IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APL) NO.61/2014 Hemant s/o Sukaji Funde, aged 57 years, Occ. Agriculturist, r/o Narayan Nagar, Amgaon Gondia Road, Tq. Amgaon, Dist. Gondia. .....APPLICANT ...V E R S U S... State of Maharashtra through Food Safety Officer, Food and Drug Administration (M.S.) Bhandara. ...NON APPLICANT ------------------------------------------------------------------------------------------- Mr. S. A. Bramhe, Advocate for applicant. Mr. R. S. Nayak, A.P.P. for non applicant-State ------------------------------------------------------------------------------------------- CORAM:- V. M. DESHPANDE, J.
DATED :- 05.09.2017 ORAL JUDGMENT
1. Heard Mr. S. A. Bramhe, Advocate for applicant and Mr. R.S. Nayak, A.P.P. for non applicant-State. The present proceeding is under Section 482 of the Code of Criminal Procedure for quashing of the Regular Criminal Case No.129/2013 pending on the file of Judicial Magistrate First Class, Amgaon for an offence under Section 3 (1) (zz) (ix), 26 (1), 26 (2) (i), 27 (2) (c) punishable under Section 59 of the Food Safety and Standards Act, 2006.
Along with compilation, the complaint which gives rise to present proceeding is annexed and it is at page nos.35 to 45.
2. The present applicant is shown as accused no.2 in the said complaint. The cause title of the complaint depicts that he is Secretary of Gurukrupa Adiwasi Prathmik and Madhyamik Ashramshala, Thana, Tq. Amgaon, Dist. Gondia. As per the complaint, the complainant Shri P. A. Umap, is Food Safety Officer duly appointed under Section 37 read with Rule 2.1.2 of the Food Safety and Standards Act, 2006 and Rules thereunder (hereinafter referred to as the “Act” and “Rules” for the sake of brevity). The said Shri Umap is appointed as Food Safety Officer vide notification No.FSSA/MS/FDA/Food Safety Officers dated 01.08.2011. The complaint further proceeds that on 15.09.2012, at about 13.30 hrs. the complainant along with panch witness visited the premises of accused no.3-Gurukrupa Adiwasi Prathmik and Madhyamik Ashramshala, Thana, Tq. Amgaon, Dist. Gondia. That time accused no.1-Raju Narayan Chute, Superintendent was present in the premises and was looking after the stock of food articles including rice for preparation of meals for students.
3. The complainant disclosed his identity and also his intention for drawing sample of the food articles. The 3 apl61.14.odt complainant, after disclosing his intention for drawing the sample of rice under the said Act for test and analysis and demanded and purchased 2 Kg. Rice from the accused and paid the cost of Rs.13.30/- of it as per the market rate and obtained cash receipt for the same. Thereafter, he issued notice in Form V-A to the accused no.1 informing him that the sample was taken for analysis and obtained receipt for the same. Thereafter complainant issued notice under Rule 2.4.1 (4) to the accused no.1 asking thereby the source of sampled food article of rice and also about the fourth part and obtained receipt for the same. It was replied by accused no.1 in writing that rice is supplied by Tahsildar, Amgaon, Dist. Gondia and he does not intend to send the fourth part to any laboratory.
4. Subsequent to that, the complainant at the spot itself divided the rice in four equal parts. Each part of rice was put in clean and dry empty plastic jar and closed the mouth of the jar and it was sealed. The complainant thereafter affixed a label on each part of the sample detailing therein about food article, place and date of sampling and paper slip number and signature of the complainant, panch witness and accused no.1. Thereafter, the complainant wrapped each part of the sample in thick brown paper and pasted a paper slip of Shri M. S. Kembalkar, the then Designated Officer, Food and Drug Administration (M.S.), Bhandara bearing Code No.FSSA/BH/DO-1, Sr.No.0142 from bottom to top and obtained cross-signature of accused no.1 on each part of sample in such a way that part of signature will appear on brown paper. Thereafter the complainant seized the remaining stock of 3948 Kg. rice cost of which was Rs.26,254/- as per the powers delegated to him under Section 38 of the said Act by giving notice in Form Nos.II and III and kept the seized rice in safe custody of accused no.1 till further orders. The complainant thereafter on 17.09.2012 sent a sample of rice to the Food Analyst, Regional Public Health Laboratory, Nagpur.
5. The complainant received the analytical report of rice of Food Analyst, RPHL/NGP/FSSA/57/12, dated 24.09.2012. The said report reveals that the sample of rice does not conform Regulation No.18.104.22.168 of Chapter 2 of Food Safety and Standards (Food Products Standards & Food Additives) Regulation, 2011 and also violates Section 3 (zz) (ix) of the said Act.
6. The report was received on 16.10.2012. According to the complaint, the sample is unsafe under Section 3 (1) (zz) (ix) of the said Act. The necessary inquiry was made with the accused persons and thereafter the complainant submitted the proposal before the Designated Officer for sending the proposal to the Food Safety Commissioner for grant of permission to file the case before the Court as required by the Act along with copy of related papers. The complaint further states that the complainant received sanction order on 04.09.2013 from the Joint Commissioner (Food) H.Q. Food and Drug Administration, Mumbai to file the case before the Court through the Designated Officer. Accordingly, the complaint was filed.
