PFA – Delhi HC – Deepak Nair et al Vs State – Imported drink – Misbranded – Responsible persons for prosecution -reg

                      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Reserved on:      03.03.2020
                                           Pronounced on:    23.03.2020

+     CRL.M.C. 535/2017 & Crl.M.A. 2297/2017
      RAGHAV GUPTA                                           ..... Petitioner
                  Through                  Ms.Geeta Luthra, Sr. Adv. with
                                           Mr.Anshul Duggal, Mr.Prateek
                                           Yadav & Mr.Altamish Siddiki, Advs.
                                versus
      STATE & ANR                                           ..... Respondents
                                Through    Mr. Izhar Ahmad, APP for State.

+     CRL.M.C. 580/2017 & Crl.M.A. 2517/2017
      DEEPAK KUMAR & ANR                                     ..... Petitioners
                  Through                  Ms.Geeta Luthra, Sr. Adv. with
                                           Mr.Anshul Duggal, Mr.Prateek
                                           Yadav & Mr.Altamish Siddiki, Advs.

                                versus

      STATE & ANR                                           ..... Respondents
                                Through    Mr. Izhar Ahmad, APP for State.

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                         JUDGMENT

1. Since the facts and issues are same in the present petitions and are filed against the common impugned order dated 06.06.2016, therefore, both petitions are being disposed of vide this common judgment.

2. These petitions have been filed under Section 482 of Code of Criminal Procedure for quashing of complaint case bearing No.4/2012 and order dated 06.06.2016 passed by Ld. ACMM, New Delhi, Patiala House Courts, New Delhi whereby learned Judge was pleased to frame notice under Section 251 Cr.P.C. against the petitioners.

3. Case of petitioners is that they were erstwhile Directors of the company namely V & V Beverages, importer of „Snapple Juice Drink‟, (hereinafter referred to as the alleged food article), which it imported from the United States, among other vendors and supplied to M/s A&M Enterprises, a distributor company, which in turn distributed the same to M/s Barista Coffee Company Limited, the end vendor. All the above mentioned are co-accused in the complaint.

4. Facts as alleged in the complaint are that on 03.05.2011, food officials including Food Inspector and Field Assistant under the alleged supervision of the Local Health Authority (LHA)/SDM reached at premises of M/s Barista Coffee Company Ltd., Connaught Place, New Delhi and lifted sample of 6 bottles of alleged misbranded product which were stored for sale in sealed glass bottles of 473 ml each. One counterpart of the sample was deposited with the Public Analyst (PA) and the remaining two counterparts were deposited with SDM/LHA. Vide report dated 30.05.2011, the PA reported that alleged article was conforming to standards, yet the sample was found misbranded being in violation of Rule 32 (e) of the Prevention of Food and Adulteration Rules 1955, as amended, because there was ostensibly no batch number/ code number mentioned on the label.

5. Rule 32(e) reads as, “Lot/Code/Batch Identification – Batch number Or Code number or Lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution, shall be given on the label”. However, after obtaining due sanction of the Director, PFA, the complaint came to be filed against 9 accused, including petitioners for alleged violation of Section 2 (ix)(k) read with Rule32 (e) of the Prevention of Food and Adulteration Rules 1955, as amended, punishable under Section 5/7 /16(1)(a) of Prevention of Food Adulteration Act,1954. Section 2(ix)(k) defines a food article to be “misbranded” if it is not labeled in accordance with the requirements of this Act or Rules.

6. Ms. Geeta Luthra, learned senior counsel appearing on behalf of petitioners submitted that the sample of “snapple” juice drink is not misbranded under Section 32(e), since the barcode/ Julian code mentioned on the packaging of the sample sufficiently complies with requirement of batch/code/lot number i.e. a combination which can be used to find the batch of product the sample is a part of.

7. She further submitted that the complaint was filed by a public servant and petitioners were summoned vide order dated 05.05.2012.Other accused i.e. 1 to 6 were given benefit of warranty under section 19(2) of the Prevention of Food Adulteration Act and were ordered to be discharged. Subsequently, court ordered notice to be framed against the petitioners, V & V Beverages & Deepak Kumarie. However, Ld. Trial Court has failed to observe that allegation made against petitioners herein is without specifically prescribing any role against them. Thus, there is insufficient material available against which the cognizance should have been taken against petitioners. Only allegation against petitioners is ”as such both the above said directors are in-charge of and responsible for day to day conduct of its business”. The above said allegation in the complaint made by respondent no.2 does not constitute a sufficient cause of action to prosecute and move further with the complaint.

8. Learned senior counsel submitted that the law is settled that use of words “as such” in the complaint to rope in persons who are directors of the company can be said to be inadequate for the criminal court to proceed to summon them. A logical corollary of the present facts and circumstances and settled law makes it evident that the averment / allegation made by the respondent against the petitioners in the present complaint are insufficient to proceed with the trial.

9. Learned senior counsel further submits that the petitioners had in a previous complaint case bearing no. 26/2010 titled Food Inspector versus Jogi Rawal been implicated for similar offence on similar facts. This Court in the case titled Raghav Gupta vs. Food Inspector: 2012 SCO On Line Del 580 was pleased to quash the complaint stating, “In view of above discussion and having regard to the fact that petitioners in the present case have been arrayed as accused persons for their being partners and directors of the respective firms and there being no independent averment or material of their being in charge and responsible for conducting day-to-day business of their firms, the petition is consequently allowed and complaint case bearing no. 26/2010 and the summoning order dated 02.03.2010 passed by learned ACMM, Delhi qua them are hereby quashed.”

10. Learned senior counsel argued that similarly in the present complaint, Complainant has failed to furnish a single independent averment or material of petitioners herein being in charge and responsible for conducting day-to- day business of their firms. Thus, the present complaint deserves to be quashed qua the petitioners. Moreover, petitioners had already resigned from the Company and were not in-charge or responsible for/or discharging any day to day activity and business of accused company, when the samples were seized by Complainant.

11. To strengthen her arguments, learned senior counsel has relied upon the case of Municipal Corporation of Delhi vs. Ram Krishan Rohtagi: (1983) 1 SCC 1, wherein Hon‟ble Supreme Court of India held that:

“Reliance has been placed on the words ‘as such’ in order to argue that because the complaint does not attribute any criminal responsibility to accused Nos. 4 to 7 except that they were in-charge of and responsible for the conduct of the business of the company. It is true that there is no clear-averment of the fact that the Directors were really in-charge of the manufacture and responsible for the conduct of business but the words ‘as such’ indicate that the complainant has merely presumed that the Directors of the company must be guilty because they are holding a particular office. This argument found favour with the High Court which quashed the proceedings against the Directors as also against the Manager respondent No. 1.”

