
It had also imposed Rs one lakh as exemplary damages and asked the firm to deposit the amount in the Consumer Welfare Fund.
The state commission had, however, partly allowed the appeal of the firm by asking it not to pay the damages on the ground that the NGO did not suffer any loss.
However, the apex consumer commission considered this as a material irregularity and said the State Commission has perhaps mistook this cost to have been awarded to the respondent which is not correct.

SC-FSSA – Khyber Agro Farms Vs State of J & K – 20 Crore penalty set aside-Oct 30-2017

   

SC sets aside Rs 20 cr penalty for Khyber Milk

 

New Delhi, Nov 07:
In a major relief to Kashmir-based Khyber Agro Farms Pvt Limited, the Supreme Court of India has set aside J&K High Court’s order imposing Rs 20 crore penalty on it.
A three judge bench led by Chief Justice, Deepak Misra on October 30 set aside the J&K HC order observing that the condition imposed by the Court directing the appellant to deposit the amount was “uncalled for”.
“Having heard learned counsel for the parties, we are of the considered opinion that the condition imposed by the Court directing the appellant to deposit the amount is uncalled for. The same is accordingly set aside. As far as other directions are concerned, the Court shall proceed in accordance with the food safety act 2006” the apex court observed. 
“Having perused the impugned order and keeping in view the facts and circumstances of the present case, we are of the considered opinion that the Court be requested to pass an appropriate order, if required, so that the law relating to Adulteration and the Food Safety and Standards Act, 2006 is followed with all earnestness,” the order added.
The appeal on behalf of Khyber Milk was argued by Senior Advocate, Zaffar A Shah, who challenged the orders dated 23.12.2013, 24.03.2014 and 30.01.2014.
“We believe that justice has been done”, a Khyber spokesman said.
Khyber, ever since the controversy began, had maintained that the company has been a “victim of a motivated campaign”. 
The company maintained that the samples were mishandled and not collected as per the food safety requirements, thus taking no responsibility of the milk sample results. It has also filled for additional evidence in the Case.
In 2016 the company had to stop processing milk for one month due to repeated “false allegations and motivations”. 
“Ever since various samples of Khyber milk are being tested and have found to be in accordance with the food safety standards,” the spokesperson for Khyber milk said. 
“Under food safety sampling procedures, the sample is divided into four parts and marked and sealed or fastened up. As its nature permits and the signature or thumb impression of the person from whom the sample has to be taken in such place and in such manner as may be prescribed by the Central Government. After that he has to send one of the parts for analysis to the local food laboratory and two part for safe custody and remaining part for analysis to an accredited laboratory. Provided that if the test reports received from local food laboratory and aggregated laboratory are found to be at variance, then the Designated Officer shall send one part of the sample kept in his custody, to referral laboratory for analysis, whose decision thereon shall be final,” Khyber milk said in a statement.
 

        JUDGEMENT…….               


                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION

                                  CIVIL APPEAL No.17971 OF 2017
                             (Arising out of SLP(C)No.3526 of 2014)


     KHYBER AGRO FARMS PVT LTD                                    ........APPELLANT


                                             VERSUS



     THE STATE OF JAMMU AND KASHMIR & ORS.                        .......RESPONDENTS

                                            WITH
                                  CIVIL APPEAL No.17967 OF 2017
                               (Arising out of SLP(C)No.3732 of 2014)
                                  CIVIL APPEAL No.17968 OF 2017
                               (Arising out of SLP(C)No.3734 of 2014)
                                   CIVIL APPEAL No.17969 OF 2017
                               (Arising out of SLP(C)No.11106 of 2014)
                                  CIVIL APPEAL No.17970 OF 2017
                               (Arising out of SLP(C)No.15656 of 2016)

                                           O R D E R

C.A.No.17971/2017 @ SLP(C)No.3526 of 2014 & C.A.No.17969/2017 @ SLP(C)No.11106/2014 In view of the communication received from the Municipal Magistrate, Srinagar, the time to conclude the trial of complaint is extended till the end of February, 2018.

Leave granted.