“(zz) “unsafe food” means an article of food whose nature, substance or quality is so affected as to render it injurious to health.
(i) to (viii) …..
(ix) by the article having been infected or infested with worms, weevils or insects; or
(x) to (xii) …..”
6 apl61.14.odt Section 26 which falls under Chapter VI having title, “Special Responsibilities As To Food Safety” reads as under:
“26. Responsibilities of the food business operator.- (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control.
2. No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food-
(i) which is unsafe; or (ii) which is misbranded or sub-standard or contains extraneous matter; or (iii) for which a licence is required, except in
accordance with the conditions of the licence; or
(iv) which is for the time being prohibited by the Food Authority or the Central Government or the State Government in the interest of public health; or
(v) in contravention of any other provision of this Act or of any rule or regulation made thereunder. (3) No food business operator shall employ any person who is suffering from infectious, contagious or loathsome disease.
(4) No food business operator shall sell or offer for sale any article of food to any vendor unless he also gives a guarantee in writing in the form specified by regulations about the nature and quality of such article to the vendor:
Provided that a bill, cash memo, or invoice in respect of the sale of any article of food given by a food business operator to the vendor shall be deemed to be a guarantee under this section, even if a guarantee in the specified form is not included in the bill, cash memo or invoice.
(5) Where any food which is unsafe is part of a batch, lot or consignment of food of the same class or description, it shall be presumed that all the food in that batch, lot or consignment is also unsafe, unless following a detailed assessment within a specified time, it is found that there is no evidence that the rest of the batch, lot or consignment is unsafe:
Provided that any conformity of a food with specific provisions applicable to that food shall be without prejudice to the competent authorities taking appropriate measures to impose restrictions on that food being placed on the market or to require its withdrawal from the market for the reasons to be recorded in writing where such authorities suspect that, despite the conformity, the food is unsafe.”
Since Section 26 deals with responsibilities of the food business, it would be useful to refer to the definition of “Food Business Operator”. The said definition can be noticed in Section 3 (1) (o) of the Act, which reads thus:
“(o) “food business operator” in relation to food business means a person by whom the business is carried on or owned and is responsible for ensuring the compliance of this Act, rules and regulations made thereunder;”
Section 27 of the Act deals with the liability of manufacturers, packers, wholesalers, distributors and sellers.
8. Chapter IX of the Act deals with offence and penalties. Section 66 of Act, which falls under said chapter deals with the offence by companies and it reads as under:
“66. Offences by companies. –
1. Where an offence under this Act which has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that where a company has different establishments or branches or different units in any establishment or branch, the concerned Head or the person in-charge of such establishment, branch, unit nominated by the company as responsible for food safety shall be liable for contravention in respect of such establishment, branch or unit:
Provided further that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
2. Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purpose of this section- a. “company” means any body corporate and includes a firm or other association of individuals; and b. “director”, in relation to a firm, means a partner in the firm.”
9. To test the submission of the applicant that the present complaint against him is nothing but an abuse of process of law, it would be useful to have a glance towards the provisions of Section 10 of the Negotiable Instruments Act, Section 17 of the Prevention of Food Adulteration Act and Section 34 of the Drugs and Cosmetics Act.
This Court (Coram: V.M. Deshpande, J.) has already found that Section 141 (1) of Negotiable Instruments Act and Section 17 of the Prevention of Food Adulteration Act, 1954 are somewhat similar in nature. Section 34 of the Drugs and Cosmetics Act, 1940 which falls under chapter V of the said Act deals with offences by the company. Section 34 reads thus:
“34.Offences by companies:-
(1) Where as offence under this Act has been committed by a company, every person who at the time of the offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company, as sell as the company shall be deemed to be guilty of the offence and shall liable to be proceeded against and punished accordingly.
Provided that nothing contained in this sub- section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Not withstanding anything contained in sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligent on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation: For the purpose of this Section-
(a) “company” means a body corporate, and includes a firm or other association of individuals; and
(b) “director” in relation to a firm means a partner in the firm.”
10. Section 34 of the Drugs and Cosmetics Act and Section 66 of the Act are pari materia. The decision given by Hon’ble Division Bench of the Apex Court in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla; AIR 2005 SC 3512, was referred to the Larger Bench on certain questions. Question (b), which was posed to the Larger Bench is as under:
“(b) Whether a Director of a company would be deemed to be in charge of and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary.”
Ultimately, the Larger Bench gave its answer to question (b) posed in Reference, as under:
“(b) The answer to the question posed in sub-para
(b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.”
11. This Court (Coram: V.M.Deshpande, J.) has, vide judgment dated 01.09.2017 interpreted Section 34 of the Drugs and Cosmetics Act in Criminal Application No.3684/2009, Shri Ramprakash Gulati s/o A.N. Gulati and anr. .Vs. State of Maharashtra, at the instance of Wazir Mohammad, Drugs Inspector, Food and Drugs Administration and concurred with the view taken by this Court in Ramprakash Gulati & anr. Vs. State at the instance of S.b. Ghotkar, 2010 ALL MR (Cri) 493.