12. She further submits that this Court has taken into consideration the above issue placing reliance on Municipal Corporation of Delhi vs. Ram Krishan Rohtagi: (1983) 1 SCC 1; Shyam Sunder Bhartia vs. State (Through Food Inspector Govt. of NCT Delhi): 2009 (1) JCC 518 and Subhas Chand Gupta Vs. State: 2009 (3) Crimes 310 (Del); Padam Chand Jain vs. State: ILR 1978 Delhi 116 and proceeded to quash the complaints against the partners and directors on identical facts. Therefore, even though the petitioners are not directors and are not involved in the day to day conduct of its business, the Complaint deserves to be quashed against the petitioners herein even if in arguendo we consider the petitioners to be “as such said director in-charge of and responsible for day to day conduct of its business”.

13. Learned senior counsel has pointed out that petitioners had moved an application under Section 294 Cr.P.C. r/w Section 19 (2) of the PFA Act for being discharged as an accused taking benefit of “warranty”. As per Section 19(2) of the PFA Act, what is necessary for the accused is to show that he has purchased the article from any manufacturer, distributor, dealer with a written warranty in the prescribed form. Section 14 of the Act provides that a bill or cash memorandum given by the manufacturer or distributor would itself be deemed to be a warranty. Under Section 19(2) of the Act an accused shall not be deemed to have committed an offence pertaining to the sale of an adulterated article if he proves that he has purchased the article of food with the written warranty and that he sold it in the same state as he purchased. However, in the impugned order, it is specifically mentioned in para 20, “…There have been many instances where the distributors/suppliers have been given the benefit and acquitted of the charges of selling misbranded/adulterated food on the ground that the material was not sufficient to establish that the food article lifted from the vendor was a part of the same lot as was sold by them through a particular bill/invoice. It is therefore essential that the manufacturer/packer give a batch number/lot number/code number to his products so as to identify the same in the distribution process. Therefore, the intention of the legislature behind adding a batch number is purely to have a mechanism for tracing the product in the distribution process, which is provided through the bar code sufficiently.”

14. She further submitted that petitioners had submitted original invoices/bills at the time of purchase of the sample commodity from U.S. based manufacturer, Shwepps International Ltd., before the Ld. ACMM along with the Application under Section 294 Cr.P.C. r/w Section19(2) PFA Act, however, the Ld. Judge failed to appreciate the documents submitted herein and found no merit in the Application stating, “…the complainant cannot be asked to verify those documents when such documents were not supplied during the course of the investigation and the complaint has already been filed. Similarly, the accused persons cannot be discharged at this stage on the ground that the goods were cleared by the customs….”

15. In addition to above, learned senior counsel submitted that according to Circular No.58/2001-CUS dated 25th October, 2001 regarding Application of PFA Act, 1954 and other Acts for the clearance of consignments of food articles -instructions, under point 2.1(c), the Central Board of Excise and Customs decided that the Customs shall undertake the following general checks “…The product should meet the labelling requirements under the Prevention of Food Adulteration Rules and the Packaged Commodities Rules. This includes ensuring that the label is written not only in any foreign language, but also in English. The details of ingredients in descending order, date of manufacture, batch no., best before date etc. are mandatory requirements. All products will also have to indicate details of best before on all food packages. (Reference Ministry of Health notification No. GSR 537(E) dated 13th June 2000)…”. Since the consignment containing the sample was cleared by the custom authorities, accused no. 9, the Company herein is said to have a written warranty in the prescribed form as mentioned under Section 14 of the Act which puts the onus on the manufacturer/packer of the product. However, vide order dated 06.12.2013 Ld. ACMM had discharged accused nos. 1 to 6, allowing their applications under Section 294 Cr.P.C. r/w Section 19(2) of the PFA Act on the ground that they had no role in the matter of printing and affixation of label declaration and the sample lifted by the Food Inspector on 03.05.2011 were sold to accused nos. 1 to 3 by accused nos. 4 to 6 and to accused nos. 4 to 6 from accused no.9 via undisputed bills/invoices without there being any dispute regarding tampering of label declaration of the sample commodity. The petitioners raised similar grounds, having purchased commodities from the manufacturer, Schwepps International Ltd. which was duly cleared for adherence to labelling requirements under the Prevention of Food Adulteration Rules and the Packaged Commodities Rules which includes checking for batch number by the Customs Authority while being imported to India. Therefore, applying the doctrine of parity, if co-accused nos. 1 to 6 were discharged under “warranty”, petitioners herein are entitled to have been discharged on similar grounds.

16. It is further submitted that bar code is a globally recognized standard of labeling and instituted to make the entire system of supply and billing quick and efficient and easily readable through Bar Code Scanning Facilities. Thus, it is clear that purpose of the statute is that the manufacturer of the product can be traced in case of any violation of any of the provisions of the Act and that whole batch of the product can be traced before it is distributed to the mass or identified, if it has already been distributed.

17. On the other hand, case of the respondent is that as per the complaint, on 03.05.2011, food officials including Food Inspector and Field Assistant under the supervision of Local Health Authority (LHA)/SDM reached the premises of M/s. Barista Coffee Company Ltd., Shop No. 9, Regal Building, Connaught Place, New Delhi, and lifted sample of 6 bottles of “Snapple Juice Drink” which were stored for sale in sealed glass bottles of 473 ml each. Sample was lifted as per procedure prescribed under the PFA Act and Rules and necessary documents were prepared at the spot. One counterpart of the sample was deposited with the Public Analyst (PA) and remaining two counterparts were deposited with SDM/LHA. Vide report dated 30.05.2011, the PA reported that the article was conforming to the standards, yet the sample was found misbranded being in violation of Rule 32(e), because there was no batch number / code number mentioned on the label. Based on the report of PA, investigation was carried out by Food Inspector as per the instructions of the SDM/LHA. After obtaining due sanction of the Director, PFA, present complaint came to be filed against 9 accused persons for violation of the section 2(ix)(k) read with Rule 32(e), as Punishable under Section 5/7/16(l)(a) of PFA Act. Accused no. 3 was the vendor company, of which accused no. 1 was the manager and accused no.2 was the whole time director. Accused no. 6 was the distributor firm of which accused nos. 4 and 5 were stated to be the partners. Accused no. 9 is stated to be the importer and supplier company, of which accused no.7 and 8 are the directors responsible for its business affairs.