The present appeals by way of special leave challenges the orders dated 23.12.2013, 24.03.2014 and 30.01.2014 by which the Division Bench of the High Court of Jammu and Kashmir has imposed certain conditions.

Signature Not Verified Digitally signed by SATISH KUMAR YADAV Date: 2017.11.06 13:54:06 TLT Having heard learned counsel for the parties, we are of Reason:

the considered opinion that the condition imposed by the High Court directing the appellant to deposit the amount is uncalled for. The same is accordingly set aside. As far as other directions are concerned, the High Court shall proceed in accordance with law.

The High Court is requested to pass an appropriate order, if required, so that the law relating to Adulteration and the Food Safety and Standards Act, 2006 are followed with all earnestness. If there is any deviation by anyone, needless to say, that the High Court can take notice of the same and pass appropriate orders.

With the aforesaid modification in the impugned order passed by the High Court, the appeals stand disposed of. C.A.No.17967 of 2017 @ SLP(C)No.3732 of 2014 Leave granted.

The present appeal by way of special leave challenges the orders dated 23.12.2013 and 30.01.2014 by which the Division Bench of the High Court of Jammu and Kashmir has imposed certain conditions.

Having heard learned counsel for the parties, we are of the considered opinion that the condition imposed by the High Court directing the appellant to deposit the amount is uncalled for. The same is accordingly set aside. As far as other directions are concerned, the High Court shall proceed in accordance with law.

The High Court is requested to pass an appropriate order, if required, so that the law relating to Adulteration and the Food Safety and Standards Act, 2006 are followed with all earnestness. If there is any deviation by anyone, needless to say, that the High Court can take notice of the same and pass appropriate orders.

With the aforesaid modification in the impugned order passed by the High Court, the appeal stands disposed of. C.A.No.17968 of 2017 @ SLP(C)No.3734 of 2014 Leave granted.

The present appeal by way of special leave challenges the orders dated 23.12.2013 and 30.01.2014 by which the Division Bench of the High Court of Jammu and Kashmir has imposed certain conditions.

Having heard learned counsel for the parties, we are of the considered opinion that the condition imposed by the High Court directing the appellant to deposit the amount is uncalled for. The same is accordingly set aside. As far as other directions are concerned, the High Court shall proceed in accordance with law.

The High Court is requested to pass an appropriate order, if required, so that the law relating to adulteration and the Food Safety and Standards Act, 2006 are followed with all earnestness. If there is any deviation by anyone, needless to say, that the High Court can take notice of the same and pass appropriate orders.

With the aforesaid modification in the impugned order passed by the High Court, the appeal stands disposed of. C.A.No.17970 of 2017 @ SLP(C)No.15656 of 2016 Leave granted.

Having perused the impugned order and keeping in view the facts and circumstances of the present case, we are of the considered opinion that the High Court be requested to pass an appropriate order, if required, so that the law relating to Adulteration and the Food Safety and Standards Act, 2006 is followed with all earnestness. Ordered accordingly. If there is any deviation by anyone, needless to say, that the High Court can take appropriate notice of the same and pass requisite orders.

The interim order passed by this Court on 07.06.2016 shall also remain in force.

The appeal stands disposed of in the above terms.

…………………….CJI. (DIPAK MISRA) ……………………….J. (A.M.KHANWILKAR) ……………………..J. (Dr.D.Y.CHANDRACHUD) NEW DELHI;

OCTOBER 30, 2017.

ITEM NO.6                COURT NO.1                  SECTION XVI -A

                S U P R E M E C O U R T O F      I N D I A
                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s).3526/2014 (Arising out of impugned final judgment and order dated 30-01-2014 in PIL No.1/2012 passed by the High Court of Jammu & Kashmir at Srinagar) KHYBER AGRO FARMS PVT LTD Petitioner(s) VERSUS THE STATE OF JAMMU AND KASHMIR & ORS. Respondent(s) (Letter dated 20-09-2017 of Municipal Magistrate to be listed for direction) WITH SLP(C) No.3732/2014 (XVI -A) SLP(C) No.3734/2014 (XVI -A) SLP(C) No.11106/2014 (XVI -A) SLP(C) No.15656/2016 (XVI -A) Date : 30-10-2017 These petitions were called on for hearing today. CORAM :

HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE A.M. KHANWILKAR HON’BLE DR. JUSTICE D.Y. CHANDRACHUD For Petitioner(s) Mr.Z.A.Shah, Sr.Adv.