12. In the backdrop of aforesaid law, now let us examine what are the pleadings made in the complaint vis-a-vis the present applicant. On a closer scrutiny of the complaint, the only allegations which were found against the present applicant are in paragraph 2 of the complaint, which is reproduced as under:
“2) That the accused no.1 is a Superintendent and Vendor of Gurukrupa Adiwasi Prathmik & Madhyamik Ashramshala, Thana, Tq. Amgaon, Dist. Gondia and using the said rice for preparation of meal for students. The accused no.2 is Secretary of Gurukrupa Adiwasi Prathmik and Madhyamik Ashramshala, Thana, Tq. Amgaon, Dist. Gondia. The accused no.4 is the then Storage Superintendent of Maharashtra State Warehousing Corporation, Amgaon, Dist. Gondia and accused no.5 is the then Warehouse Manager of Central Warehousing Corporation, Gondia.”
13. The complaint thus only states that present applicant is Secretary of the accused no.3. Besides that there is no iota of any pleadings to the effect that at any point of time the present applicant was entrusted with or was incharge of the day-to-day affairs of the accused no.3.
Reading of Section 34 (2) of the Act states that where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purpose of this section- a. “company” means any body corporate and includes a firm or other association of individuals; and b. “director”, in relation to a firm, means a partner in the firm.”
Thus, Section 66 (2) of the Act clearly mandates that if the director, manager, secretary or any other officer of the company is shown to be an accused in the complaint, then it is obligatory on the part of the complainant to show that the offence is committed with the consent or connivance. Merely because that a person is director, manager or secretary is not self sufficient to establish that offence is committed with his consent or connivance in the absence of basic pleading in that behalf. In absence of such, merely because the complaint is filed against the applicant who is Secretary, in my view he is not required to face the gamut of the prosecution at the behest of the complainant.
11. There are no accusations in the entire complaint against the present applicant that the applicant is responsible for the food product not in conformity with the standards. In absence of such accusation, it is really difficult to hold that the Secretary can be prosecuted by taking aid of Section 66 (2) of the Act.
12. In that view of the matter, following order is passed.
(i) Criminal Application (APL) No.61/2014 is allowed.
(ii) Regular Criminal Case No.129/2013, pending on the file of Judicial Magistrate First Class, Amgaon, is quashed and set aside against the present applicant to his extent only and consequently it is dismissed against him.
(iii) Insofar as the other accused persons are concerned, the same shall be disposed of by the learned Magistrate as expeditiously as possible.
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.19752 of 2014 Arising Out of P.S.Case No. -10 Year- 2011 Thana - GOVERNMENT OFFICIAL COMP. District- PURNIA ===========================================================
Mukesh Kumar Agrawal, son of Sri Raghubir Prasad Agrawal, Prop. -M/s Shri Shyam Agro Oil Mills, Marketing Chowk, N.H.-31, P.S. Gulab Bagh, Distrit- Purnea.
…. …. Petitioner
Versus The State Of Bihar
Opposite Party with =========================================================== Criminal Miscellaneous No. 19787 of 2014 Arising Out of P.S.Case No. -9 Year- 2011 Thana -PURNIA COMPLAINT CASE District-
PURNIA =========================================================Mukesh Kumar Agrawal S/o Sri Raghubir Prasad Agrawal Prop. M/s Shri Shyam Agro Oil Mills, Marketing Chowk, N.H. 31, P.S. Gulab Bagh, District Purnea.
…. …. Petitioner Versus The State of Bihar …. …. Opposite Party =========================================================== Appearance :
(In Cr.Misc. No.19752 of 2014) For the Petitioner : Mr. Prakash Chandra Agrawal, Advocate For the Opposite Party : Mr. Rajendra Singh Shastri Ji, APP (In Cr.Misc. No.19787 of 2014) For the Petitioner : Mr. Prakash Chandra Agrawal, Advocate For the Opposite Party : Mr. Rajendra Singh Shastri Ji, APP ===========================================================
CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR CAV ORDERS Date: 25 -08-2017
These two applications under Section 482 of the Cr.P.C. have been filed for quashing the orders dated 03.01.2011 passed in Case No.B-III-10/2011 and case no.B-III-09/2011 by CJM, Purnea whereunder the learned court below finding prima-facie case for the offence under Section 16(1)A of Prevention of Food Adulteration Act, Patna High Court Cr.Misc. No.19752 of 2014 dt.25-08-2017 1955 took cognizance and summoned the petitioner.
2. All together eleven samples of edible oils were collected from the business premises of the petitioner for examination by Public Analyst about the purity in the edible oil. In all the cases the petitioner has raised the issue of violation of mandatory provisions as contained in Section 13(2) of the Prevention of Food Adulteration Act (hereinafter to be referred to as „the Act‟) which reads as follows:-
“13. Report of Public Analyst-
(2) On receipt of the report of the result of the 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 14-A, 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 maybe, desired, either or both of them may make an application to the Court within a period of ten 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.”