18. Learned counsel for respondents submitted that there is no stage of „discharge‟ contemplated in Cr.P.C. Moreover, Trial Court is not required to go into minute details of the matters and has to make out a prime facie view on the basis of material placed on record by the complainant. Present case is not like a warrant triable complaint case where the evidence has to be sufficient to convict an accused if considered un rebutted. Accordingly, the learned Trial Court has observed that the present case is only a case of misbranding as per the labelling standards in violation of Section 2(ix)(k) of PFA Act. In the complaint, it is alleged that accused no. 7 to 9 have imported such misbranded food in violation of section 5 and supplied them in violation of section 7of PFA Act, as punishable under section 16(l)(a) of PFA Act. As far as Rule 32(e) is concerned, the petitioners have relied upon the judgment titled as Dwarka Nath vs. MCD: (1971) 2 SCC 314 wherein Hon‟ble Supreme Court of India had struck down said provision being beyond the rule making power under section 23(1) of the PFA Act. After going through the said judgment as well as the applicable rules, learned Trial Court observed that there was no definition of the expression “batch number” or “code number” in the Act or in the Rules. No affidavit had been filed on behalf of respondent to show whether any technical meaning in the trade was given to these expressions and the matter was based only on the evidence of the Food Inspector. Moreover, no notification issued by the Central Government had been brought to the notice of the court with respect to the food article in question showing the applicability of Section 23(l)(c) of PFA Act. As per Rule 32(e) [as it existed at that time (the said judgement was passed on 23.04.1971)], “batch number or code number”, had to be mentioned in Hindi or English or numericals or alphabets or in combination, on every label. Accordingly, the Hon‟ble Supreme Court has held that:-

(a) There was nothing in clauses (c), (f) and (g) of section 23(1) of PFA Act which would give power to the Central Government to frame rules requiring the batch number or code number to be given on the labels, particularly there was no notification brought to the notice of the Hon’ble Court under clause (c).

Clause (b) and (d) of section 23 (1) would also not be applicable as there was no rational or remote connection between the batch or code number artificially given by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article, contained in a sealed tin.

(c) As there is no definition of the expression “batch number” or “code number” either in the Act or the Rules, and it was admitted that even where batch or code number was to be given, there was no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food had to utilised, used or consumed, merely giving an artificial batch number or code number will not be of any use to the public or to the purchaser. Hence, Rule 32(e) was held to be beyond the rule-making power even under section 25(1)(d) of the Act.

19. This Court has heard learned counsel for the parties and perused the material available on record.

20. Learned Trial Court in my considered view after going through the case of Dwarka Nath (Supra), observed that there has been a lot of difference in the language of Rule 32(e) as it existed at the time when the Judgments of Dwarka Nath (Supra) or in Bharat Arora vs. State were passed and that as it existed on the day when the sample was lifted.

21. It is also pertinent to mention here that after 1971, when the judgment of Dwarka Nath (Supra) was passed holding Rule 32(e) as ultra vires of the Constitution, said rule was amended. It was last amended in 2006 and clauses (d), (e), (f), (g) and (h) of Rule 32 were substituted by G.S.R. 491(E) dated 21.08.2006 (w.e.f 20.02.2008) as corrected by G.S.R.518(E) dated 31.07.2007. Thus, at the time of Dwarka Nath (supra) Rule 32(e) read as “a batch number or code number either in Hindi or English numericals or alphabets or in combination”.

22. It is pertinent to mention here that Rule 32(e) as it is existed prior to the G.S.R. 491(E) read as “a distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, the numericals or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words “Batch No.”, or “Batch, or lot No.”, or “lot” or any distinguishing prefix.” Thus, Rule 32(e) as it stood on the day of sampling in the present case read as “lot/Code/Batch Identification- A Batch number or Code number or Lot number which is a mark of identification by which the food, can be traced in the manufacture and identified in the distribution, shall be given on the label”.

23. Thus, an apparent distinction, which can be seen in the language of Rule 32(e) as it existed earlier and as it exists today, is that the purpose of giving batch number / code number / lot number has been specified, that is to identify the food article by any identification mark so as to enable it to be traced in the manufacturing and distribution process. Such meaning /purpose was earlier missing from the language of Rule 32(e).

24. Accordingly, the Trial Court held that in view of the present language of Rule 32(e), it cannot be said that there is no definition of these expressions in the Act or in the rules so as to reveal their purpose, as observed by the Hon‟ble Supreme Court in Dwarka Nath (Supra) decided in 1971. The purpose of mentioning such batch number /code number /lot number has now been made clear by the legislature.

25. In view of above, it cannot be said now that a purchaser would not have any concern with the batch number or code number or lot number on the label artificially given by the manufacturer / packer. It is to be understood that if such a separate number is given to various lots of products prepared, it would be possible to trace the manufacturer /supplier/dealer and to fix their liability for selling adulterated or misbranded food.

26. This Court has noted that under PFA Act, not only the seller but distributors / suppliers and manufacturers are also liable for prosecution. Therefore, unless it is established that any particular product lifted from the vendor was purchased from a particular supplier/distributor, it shall not be possible to apprehend any such person and fix his responsibility. In the absence of any such mark of identification, it would be very easy for any distributor/supplier to deny/disown the lifted incriminating food product to be the one sold by him through a particular invoice.

27. It is important to note that as per section 14 of PFA Act, every manufacturer or distributor or dealer has to sell an article of food by giving a warranty in writing in the prescribed form. As per section 19(2) of PFA Act, a vendor can seek benefit of warranty, if he is able to prove that he had purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form. Rule 12-A of PFA Rules provides that every manufacturer, distributor or dealer selling the article of food to a vendor shall give either separately or in the bill, cash memo or label, a warranty in Form-VI-A. Therefore, to get warranty under section 19(2) of PFA Act, every such vendor or supplier has to establish that he was having a written warranty conforming to Rule 12-A and Form VI-A as prescribed. This Form VI-A specifically provides a column of Batch number or Code number to be mentioned with respect to the product sold. This becomes necessary so as to identify the product as lifted by the food officials. Moreover, if a vendor has been purchasing a particular food article from the distributor/supplier continuously in routine course for a long time, it is only through the batch number or code number mentioned on the article that it could be established as to by what bill/invoice the said product was purchased. In absence of any such batch number or code number having been mentioned on the bills and the products, it would almost be impossible for the food officials to identify if the product lifted for sampling is the same product as was sold to the vendor vide any particular bill or any bill prior thereto or any bill of some other supplier.