Ms.Purnima Bhat, AOR Mr.Shyam D. Nandan, AOR Mr.Ramesh Kumar Mishra, AOR Ms.Ranjeeta Rohatgi, Adv.

For Respondent(s) Mr.Shadan Farasat, AOR Mr.G.M.Kawoosa, Adv.

Mr.M. Shoeb Alam, AOR Mr.Mehmood Pracha, Adv.

Mr.Mansoor Ali, AOR Mr.Prateek Gupta, Adv.

Mohd.Danish, Adv.

Mr.Shakil Ahmed Syed, AOR Mr.A. N. Arora, AOR Mr.Bharat Sangal, Adv.

Ms.S.Spandana Reddy, Adv.

Ms.Isha Gupta, Adv.

Mr.Shyam D.Nandan, Adv.

Mr.Siddharth B., Adv.

UPON hearing the counsel the Court made the following O R D E R C.A.No.17971/2017 @ SLP(C)No.3526 of 2014 & C.A.No.17969/2017 @ SLP(C)No.11106/2014 In view of the communication received from the Municipal Magistrate, Srinagar, the time to conclude the trial of complaint is extended till the end of February, 2018.

Leave granted.

The appeals stand disposed of in terms of the signed order.

C.A.No.17967 of 2017 @ SLP(C)No.3732 of 2014 Leave granted.

The appeal stands disposed of in terms of the signed order.

C.A.No.17968 of 2017 @ SLP(C)No.3734 of 2014 Leave granted.

The appeal stands disposed of in terms of the signed order.

C.A.No.17970 of 2017 @ SLP(C)No.15656 of 2016 Leave granted.

The interim order passed by this Court on 07.06.2016 shall also remain in force.

The appeal stands disposed of in terms of the signed order.


(SATISH KUMAR YADAV)                             (H.S. PARASHER)
   AR-CUM-PS                                   ASSISTANT REGISTRAR

PFA – Manoj Kumar Vs State of Rajasthan – Nov 1 -12017

Rajasthan High Court – Jodhpur
Manoj Kumar vs State on 1 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 551 / 2011

Manoj Kumar son of Shri Ch iranjeevlal B/c Bhatiya aged about 42 years, R/o Talariya Para, Near Punjab National Bank, Jaisalmer.

—-Petitioner Versus State of Rajasthan

—-Respondent For Petitioner(s) :Mr. LD Khatri For Respondent(s) :

       Mr. MS Panwar, PP

 

HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 01/11/2017

1. Petitioner has preferred this misc. petition under Section 482 of Cr.P.C. for quashing of proceedings in Criminal Original Case No.63/2011 pending before the Court of Chief Judicial Magistrate, Jaisalmer for the offence under Section 7/16 of Prevention of Food Adulteration Act, 1954.

2. At the outset, learned counsel for the petitioner states that the proceedings under the current law was not permissible as the Food Safety and Standard Act, 2006 came into force on 28.03.2008.

3. Learned counsel for the petitioner has referred to the judgment of Pepsico India Holdings (Pvt.) Ltd. & Anr. Vs. State of U.P. & Ors. Delivered by Hon’ble Allahabad High Court (Writ Petition No. 8254/2010 decided on 08.09.2010), relevant (2 of 4) portion shown by the petitioner, reads as under :-

“44. In view of the aforesaid crystal clear legal proposition and particular provisions under the FSSA we are in agreement with the arguments advanced by the petitioner