3. It has been submitted that the public analyst collected eleven samples of edible oil and sent for analysis and after result of report, eleven cases were lodged against the petitioner. It has been submitted that the life of edible oil is one year and after one year sending the second sample for analysis in terms of Clause (2) of Section 13 of the Act by the Central Food Laboratory is useless and amounts to denial of fair procedure prescribed under Clause (2) ofSection 13 of the Act, as stated above in all the eleven cases the edible Patna High Court Cr.Misc. No.19752 of 2014 dt.25-08-2017 oil‟ sample was collected from business premises of the petitioner on 04.12.2010. The report of the analysis was received on 08.01.2011. In terms of Section 13 (2) of the Act the authorities undr the Act was required to send the second sample of the edible oils for the analysis to the Central Food Laboratory if the person from whose premise the sample was collected and adverse analysis report was received and communicated expresses desire and makes an application to the court within ten days from the date of receipt report for getting the 2 nd sample of the article of Food kept by the Local (Health) authority analysed by the Central Food Laboratory. The avowed object of the Scheme under Section 13 (2) of the Act was to ensure that the sample of the alleged adulterated food on analysis or reanalysis established food adulteration. The mandatory requirement of Section 13 (2) of the Act was to provide one more opportunity to the person against whom there is adverse report in the first analysis to prove that the food item is not adulterated. If the second sample of food item is not sent within the reasonable time it may render the second analysis useless and frustrate the object of Section 13(2) of the Act.
4. The case of the petitioners is that despite the request of the petitioner in terms of Section 13(2) of the Act, the second sample was not sent for analysis by the authorities prescribed under the Act and, as such, the entire prosecution based on the basis of prosecution report not supported by the analysis of second sample is unsustainable Patna High Court Cr.Misc. No.19752 of 2014 dt.25-08-2017 and as such, the proceeding against the petitioners is an abuse of the process of law. The petitioner has asserted that the life of the sample (edible oil) which was sent for analysis by the public analyst is one year and the sample was collected on 04.12.2010 and till the date of filing of these quashing application, (i.e., till 28.04.2014) the second sample could not be analysed and, as such, the prosecution against the petitioner is liable to quashed on account of the non-compliance of the mandatory provision of Section 13(2) of the Act. The learned counsel has placed reliance on ruling reported in 1997 (1) PLJR 453 wherein a Bench of this Court relying upon the Judgment of the Apex Court reported in AIR 1991 suppl. (2) SCC 569 has held out that the order taking cognizance is bad and in the absence of second analysis report from the Central Food Laboratory in terms of Section 13(2), the prosecution is unsustainable. The learned counsel referred a judgment passed in Cr.Misc.No.18986 of 2008 to substantiate his argument that the order taking cognizance in the absence of report of the Central Food Laboratory in terms of Section 13 of the Act is unsustainable. The petitioner has challenged the cognizance order passed in all the eleven cases. Out of them prosecution of the petitioners in three cases has been quashed by one of the coordinate Bench of this Court as per order passed in Cr.Misc.No.20424, 20426 and 20639 all of the year 2014. The case of the petitioner is covered by the judgment of the Apex Court as mentioned above. If Section 13 (2) of the Act mandates Patna High Court Cr.Misc. No.19752 of 2014 dt.25-08-2017 sending of second sample for the analysis of the Central Food Laboratory on the protest of the aggrieved person, then no prosecution can be lodged in absence of taking recourse of sending the second sample collected by the Food Inspector by the analysis of the Central Food Laboratory. In the instant case the second sample was not sent within the time prescribed to obtain report of analysis by the Central Food Laboratory to justify the same till the date of filing of the case.
5. In similar cases the Apex Court has quashed the prosecution considering the mandate of the law in the case of Girish Bhai Dangra Bhai Sah vs. Cr. Misc. No. C.Jani & Anr. reported in (2009) 15 SCC 64.
6. I find substance in the submission of learned counsel for the petitioners. The order taking cognizance is not sustainable and as such the order dated 03.01.2011 passed in Complaint Case No.BIII- 10/2011 and B-III-9/2011 are quashed and both the criminal miscellaneous applications are allowed.
(Sanjay Kumar, J) B.Kr./-
IN THE COURT OF SH. ASHU GARG, Addl. Chief Metropolitan Magistrate - II (New Delhi), Patiala House Courts, New Delhi CC No. 1/13 (49207/16) Unique Case ID No. 02403R0025162013 Date of Institution: 02.01.2013 Date of reserving judgement: 25.08.2017 Date of pronouncement: 25.08.2017 In re: Food Safety Officer Department of Food Safety, Govt. of NCT of Delhi A-20, Lawrence Road Industrial Area, Delhi-110035 ... Complainant versus 1) Mohd. Kamil S/o. Sh. Shahbuddin M/s. Kamil Kiryana Store, 2166, Main Bazar, Turakman Gate, Delhi - 110006 R/o. 2203, Gali Kalyanpura, Turakman Gate, Delhi - 110006. 2) M/s. Mohan Gee Industries, 2084, Gurudwara Road, Karol Bagh, New Delhi-110005 3) Smt. Krishna Behl, W/o. Sh. P. D. Behl M/s. Mohan Gee Industries, 2084, Gurudwara Road, Karol Bagh, New Delhi-110005. 4) Sh. Vijay Behl S/o. Sh. P. D. Behl. M/s. Mohan Gee Industries, 2084, Gurudwara Road, Karol Bagh, New Delhi-110005 R/o. B-3/355, Paschim Vihar, Delhi - 110063. 5) Sh. Roopak Behl S/o. Sh. P. D. Behl M/s. Mohan Gee Industries, 2084, Gurudwara Road, Karol Bagh, New Delhi-110005 R/o. B-3/355, Paschim Vihar, Delhi - 110063. 6) Sh. Deepak Behl S/o. Sh. P. D. Behl M/s. Mohan Gee Industries, 2084, Gurudwara Road, Karol Bagh, New Delhi-110005 R/o. B-3/355, Paschim Vihar, Delhi - 110063. 7) Sh. Sandeep Behl S/o. Sh. P. D. Behl M/s. Mohan Gee Industries, 2084, Gurudwara Road, Karol Bagh, New Delhi-110005 R/o. B-3/355, Paschim Vihar, Delhi - 110063. ... Accused Persons JUDGMENT:
1. The present is a complaint filed under section 26/59 of the Food Safety and Standards Act, 2006 (FSS Act), alleging that the accused persons have violated the provisions of the FSS Act and Rules / Regulations thereunder. The accused no.1 (since discharged) is stated to be the Food Business Operator (FBO)-cum-proprietor of M/s. Kamil Kirayana Store, from where the food article, that is, ‘ghee’ was lifted for sampling. Accused no.2 Firm is stated to be the packer of the food article from whom it was purchased by accused no.1. Accused no.3 (since expired), accused no.4, 5, 6 and 7 are stated to be the partners of accused no.2 firm in charge of and responsible to the firm for its affairs.