28. It is not out of place to mention here that the position would get all the more complicated if there are various distributors / suppliers and multiple vendors involved. The manufacturer might be supplying its product to various distributors who might supply them to multiple whole-sellers who in turn would supply the article to various vendors/retailers. In such position, if the bills/invoices do not mention batch / code / lot number, it cannot be ascertained with certainty as to from which supplier/distributor a particular product was purchased which was found to be adulterated or misbranded. Any such supplier/distributor can deny his liability merely by taking a stand that the product sold by him through a particular bill was not the one as lifted by the food officials. In the absence of any such batch/lot/code number on the product itself, there remains no scope for its being mentioned on any bill / invoice, making it impossible to track the chain of distribution.

29. In view of above, there have been many instances where the distributors/suppliers have been given the benefit and acquitted of the charges of selling misbranded /adulterated food on the ground that the material was not sufficient to establish that the food article lifted from the vendor was a part of the same lot as was sold by them through a particular bill/invoice. Thus, it is essential that the manufacturer/packer gives a batch number / lot number /code number to his products so as to identify the same in the distribution process.

30. Accordingly, it is to be taken into consideration that the Hon’ble Supreme Court had held Rule 32(e), as it existed at that time, ultra vires. Thus, upon passing of the said judgment, Rule 32(e) no more existed in the eyes of law. However, when Rule 32(e) in modified language was again inserted and then substituted with a different language as it exists now, such a provision cannot be said to have been declared ultra vires merely because the number of Rule 32(e) is the same. The said provision inserted / substituted by G.S.R, 491(E) as corrected by G.S.R. 518(E) has to be considered as valid unless declared unconstitutional by any court.

31. Since Rule 32(e) stood amended and substituted in 2006 /2007, it would be applicable in the present case where the sample was lifted on 03.05.2011. The said rule has not been declared unconstitutional or ultra vires and is therefore binding.

32. As far as the policy no. F6(228)/85/ENF/PFA dated 23.09.1985 is concerned, it mandated that in case of misbranding under Rule 32 of PFA Rules, only a written warning was to be issued for the first offence and the prosecution had to be instituted only upon a subsequent offence. However, it is to be noted that this policy was subsequently withdrawn vide office order no. 5/07 dated 14.09.2007, as also observed in the judgment titled as S. S. Gokul Krishnan vs. State: 2009(1) FAC 132, as relied upon by the petitioners. It is not in dispute that said precedent was followed in Hindustan Unilever Ltd. vs. State: 2011(1) FAC 183; Jaykal Exports vs. NCT of Delhi: (2011)122 DRJ 432; Pepsi Food Pvt. Ltd. vs. State: (2012)194 DLT 468 and Gupta Tea Traders vs. State: 2012(2) FAC 415 only because the policy was in existence when the samples in those cases had been lifted. But the samples in the case in hand were lifted on 03.05.2011 on which date there was no such policy in existence, therefore, petitioners cannot seek benefit of such policy that already stood withdrawn.

33. It is important to note here that there is specific averment that in addition to the accused no. 9 company, accused nos. 7 and 8 i.e. the directors were also liable for prosecution as they were in charge of or responsible to the company for conduct of its business affairs under section 17 PFA Act. Vide his letter dated 11.07.2011, Food Inspector had sought reply from the company to inform him about the directors responsible for conduct of its business. In response, the company had named the accused nos.7 and 8 (petitioners herein) as its directors. Thus, prima facie, such information was in the personal knowledge of the company as to the particulars of the person who was in charge of or responsible to it for its affairs. When the accused no. 9 had not furnished specific details and only named accused nos. 7 and 8 to be such persons, the material would be sufficient to take a prima facie view to frame notice against them.

34. In view of above facts, the judgments relied upon by the petitioners are not relevant.

35. Accordingly, I find no illegality or perversity in the impugned order passed by Ld. ACMM,-II, New Delhi, Patiala House Courts.

36. Accordingly, I find no merit in the present petitions and they are, accordingly, dismissed.

Crl.M.A. 2297/2017 in Crl.M.C.535/2017 Crl.M.A. 2517/2017 in Crl.M.C.580/2017

37. In view of the order passed in the present petitions, these applications have been rendered infructuous and are, accordingly, disposed of.

(SURESH KUMAR KAIT) JUDGE MARCH 23, 2020 

TN : HC orders conditonal functioning of unlicensed Packaged Drinking Water Units

FSSA : Delhi ACMM Court – State Vs Ashok Agarwal others – Pista sample

                  IN THE COURT OF SHRI NAVJEET BUDHIRAJA,
                 Additional Chief Metropolitan Magistrate - I
                      Patiala House Courts, New Delhi

Case No. 35055/16

Date of Institution:                              28.05.2014
Date of reserving judgement:                      15.01.2020
Date of pronouncement:                            03.03.2020

In re:

Food Safety Officer,
Department of Food Safety,
Government of NCT of Delhi,
A-20, Lawrence Road Industrial Area,
Delhi-110035.                    ...                     Complainant

                 Versus

1. Sh. Ashok Aggarwal S/o Late Sh. B.R. Aggarwal
   M/s Aggarwal Confectionary,
   B-14/3, Main Market Vivek Vihar, Delhi-110095
   R/o C-187, G-3 Ram Prastha
   Ghaziabad, U.P.

2. Sh. Rajat Khanna S/o Sh. Pardeep Khanna
   M/s Coco Food Products
   FA/B-1 Extn. MCIE Mathura Road, New Delhi-110044
   R/o E/8 East of Kailash
   New Delhi.
                                 ...... Accused persons
JUDGMENT:

1. This judgement pertains to the complaint filed under section 26/59 of Food Safety and Standards Act, 2006 (FSS Act), alleging that the accused persons have violated the provisions of the FSS Act and Rules.

2. The vignette of the complaint is that on 21.10.2013, the complainant Ram Pratap Singh, Food Safety Officer (in short FSO) alongwith Sh. Subedar Mishra, Field Assistant (in short FA) visited M/s Aggarwal Confectionery, B/14/3, Main Market, Vivek Vihar, Delhi-110095 where accused Ashok Aggarwal (FBO) was found conducting the business of various food articles including ‘Pista’ which was sold for sale for human consumption. The Pista was lying in sealed packet of 250 grams each bearing identical label declaration and same batch number. The FSO disclosed his identity to the accused FBO and purchased a sample of Pista which consisted of four sealed packets of Pista against the receipt of Rs.1000/- in cash dated 21.10.2013. The sample was divided into four counterparts and was packed, fastened and sealed according to FSSA Rules and Regulations. Notice in Form VA was given to the accused and Panchnama was prepared. Accused did not make any request to the FSO for sending one sample to the Accredited Laboratory for testing. One counterpart of the sample was sent to Food Analyst, Delhi on 22.10.2013 and other counterparts were also dealt with as per FSSA Act. The Food Analyst vide his report dated 31.10.2013 opined the sample to be substandard as it contained unopened shells exceeding the prescribed maximum limit of 2%.