– s Counsel that for adulteration of food or misbranding, after coming into force of the provisions of FSSA vide notification dated 29th July, 2010, the authorities can take action only under the FSSA as it postulates an overriding effects over all other food related laws including the PFA Act. In view of the specific provisions under the FSSA, the offences relating to adulteration of food that are governed under the FSSA after July 29,2010 are to be treated as per the procedures to be followed for drawing and analysis of samples as have been provided for. The provisions of penalties and prosecution have also been provided therein. Therefore, before launching any prosecution against all alleged offence of food adulteration. It is necessary for the concerned authorities to follow the mandatory requirements as provided under Sections 41 and 42 of the FSSA and, therefore, the police have no authority or jurisdiction to investigate the matter under FSSA. Section 42 empowers the Food Safety Officer for inspection of food business, drawing samples and sending them to Food Analyst for analysis. The Designated Officer, after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations to the Commissioner of Food Safety for sanctioning prosecution. Therefore, invoking Sections 272 and 273 of the Indian Penal Code in the matter relating to adulteration of food pursuant to the impugned Government order is wholly unjustified and non est. furthermore, it appears that the impugned Government Order has been issued without application of proper mind and examining the matter minutely and thus the State Government travelled beyond the jurisdiction.”

(3 of 4)

3. Learned counsel for the petitioner has stated that Para 32 of the judgment of the State of U.P. has accepted the repealing of the earlier act by virtue of Section 97 (1) coming into force on 29.07.2010.

4. Learned Public Prosecutor has, however refuted that the basic averment of the petitioner is not in accordance with law as the notification itself was issued only on 25.07.2011 by the State of Rajasthan for final implementation of the Food Safety and Standard Act 2006 and the Rules of 2011 by the Government of India. Learned Public Prosecutor has also stated that once the Act itself was of the year 2010 and was not finally accepted by the State of Rajasthan, therefore, the precedent law shall not apply in the present case. Learned Public Prosecutor has submitted that even if the Section 97 (1) was to come into force with the statutory force was given by the State of Rajasthan, which is subsequent date in the year 2011 on 05.08.2011 whereas the sample were all taken before 05.10.2011.

5. After hearing counsel for the parties and perusing the record of the case as well as precedent law cited at Bar, this Court is of the opinion that the State of Rajasthan has not accepted the repealing or the main act and the same came into force as per the Gazetted notification issued 25.07.2011. It is also clear that all sample in the petitions have been taken prior to 05.08.2011 and therefore, the analogy drawn in the precedent law is not applicable in the present case.

(4 of 4)

6. In light of the aforesaid observations, this misc. petition is dismissed.

(DR. PUSHPENDRA SINGH BHATI)J.

Court directives in PIL against use of Calcium Carbide in fruit ripening

DB directives in PIL against use of calcium carbide in fruit ripening

JAMMU :
In a Public Interest Litigation (PIL) filed by Voice for Rights against use of calcium carbide in artificial fruit ripening, Division Bench of State High Court comprising Justice Dhiraj Singh Thakur and Justice Sanjeev Kumar has impleaded Director Horticulture Planning and Marketing Department as party respondent and sought action taken report from him.
“Pursuant to the directions passed vide order dated 20.09.2017, compliance report has been filed on behalf of Controller, Drugs & Food Control Organization by H A Siddiqui, Senior AAG with regard to the action taken against the vendors etc who had been found indulging in violating the various provisions of Food Safety and Standards Act, 2006 Rules & Regulations, 2011”, the DB observed.
“Reference to order dated 20.09.2017 would show that action was also desired by this Bench in regard to cancellation of the allotments made in favour of the traders, who had been found indulging in the usage of calcium carbide for ripening of fruit. On this, Sr. AAG submits that action can only be taken by the Director, J&K Horticulture Planning & Marketing Department”, the DB further observed.
Accordingly, Division Bench impleaded Director Horticulture Planning & Marketing Department as party respodent and issued notice to Tarun Sharma, Government Advocate for submitting a report with regard to the action taken report on behalf of the Director pursuant to order 20.09.2017.
“Sanjeev Kumar, Assistant Controller, representing the Controller, Drugs & Food Control Organization submits that the organization has already taken an action against those persons, who had been found indulging in the adulteration of the milk and milk products. A detailed report shall also be filed stating the number of challans that had been preferred against the persons during the last six months with the name of court where the same are presently pending”, the DB said and directed the respondents to file a monthly action taken report in terms of order dated 20.09.2017 before the next date of hearing.