2. As per the complaint, on 10.01.2012, the food safety officials consisting of Food Safety Officer (FSO) Satish Kumar Gupta and Field Assistant (FA) Brahamanand under the orders of the Designated Officer (D.O) Sh. S. K. Nagpal reached along with their staff at the premises of M/s. Kamil Kirayana Store at 2166, Main Bazar, Turkman Gate, Delhi- 110006, where the accused no.14 was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FSO disclosed his identity and expressed his intention to purchase a sample of ghee from the FBO, as lying in sealed tins of 500 ml each bearing identical label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the FSS Act and Rules / Regulations. It was divided in four parts and each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VA, panchnama, etc. The price of sample was paid to the FBO. Thereafter, one counterpart of the sample was sent to the Food Analyst (FA) in intact condition and the other three counterparts were deposited with the D.O, as no request was made to send a counterpart to the NABL Accredited Lab. Vide report dated 20.01.2012, the FA found the sample to be substandard on the ground that the BR exceeded the prescribed maximum limit and the RM value was less than the prescribed minimum limit. Upon receipt of report, a copy of the same was sent to the FBO and the packers for giving them an opportunity to prefer an appeal against the FA report by getting the other counterpart analysed through the Referral Food Laboratory (RFL) under section 41(4) of FSS Act. The packers preferred an appeal and the sample was analysed by the RFL. Vide certificate dated 10.04.2012, the RFL found the sample to be unsafe under section 3(1)(zz)
(ii) of FSS Act as well as substandard as per section 3(1)(zx) of FSS Act read with the FSS(Food Products Standards and Food Additives) Regulations, 2011, on the ground that the sample was not free from rancid odour and the test for rancidity was positive. In the meanwhile, investigation was carried out and the packer accused no.2 was found to be a partnership firm, of which accused no. 3 to 7 were found to be its partners. After completion of investigation, sanction under section 30 of the FSS Act was obtained from the Commissioner of Food Safety. The complaint was then filed in the court on 02.01.2013 alleging violations of section 26(2)(i) and 26(2)(ii) of FSS Act read with Section 3(1)(zz)(ii)and section 3(1)(zx) of FSS Act, as punishable section 51/59 of FSS Act.
3. 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 02.01.2013.
4. Upon appearance, an application under section 294 CrPC read with Section 26(4) of FSS Act was filed on behalf of accused no.1. The said application was allowed and accused no.1 was ordered to be discharged vide order dated 31.07.2014. In the meanwhile, accused no.3 expired and proceedings against her stood abated, as observed in order dated 31.07.2015.
5. Based on the report of the RFL, notice of accusation under section 251 CrPC were framed against the remaining accused persons on 19.03.2016 for commission of the offence punishable under section 51/59 of FSS Act, being violation of section 3(1)(zx) and 3(1)(zz)(ii) of FSS Act, to which they pleaded not guilty and claimed trial.
6. At the trial, prosecution examined only one witness in support of its case. PW-1 Sh. Satish Kumar Gupta was the then FSO who had visited the spot along with FA Brahamanand as per the order of the D.O Sh. S. K. Nagpal for sample proceedings. He deposed about the proceedings conducted by them on 10.01.2012 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of four sealed tins of 500 ml each of ghee bearing identical label declaration, dividing it in four parts, separately sealing and marking the samples, and obtaining signatures of FBO and witnesses. He also proved the necessary documents including the FBO receipt Ex. PW-1/A, Notices Ex. PW-1/B and Ex. PW-1/B1, Panchnama Ex. PW-1/C, Raid report Ex. PW-1/D, FA Receipt Ex. PW-1/E and DO receipt Ex. PW-1/F. FA report Ex. PW-1/G was received and a copy thereof was sent to the accused persons by the D.O vide letter Ex. PW-1/H. Appeal Ex. PW-1/I was preferred and a sample was sent to the RFL which gave report Ex. PW-1/J. Investigation was conducted during which letter Ex. PW-1/K was sent to the accused no.1 FBO, letters Ex. PW-1/L and Ex. PW-1/L1 were sent to the VAT officers, letters Ex. PW-1/M and Ex. PW-1/M1 were sent to the supplier accused no.2 which was supplied vide letter Ex. PW1/M2. After completion of investigation, sanction Ex. PW-1/N was taken from the Commissioner of Food Safety and the complaint Ex. PW-1/O was filed in the court. The witness was cross examined only to a very limited extent during which he could not tell if rancidity was an advanced stage of deterioration or if it developed due to natural causes.