3. The designated Officer concerned sent a copy of the Food Analyst’s report to the FBO on 06.11.2013 for giving him an opportunity to file an appeal against the report of Food Analyst under section 46(4) for sending one counterpart of the sample to the Referral Laboratory, if so desired by the FBO. The FBO preferred an appeal against the report of the Food Analyst and one counterpart of the sample was sent to the Referral Food Laboratory by the Designated Officer on 06.12.2013. The Director Referral Food Laboratory, Mysore vide certificate dated 10.01.2014 reported that the sample was “unsafe” as defined under section 3(i)(zz)(ix)* & (xi) of Food Safety and Standard Act 2006 as it does not conform to the standards laid down for under the provision of Food Safety & Standards (Food Products Standards and Food Additives) Regulations 2011, thereof, in that :

*(a) Sample was infested with live insects

(b) Percent unopened shells exceeds the maximum permissible limit and

(c) Percent empty shells exceeds the maximum permissible limit.

4. Upon receipt of report, the DO ordered investigation which was carried out by FSO. After completion of investigation, sanction under section 30(2)(e) of the FSS Act was obtained from the Commissioner, Department of FSS Act, 2006. The complaint was then filed in the court on 28.05.2014 alleging violation of section 26(2)(i), 26(2)(ii) and section 27(1) of Food Safety and Standards Act, 2006 read with section 3.1(zz)(ix)(xi) of the Food Safety and Standards Act, 2006 and Regulation no. 2.3.47.3 of Food Safety and Standards (Food Product Standards and Food Additive)Regulation, 2011 punishable U/s 59(i) and section 51 of the Food Safety and Standards Act, 2006.

5. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 05.07.2014.

6. On the basis of the Report of RFL, separate notice was framed against the accused persons on 08.08.2016. Notice was framed against accused No. 1 Ashok Aggarwal for commission of violation of Section 26(2)(i) and (ii) of FSSA Act r/w section 3(i)(zz)

(ix) & (xi) of FSSA Act and Regulation No. 2.3.47.3 of FSS (Food Products Standards and Food Additives) Regulations 2011 punishable U/s 51/59(i) of FSSA Act, 2006 and separate notice was framed against accused No. 2 Rajat Khanna for commission of violation of section 27(1) and 26(2)(i) and (ii) of FSSA Act r/w section 3(i)(zz)(ix) & (xi) of FSSA Act and Regulation No. 2.3.47.3 of FSS (Food Products Standards and Food Additives) Regulations 2011 punishable U/s 51/59(i) of FSSA Act, 2006, to which they pleaded not guilty and claimed trial. During the pendency of the case, accused No. 1 Ashok Aggarwal got expired and proceedings against him were abated.

7. During the trial, the complainant examined three witnesses i.e PW-1 FSO Sh. Ram Pratap Singh, PW2 FA Sh. Subedar Mishra and PW3 DO Sh. R.P. Singh. All these witnesses deposed on the lines of the complaint and on other aspects of investigation.

Following documents were got exhibited during the testimony of aforementioned witnesses :-

FBO receipt Ex. PW-1/A, Notice as per Form-VA Ex. PW-1/B and Panchnama Ex. PW-1/C. Raid report is Ex. PW-1/D. Memo as per Form-VI vide Receipt Ex. PW-1/E. the receipt of the sample to the DO Ex.PW1/F, the Food Analyst Report Ex.PW1/G, intimation letter Ex.PW1/H, accused No. 1 preferred appeal vide proceedings x.PW1/I, postal receipts Ex.PW1/J, report of RFL Ex.PW1/K, letter Ex.PW1/L, Ex.PW1/M and Ex.PW1/N. Reminder Ex.PW1/O, letter Ex.PW1/P, sanction Ex.PW1/Q and the complaint is Ex.PW1/R.

8. All the three witnesses were cross-examined on behalf of the accused. Complainant’s evidence stood closed vide order dated 08.02.2018.

9. Statement of accused No. 2 Rajat Khanna under section 313 Criminal Procedure Code, 1973(Cr.PC) was recorded on 10.04.2019 wherein incriminating circumstances appearing in the evidence were posed to him. He pleaded his innocence and stated that witnesses have deposed falsely against him. He further stated that the consent is bad without proper application of mind by the Director, PFA.

10. Accused got examined Ct. Jaiveer as DW1 in his defence, who was also cross-examined on behalf of complainant. Thereafter, both the parties addressed their respective arguments.

11. Ld. SPP for the complainant argued that though main accused No. 1 Ashok Aggarwal has expired, however, accused No. 2 Rajat Khanna has not controverted the evidence adduced on behalf of the prosecution. On the other hand, Ld. Counsel for accused No. 2 argued that there is no evidence to connect accused No 2 with the sample commodity as there is no invoice/bill that the sample commodity was provided to accused No. 1 by accused No.

2.

12. I have perused the record of the case and given my thoughtful consideration to the issues involved.

13. At the outset, it is highlighted that the main accused FBO Sh. Ashok Aggarwal from whose confectionery the sample commodity Pista was taken got expired during the trial. The report of RFL Ex.PW1/K with regard to the sample is explicit that the sample was found containing unopened shells to the tune of 8.8 and as per the regulation No. 2.3.47.3, the same should not be more than 2.0. The same goes for empty shells which was found to be 1.35 and which should not be more than 1.30. The sample was also found to be the infested with live insects in few shells. However, since accused FBO has already expired, conviction cannot be awarded to him.

14. As regards the role of accused No. 2, it is discernible that though from Ex.PW1/B i.e found VA, the sample commodity is shown to have been processed and packed by Coco Food Products Corporation, whose partner is shown to be accused No. 2 Sh. Rajat Khanna but there is no invoice/bill on record which could evince that the sample commodity was sold to accused No. 1 by accused No.2. PW2 Sh. Subedar Mishra, FA fessed up in his cross- examination that accused No. 1 did not furnish any bill showing the source of purchase of the sample commodity. Though accused No. 2 did not explicitly flag the issue that sample commodity was not supplied by by him, nonetheless first and foremost it is responsibility of the prosecution to gather evidence with regard to the invoice/bill in respect of the sample commodity and in the absence of same prosecution cannot derive any advantage of weakness of defence of the accused. Thus, in the absence of any evidence connecting accused No. 2 as the source of supply of sample commodity to accused No. 1, he cannot be held liable for the offences involved.

15. In the backdrop of above discussion, it is held that the case against accused No. 1 has already been abated owing to his demise and due to lack of sufficient evidence no case is made out against accused No. 2. Accused No. 2 Sh. Rajat Khanna stands acquitted for violation of section 27(1) and 26(2)(i) and (ii) of FSSA Act r/w section 3(i)(zz)(ix) & (xi) of FSSA Act and Regulation No. 2.3.47.3 of FSS (Food Products Standards and Food Additives) Regulations 2011 punishable U/s 51/59(i) of FSSA Act, 2006.

16. Ordered accordingly.

Announced in the open court
on 03.03.2020                                     (NAVJEET BUDHIRAJA)
                                                    ACMM-I (New Delhi), PHC





 

FSSA – HC Nagpur bench – Wahid Khan Vs State – License for sale – March -04-2020

                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                NAGPUR BENCH, NAGPUR

                             WRIT PETITION NO.5013/2018
                              Wahid Khan s/o Jakir Khan
                                               Vs.
         The Food Safety and Standards Authority of India, through Chairperson and others.


                          Shri S.A.Mohta, Advocate for petitioner.
                          Shri R.H.A.Sikandar, Advocate with Shri R.V.Malviya, Advocate for
                          respondent no.1.
                          Shri M.A.Kadu, Assistant Government Pleader for respondent nos. 2 and
                          3.

                          CORAM : A.S.CHANDURKAR and VINAY JOSHI, JJ.

                                                                         DATE : March 04, 2020.

The petitioner who holds a license under the provisions of Maharashtra Shops and Establishment Act, 1948 seeks to challenge the order dated 19.07.2019 issued by the Commissioner of Food Safety thereby prohibiting manufacture, storage, distribution, transportation and sale of tobacco and betel nut particularly if it goes by the name of Pan Masala.

On hearing the learned counsel for the parties, we find that it is the case of the petitioner that he carries on “food business” as defined by Section 3(n) of the said Act. As of today, the petitioner does not have a license as contemplated by Section 31(1) of the Food Safety and Standards Act, 2006 (for short, ‘the said Act’). As per Section 3 (za) a license as defined means a license granted under Section 31 of the said Act. Admittedly, the petitioner has not applied for any license under Section 31(1) of the said Act. It is his apprehension that as he intends to sell Pan Masala which sale is prohibited under the impugned order, he would not be issued such license.

WP5013.18 2/2 Presently, we find the challenge as raised by the petitioner to be premature. The petitioner has not yet been refused any license under Section 31(1) of the said Act to give him any cause of action to enable him to challenge the impugned order. Hence we are not inclined to examine the challenge on merits. It is open for the petitioner to raise a challenge if a legal cause for the same arises. By keeping all the points raised in the petition open, the writ petition is disposed of. No costs.

                                            JUDGE              

FSAT New Delhi : Pan Masala Sub standard – Appeal on fine

     IN THE COURT OF SH. DINESH KUMAR SHARMA
             DISTRICT & SESSIONS JUDGE/
        FOOD SAFETY APPELLATE TRIBUNAL
                 NEW DELHI
In the matter of :
FSAT No. 03/17
CNR No.DLND01­000366­2017

1.)Vijay Prakash Shukla
S/o Sh.Vishwanath Shukla
M/s Som Pan Products Pvt. Ltd.
C­123,Naraina Industrial Area Phase­I
New Delhi.

2.)M/s Som Pan Products Pvt. Ltd.
Through: Shri Vijay Kumar Shukla
Authorised Representative
C­123,Naraina Industrial Area Phase­I
New Delhi­110028.                                                ..... Appellants

                                               Versus
The State
Through:Sh.S.P.Singh
Food Safety Officer
Department of Food Safety
Govt. of NCT of Delhi
8th Floor, Mayur Bhawan, Connaught Place
New Delhi.                                                               .....Respondent
                                     Date of filing      : 07.01.2017
                                     Date of arguments   : 11.02.2020
                                     Date of judgment     : 20.02.2020



FSAT No.03/17                                                                       Page No. 1 of 6
Vijay Prakash Shukla & Anr. Vs The State
 JUDGMENT

1. The appeal filed by appellants bearing FSAT No.03/17 was dismissed by my Ld.Predecessor vide order dated 17.05.2018. The appellants challenged this order dated 17.05.2018 before the Hon’ble High Court. The Hon’ble High Court in W.P.(C) 8494/2018 & CM Nos.12030/2018 & 29343/2018 set aside the order of my Ld.Predecessor and matter was remanded back to the Tribunal to consider the same afresh.

2. In back drop, the appellants challenged the order dated 26.12.2016 of Adjudicating Officer whereby a consolidated penalty of Rs.Two Lacs u/S 52 of The Food Safety & Standards Act, 2006(“FSS Act” in short) was imposed on both the appellants and was further directed cancellation of license of the firm u/S 64(1)(iii) FSS Act, being a repeat offence.

3. The facts in brief as narrated by my Ld.Predecessor are that on 29.05.2015, sample of Dilbagh Pan Masala was lifted by the Food Safety Officer (“FSO” in short) from FBO cum Nominee Sh. Vijay Prakash Shukla/ appellant no.1. The Food Analyst vide its report dated 11.06.2015 found the sample to be in violation of Regulation 2.2.2.5(ii)(b) of The Food Safety and Standards (Packing & Labeling) Regulations,2011 (“FSS (P&L) Vijay Prakash Shukla & Anr. Vs The State Regulations” in short) . Complaint /application was filed before the Ld. ADM who after hearing both the sides imposed a consolidated penalty of Rs.2,00,000/­ on both the appellants.Aggrieved by the imposition of the penalty of the said amount, the appellants have preferred the present appeal. It is seen that the appellants have not mentioned anything about cancellation of license. The impugned order of penalty of Rs. Two Lacs has been challenged inter­alia on the grounds that it has been passed on conjectures and surmises.The Ld.ADM failed to consider the submissions made by the appellants that the sample commodity was not a food article and and hence, the FSO was not competent to lift the sample because the sample commodity is covered under Cigarette and Tambaaku Act, 2003. Further, the lifted sample sufficiently complied with FSS (P&L) Regulations and the FSS Act. No case of misbranding was made out.