7. Subsequently, the accused persons facing the trial stated that the spot sample proceedings did not pertain to them as they were not present at the spot and therefore, there was no need to examine other witnesses. Upon this, Ld. SPP also submitted that the other witnesses need not be examined as they pertained to spot sample proceedings pertaining to accused no.1 FBO who already stood discharged. The P.E was therefore closed.
8. Statements of the accused persons under section 313 CrPC were recorded on 25.08.2017 wherein they denied the allegations and pleaded innocence. They expressed ignorance about the sample proceedings as they were not present at the spot. They however questioned the FA report and stated that the deficiency noticed in the RFL certificate was on account of natural changes. They chose not to lead evidence in defence.
9. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused persons beyond reasonable doubt, on the ground that they have not been able to rebut the findings of the RFL certificate dated 10.04.2012 which had superseded the earlier FA report dated 20.01.2012. It is submitted that PW-1 has supported its case and the accused persons have not cross examined him as to the factual position of their being the packers and supplier of the food article.
10. On the other hand, Ld. Defence Counsel has submitted that there is huge variation in the reports as given by FA and RFL, which leads to conclusion that the two samples were not representative and therefore, conviction cannot be based solely on the basis of the RFL report.
11. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
12. It is to be understood that the notice framed against the accused persons is for violation of sections 3(1)(zx) and 3(1)(zz)(ii) of FSS Act on the basis of RFL report, which is the appellate authority over the FA report. As RFL is the appellate authority, once the appeal is preferred and certificate is given by the RFL, the earlier report of FA stands nullified and superseded by the RFL certificate. After such super session, the FA report cannot be gone into for any purpose.
13. In the case at hand, it is an admitted position, as is clear from both the reports of FA and RFL, the food article fell under Regulation no. 22.214.171.124 of FSS (Food Products Standards and Food Additives) Regulations, 2011. Specific standards have been prescribed for this food product under this provision.
14. Since the report of RFL supersedes the report of FA, only this report has to be considered and the report of FA has to be ignored. It would be seen that the RFL report has completely negated the results of FA on both the counts on which the FA had initially failed the sample. The BR Reading shown to be at 44 by the FA was found to be 42.2 by RFL (within minimum and maximum prescribed limits of 40 – 43), and the RM Value shown to be 27.65 by the FA was found to be 28.9 by RFL (more than minimum prescribed limit of 28). On the contrary, the sample was opined to be not unsafe and substandard by the RFL on the ground that the rancidity was positive and the sample was not free from rancid odour, the parameters on which the sample was passed by the FA earlier. As such, the matter has to be determined only on the basis of report of RFL.
15. In this regard, reliance can be placed on the judgement titled as Kanshi Nath v. State[2005(2) FAC 219], which pertained to the then existing Prevention of Food Adulteration Act (PFA Act) which stood repealed upon enactment of FSS Act. The said ruling has been constantly followed by the Hon’ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma[2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398]. The basic provisions in the PFA Act and FSS Act with respect to the comparison between the two reports of Public Analyst (PA) and Central Food Laboratory (CFL) under the PFA Act and between the reports of FA and RFL under the FSS Act, remain similar. The law laid down in these judgements would show that if there are substantive variations in the two reports, it might mean that the sample was not representative.
16. The Hon’ble High Court of Delhi in Kashi Nath’s case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of ‘dhania powder’. Hon’ble Court considered the ratio in MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518] and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this variation.
17. Though the CFL report under PFA Act was final and conclusive as to the results therein, yet it could still be looked into to ascertain if the samples were representative or not. If the accused was able to show that the samples were not representative or otherwise that the food article might have undergone a change by the time it reached CFL which was beyond his control, he would have get benefit on that count. Similar rules shall apply to the reports of FA and RFL.
18. In the case at hand, the differences between the two reports of FA and RFL would show substantive variations in the two reports. There is vast difference in the BR reading and RM value by the two analysts. The entire incriminating matter on the basis of which proceedings were initiated against the accused persons, stood negated by RFL.
19. As far as the grounds on which the RFL failed the sample are concerned, it is important to understand that ghee as a food article is prone to natural variations. If quality or purity of such an article falls below the prescribed standards solely due to natural causes and beyond the control of human agency, then such article would not be termed as unsafe or substandard (reliance can be placed on section 48(2) of FSS Act). If the two reports are so considered showing test for rancidity, it can be said that either the food article was not of the same lot and thus truly representative, or otherwise the sample had undergone a natural change beyond the control of the accused persons. The RFL had examined the sample from 16.03.2012 to 10.04.2012. Thus, it was so analysed after about 03 months when it was lifted from the possession of the accused no.1 FBO. The nature of ghee as a food product is such that some changes are bound to happen if sample is kept for a long period. The effect of presence of moisture, temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Such changes would be natural changes beyond human control. Reliance can be placed on the judgements titled as National Diary Development Board v. State of Haryana [1997(I) PFA Cases 95] and Nebh Raj v. State [Crl. Appeal No. 113/1975, Supreme Court of India, dated 24.10.1980]. In the present case, such development of rancidity cannot be ruled out after 03 months of lifting of the sample. Thus, there is possibility that such changes were natural changes. The burden would be on prosecution to rule out possibility of such natural changes before the accused persons can be convicted, particularly in view of such substantive variations in the two reports. The only conclusion would be that either the sample was not truly representative or otherwise it underwent a natural change during the intervening period which was beyond human control. In any case, the accused persons would get a benefit of doubt.
20. Thus, the material on record is not sufficient to show that the food article was unsafe or substandard at the time it was being sold. The accused persons are entitled to be given benefit of doubt on this ground.
21. Having said so, the accused no.2, 4, 5, 6 and 7 are acquitted of the charges. The bail bonds of accused no.4, 5, 6 and 7 shall remain in force for the next six months in terms of section 437-A. CrPC. Accused no.1 has already been discharged and accused no.3 has already expired.
22. File be consigned to record room.
Announced in the open court this 25th day of August 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code DL0355
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Criminal Misc. Case No. 3351 of 2010 (U/s 482 Cr.P.C.) 1. Shri Milan Anandan son of Shri A.K.Anandan,resident of House No. 384 Shalimar, Apartment, Prag Narain Road, Lucknow. P.S. Kotwali Hazratganj, Lucknow. 2. Shri Deepak Pandey son of Shri Murlidhar Pandey, Store Incharge, I.T.C. Chaupal Sagar Haripur, P.S. Kotwali Nagar, District Gonda. 3. I.T.C. Limited, an existing Company as defined under the Companies Act, 1956 having its AGRI Business Division at 31 Sarojini Devi Road, Secunderabad 500 003 through its Constituted Attorney. ........Petitioners Vs. 1. State of U.P. through its Principal Secretary, Home,Uttar Pradesh Government, Lucknow. 2. Food Inspector, District Gonda. ...Opposite parties XXX Hon'ble Anil Kumar Srivastava-II,J.
1. Heard Shri Navin Sinha, learned Senior Advocate appearing for the petitioners, Shri Shiv Nath Tilhari, learned Additional Government Advocate
2. Instant petition under section 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings of Complaint Case No. 946 of 2009, State Vs. M/s Daily Food Products and others under sections 7 and 16 of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the ”Act’) pending in the court of Additional Chief Judicial Magistrate-1st, Gonda.
3. According to the prosecution, on 4.2.2009 at about 2.00 p.m. Food Inspector, Gonda conducted a raid at I.T.C. Chaupal Sagar Store and inspected the said store in presence of the Store Incharge, Deepak Pandey, who informed that Shri A.K. Anandan is the nominee of I.T.C. Chaupal Sagar, Haripur.
4. During inspection, on suspicion, three packets of Suji which was of Daily Brand Batch No.B1 PKD Jan 2009, was purchased for an amount of Rs. 36/-. Notice Form No. VI. in four copies were received by the Store Incharge. Receipt no. UP06-1/17828 dated 4.2.2009 was received in lieu of payment. Three packets of Suji were sealed. Signatures of seller were obtained. One sample was sent to the Public Analyst, Uttar Pradesh Lucknow by courier alongwith copy of seal, wherein a report was received that according to Rule 42(ZZZ) (17) of the Prevention of Foods Adulteration Rules, 1955 (hereinafter referred to as the ”Rules’) on the label of the sample green symbol for vegetarian food is not declared. Remaining two sealed packets were deposited in the office of Health Officer, Gonda in accordance with Rules.
5. On receipt of report of Public Analyst, the aforesaid complaint case was filed wherein learned Magistrate has taken cognizance and issued summons to the accused.
6. Learned counsel for the petitioners submits that the petitioners are only vendors, who purchased and sold the items in the state as have been received by them. It is further submitted that warranty as required under section 14 of the Act was given. Item was sold after receipt of the warranty. It is further submitted that name, address and particulars of the person from whom the articles were purchased, was informed to the Food Inspector.
7. Learned counsel further submits that the article in question was Suji wherein the only charge against the petitioners is that the green label was not shown, which indicates that it is a vegetable food, which is required under Rule 42 (ZZZ) (17) of the Rules. It is submitted that under section 19 of the Act, the petitioners could not be held liable for commission of any offence because the warranty in the prescribed Form was obtained and the article of food in their possession, was properly stored and the same was being sealed in the same state as was purchased by them.
8. Learned counsel for the petitioners has placed reliance upon a judgment of Single Judge of Patna High Court rendered in Criminal Misc. No. 43942 of 2007, Md. Izhar Vs. State of Bihar, decided on 15.1.2009, wherein it was held that “section 2 (ix) (k) relates to the manufacturer of his statutory duties to affix the label and not on the petitioner”.
9. Learned counsel further placed reliance upon Anil Kumar Vs. State of Punjab and another, 2010 (1) FAC 378, wherein reliance has been placed upon a judgment of Hon’ble the Apex Court in P. Unnikrishnan Vs. Food Inspector, Palghat Municipality, Kerala State, 1996 (2) Prevention of Food Adulteration Cases 25, wherein it was held that:-
“If the article of food is purchased from the manufacturer and was sold to the Food Inspector in the same form in the same condition, the petitioner cannot be held liable for the violation of any Act or Rules. It was further held that the petitioner is neither the manufacturer and to affix the label is the duty of the manufacturer and in the absence of allegation that the label was tampered with, no offence can be made out against the petitioner.