4. The appellate court after taking into account the Regulation 2.2.2.5(ii)(b) of FSS (P&L) Regulations & Regulation 3.1.10(1) of The Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 inter­alia held that the declaration ‘Contains Added Flavour’ and the type of flavoring agent was required to be put on the label. The court Vijay Prakash Shukla & Anr. Vs The State noted that the declaration ‘Contains Added Flavour’ was on the wholesale box but it was missing on the individual sachet sold to the consumer.

5. The perusal of the order dated 17.05.2018 also indicates that the court also physically saw the sachets and found that declaration was made on the label of the box containing multiple sachets and not on independent sachets meant for consumption. It is pertinent to mention here that the case of the department was that the appellants have earlier been convicted for the same offence and therefore, liable for punishment for subsequent offence u/S 64 FSS Act. The court taking this fact into account upheld the punishment for imposing of consolidated penalty of Rs.Two Lacs and the cancellation of license. The Hon’ble High Court vide order dated 15.05.2019 has been pleased to held that there was no material to establish that the petitioner committed any offence after being convicted for the first time on 15.12.2016 and therefore, the Tribunal could not have proceeded on the basis that the petitioner had committed repeated offence as contemplated u/S 64 FSS Act. Hon’ble High Court further directed that the question as to the quantum of penalty would be reconsidered by the Tribunal and would be subject to any further order that may be passed. The order regarding suspension of Vijay Prakash Shukla & Anr. Vs The State license was also set aside as the Hon’ble High Court was of the view that the petitioner ought not to be prevented from carrying on his business on account of the offence as alleged in the present petition.

6. Ld.Counsel for the appellants during submissions only emphasized on the point that the appellants could not have been convicted u/S 64 FSS Act for subsequent offence. It is a matter of record that in the present case, first sample was lifted on 31.03.2015 in which the Adjudicating Officer passed an order on 15.12.2016 and a penalty of Rs.One Lac was imposed. The appeal filed against the order dated 15.12.2016 was rejected vide order dated 16.05.2018. In the meanwhile, second sample was lifted on 29.05.2015 and the Adjudicating Officer passed an order dated 26.12.2016. The order dated 26.12.2016 is only the subject matter of the present proceedings. Thus, the Hon’ble High Court has aptly held that when the second sample was collected on 29.05.2015, no conviction was passed in respect of the sample collected on 31.03.2015. Therefore, the appellants could not have been convicted for the offence u/S 64 FSS Act for subsequent offence. Since it is not a subsequent offence, the appellants are liable to be convicted for the offence u/S 52 FSS Act. I consider that taking into account the entire facts and circumstances, a Vijay Prakash Shukla & Anr. Vs The State consolidated penalty of Rs.One Lac be imposed upon the appellants no.1 & 2. If the appellants have deposited the excess amount, the same may be refunded as per law. The appeal is disposed off in terms of the above order.

7. Copy of this judgment be sent to the Ld.ADM concerned .

8. Appeal file be consigned to Record Room.

TN : HC notice to health, food safety depts on salt iodisation

The Madurai Bench of the Madras High Court on Thursday issued notices to the Ministry of Health and the Family Welfare and Food Safety Department in a plea seeking to quash the Central government’s order on iodisation of salt.
Madurai: 
A division bench of Justice M Duraiswamy and Justice T Ravindran was hearing a petition filed by TSP Jayapalan, secretary, Thoothukudi Thanpaadu Uppu Ettrumathi Viyabarigal Sangam, on the issue.
The petitioner stated that salt, which is being traditionally manufactured depending purely on nature in Thoothukudi, need not require fortification of iodine for human consumption. Salt is a natural element of soils and water. Earlier, the Food Safety and Standards Authority of India, through a notification, had prohibited the sale of non-iodised salt
The Food Safety Regulations, 2011, had cited that consumption of iodised salt could be set right. But, it did not mean that by using common salt, it would cause harm to health. Therefore, the impugned amendment could not be sustained on this sole ground.
Further, the petitioner claimed that some people might have more iodine content in the body while some others could have deficiency of it. As a result, every person could feel physical inconvenience, the medical prescription would only guide on whether salt could be consumed with or without iodine. Therefore, generalising the whole concept by way of an amendment could not stand the test of law.
Several scientific data revealed that if iodine content increased in the body beyond the required level, it would result in depression, impotency, hyperthyroidism and so on. Therefore, the regular consumption of iodised salt would harm consumers’ health, the petitioner said.
Meanwhile, counsel for the petitioner argued that since AYUSH is the accredited institution founded by the Centre through special ministry, it has the expertise to give its opinion as to whether or not the common salt could be permitted to be used for human consumption. Hence, it has become necessary to get AYUSH impleaded in this case, counsel said.
After hearing, the bench issued notices to the Ministry of Health and the Family Welfare and Food Safety Department to respond and adjourned the case until further notice.

FSSA – HC MP @ Indore – Laduram Vs State of MP – Adulterated Milk products seized and destroyed case

                             1


           THE HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
                        M.Cr.C.No.46425/2019
                (Laduram Vs. State of M.P. & Ors.)
       Shri Jagdish Baheti, learned counsel for the applicant.
       Shri Yogesh Kumar Gupta, learned Public Prosecutor for
 the respondents/State.
                               ORDER

(Passed on 16 /01/2020) The applicant has preferred the present petition under Section 482 of the Cr.P.C. for quashment of FIR bearing Crime No. 225/2019 registered against the applicant at Police-Station- Rampura, District- Neemuch for commission of offence punishable under Sections 272, 273 and 420 of the IPC.

2. Brief facts of the case are that complainant-Sanjeev Kumar Mishra, Food Safety Officer, Neemuch submitted a written complaint at Police-Station-Rampura, District-Neemuch on 01/11/2019 stating that on 23/10/2019, he collected samples of mixed milk of cow and buffalo, mawa, paneer, cream, curd and ghee from the dairy of the applicant situated at Rampura. He sent all the samples to State Food Laboratory, Bhopal for analysis on 24/10/2019 and also destroyed stock of above milk products after seizure. It is further submitted that on 25/10/2019, five samples of mixed milk alongwith other material i.e. Skimmed milk powder, detergent powder, maltose and refind oil etc. were collected from the dairy plant of the applicant situated at village Dudhlai and sent for analysis to State Food Laboratory, Bhopal. It is also submitted that other material available at the dairy plant worth of Rs.3,36,600/-were also seized and destroyed.

3. It was also averred in the said report that it is apprehended on the basis of the adulterants and other material available at the diary plant that the concerned milk and milk products were adulterated/synthetic. It has also been alleged that in the report that the accused used the tanker with a written board on it regarding on government duty and Saras Dairy for transportation of milk and thereby cheated the general public and accordingly, it was requested to the police authorities that considering the material seized from the applicant, it appears that he was involved in the business of adulterated milk and milk products, thus, it will be appropriate to registerer FIR against the applicant. On the basis of said written complaint, FIR bearing Crime No. 225/2019 has been registered against the applicant at Police-Station-Rampura, District-Neemuch for commission of offence punishable under Sections 272, 273 and 420 of the IPC. Being aggrieved by registration of avove FIR , the applicant has preferred the present petition for its quashment.

4. Learned counsel for the applicant has submitted that Section 38 of the Food Safety and Standards Act, empower the Food Safety Officer (FSO) to take samples of the food articles in the manner as procedure prescribed under Rules 2.4.1 of the Rules for analysis and to inspect places, where food articles are manufactured, stored or sale and even for seizure of food articles but does not authorize or empower the FSO to perform test or analysis of any food article himself and the authority of analysis is vested with public analyst only and untill a report of the public analyst is received the Food Safety Officer is not authorized and not supposed to presume in advance that the samples collected are adulterated or injurious to health. It is also submitted by the learned counsel for the applicant that the samples collected by FSO has already been sent to State Food Laboratory, Bhopal for analysis but till date no report of public analyst has been received. It is further submitted that the FIR has been registered by the Police against the applicant under Sections 420, 272 and 273 of the IPC on the allegations that the applicant has committed fraud to the general public by selling adulterated milk and milk products and on the basis of the possession of certain other material, which is used for cleaning of the containers and also used for sampling of milk, while collected from small vendors. In these circumstances, it is not legal to raise any baseless presumption against the applicant regarding possession/sale of adulterated/ noxious food/ milk products, therefore, no offence under Section 420 of the IPC will be made out against the applicant. Under these circumstances, learned counsel for the applicant submitted that the aforesaid FIR is premature and liable to be quashed.

5. On the other hand, learned Public Prosecutor for the respondent/State supported the registration of the FIR against the applicant and prayed for rejection of the petition.

6. Having heard, learned counsel for the parties and perused the record.

7. From the perusal of the record, it appears that on the basis of written complaint made by complainant, the police has registered FIR bearing Crime No. 225/2019 against the applicant at Police-Station-Rampura, District- Neemuch for commission of offence punishable under Sections 272, 273 and 420 of the IPC. Though, the learned counsel for the applicant has submitted that there is no public analyst report is available on record to established that the samples collected by the Food Safety Officer, Neemuch are adulterated, therefore, the said FIR is premature and liable to be quashed. However, from the averments made in the FIR, it appears that the samples collected by the FSO from the premises of the applicant has already been sent to State Food Laboratory, Bhopal for analysis and public analyst report is awaited, therefore, the investigation is pending before the police.

8. In the leading case of Bennett v Horseferry Road Magistrate’s Court [1993] 3 All ER 138, it is held that on the application of abuse of process, the court confirms that an abuse of process justifying the stay of prosecution could arise in the following circumstances: (i) where it would be impossible to give the accused a fair trial; or (ii) where it would amount to misuse/manipulation of process because it offends the court sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.

9. In the present case, it cannot be determined from the material available on record that the petitioner cannot receive a fair trial because investigation is still in continuation. It is settled law that if allegations made in the FIR prima facie disclose cognizable offence, interference in investigation is not proper and it can be done only in the rarest of rare cases where the Court is satisfied that the prosecution is malicious and vexatious.

Without a thorough investigation, it is not possible or proper to hold whether the allegations made by the complainant are true or not. Hence, the investigation should have been allowed to continue so that on filing of the report under Section 173 of the Code of Criminal Procedure affected party could pursue its remedy against the report in accordance with law.

10. In the case of Pastor P. Raju (supra) in paragraph 15 it has been observed as follows:-

“There is another aspect of the matter which deserves notice. The FIR in the case was lodged on 15.1.2005 and the petition under Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the investigation had just commenced. The petition was allowed by the High Court on 23.2.2005 when the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the incharge of the police station concerned to the Magistrate empowered to take cognizance of the offence. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in Union of India v. Prakash P. Hinduja & Anr. (2003) 6 SCC 195, where after referring to King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18, H.N. Rishbud & Inder Singh v. The State of Delhi AIR 1955 SC 196, State of West Bengal v. SN Basak AIR 1963 SC 447, Abhinandan Jha & 5 MCRC- 27246-2017 Ors. v. Dinesh Mishra AIR 1968 SC 117 and State of Bihar & Anr. v. JAC Saldanha & Ors. (1980) 1 SCC 554, it was observed as under in para 20 of the reports :-

“20. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency.” This being the settled legal position, the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 Cr.P.C. when the matter was still at the investigation stage”

11. Similarly in the case of D.V. Subramaniam (supra), the Hon’ble apex Court has held that it has been statutory duty of the police to investigate into the crime and the courts normally ought not to be interefered and guide the investigation agency as to and in what manner the investigation is to be proceeded.

12. Apex Court in State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors. (AIR 1982 SC 949) had the occasion to deal with this issue. Three Judge Bench laid down the following principle:

“……..The condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence.”

13. The Hon’ble Apex Court in paragraphs 29 and 30 of the said decision has held as under:

“29. The High Court, in our view, failed to see the extent of its jurisdiction, which it possess to exercise while examining the legality of any FIR complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof.

30. At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the Complainants and visa-se-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.”

14. From the perusal of the FIR, it reflects that the FIR has been registered against the applicant for commission of cognizable offence and the investigation is going on, therefore, in the context of law laiddown by the apex court in the above mentioned cases, it will not be appropriate to quash the FIR at this stage and the investigtion cannot be interfered with by invoking the extra ordinary jurisdiction under Section 482 of the Cr.P.C. Hence, the present application is dismissed granting liberty to the applicant to raise all the objections before the trial Court at an appropriate stage, if the charge-sheet is filed against him.

15. Let a copy of the order be sent to the trial Court for information.

Certified copy as per rules.

                                                                     (S. K. Awasthi)
                                                                         Judge