Reliance is also placed upon P. Unnikrishnan (supra) Vs. Food Inspector, Palghat Municipality, Palgaht, Keral State, AIR 1995 S.C. 1983, wherein it was held in para 4 that:-
“4. In the instant case there is no material to show that the firm namely M/s Tajus Productions had any licence. However, taking into consideration Section 19(2) along with Rule 12A what is necessary for the accused to show is that he has purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. In the instant case admittedly there was a bill Ex. D1 which contained the warranty further it is also the admitted case that the tin purchased from the alleged manufacturer was sold to PW3, the Food Inspector, Palghat in the same form and in the same condition. Therefore, the requirements of Section 19(2) read with Rule 12A are satisfied in the instant case for the purpose of the defence taken by the accused.”
10. It is further submitted that the warranty as required under Rule 12A of the Rules was given by the manufacturer to the petitioners which was shown to the Food Inspector.
11. Learned AGA submits that section 7 (ii) of the Act provides that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any misbranded food. It is further submitted that the sample was not containing the green mark as was required under Rule 42 (ZZZ) (17) of the Rules. It is further submitted that section 19 (2) of the Act is a provision, which provides the defences which may or may not be taken by the accused in a prosecution. It is further submitted that section 19 (2) (3) of the Act is such which are mixed question of facts wherein burden lies upon the vendor to prove the necessary conditions as required under the provisions. Hence, this Court in a petition under section 482 Cr.P.C. cannot deal with the question of facts. Accordingly, petition is liable to be dismissed. It is further submitted that the warranty was not in accordance with provisions of Section 14 of the Act and Rule 12A of the Rules.
Section 7 (ii) of the Act reads as under:-
“No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-
(ii) any misbranded food.”
Violation of this provision is punishable under section 16 of the Act. Admittedly, a sample of Suji was taken from the store of the petitioners.
“14. Manufacturers, distributors and dealers to give warranty.- No manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor;
14A. Vendor to disclose the name, etc., of the person from whom the article of food was purchased.- Every vendor of an article of food shall, if so required, disclose to the food inspector the name, address and other particulars of the person from whom he purchased the article of food.”
Section 19 (2) and (3) reads as under:-
“(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves.-
(a) that he purchased the article of food-
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
(3) Any person by whom a warranty as is referred to [in section 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence.”
Rule 42(ZZZ) (17) of the Rules reads as under:-
“42 (ZZZ) (17) Every package of Vegetarian Food shall bear the following symbol in green colour on the principal display panel just close in proximity to name or brand name of the Food, namely.-“
Section 2 (ix) (k) reads as under:-
(ix) “misbranded”- an article of food shall be deemed to be misbranded-
(k) if it is not labeled in accordance with the requirements of this Act or rules made thereunder;”
Rule 32 of the Rules provides that every prepackaged food should carry a label.
12. Inspection was conducted by the Food Inspector. In the inspection note, batch number is mentioned as B/No.B-1. According to the report of Public Analyst, in Form III only deficiency was to the extent that green vegetarian symbol was not printed. It was opined that according to PFA Rule 42 (ZZZ) (17) on the label of the sample green symbol for vegetarian food is not declared.
13. Section 14 of the Act provides that no manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor.
14. Learned AGA has submitted that burden lies upon the petitioners to prove the necessary ingredients for taking the benefit of section 19 of the Act. It is further submitted that it is mixed question of facts which could not be looked into by this Court in proceedings under section 482 Cr.P.C.
15. Scope of section 482 Cr.P.C. is well defined by Hon’ble the Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335.
16. In Sonu Gupta versus Deepak Gupta (2015) Vol.3 SCC 424, it was held by the Hon’ble Apex Court that as under:-
“At the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is required only at a later stage and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. Even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.” (Para 9).
17. In M/s Pepsi Food Ltd and another Vs. Special Judicial Magistrate and others (1998) 5 SCC 749, Hon’ble the Apex court in para 22 has held as under:
“22. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”
18. In Mehmood Ul Rehman Vs. Khazir Mohammad Tunda and others (2015) 12 SCC 420, Hon’ble Apex Court has held in Paras 22 and 23 as under:-
“22. The steps taken by the magistrate under section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at the stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one’s dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.
23. Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Sections 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 CrPC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. The question is not about veracity of the allegations, but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate.”
19. Section 19 (2) of the Act is an exception to the Penal provisions wherein it was provided that if the vendor proves that he purchased the article of food from any manufacturer, distributor or dealer, with a written warranty in the prescribed form. Such protection is given to the vendor in order to protect him from unnecessary facing the criminal trial. Warranty was shown to the Food Inspector.
Section 2 (ix) of the Act which describes misbranding, could be applicable only if the complaint does not make out any allegations to bring the absence of the LOGO with any of the clause of section 2(ix) (a) to (j).
In so far as clause (a) is concerned, it relates to the manufacturer of his statutory duties to affix the label and not on the petitioners. Petitioners are not the manufacturer of the item, hence, they would be entitled for the benefit of section 19 (2) of the Act.
20. Learned AGA has placed reliance upon Murlidhar Shyamlal Vs. State of Assam AIR 1996 AIR (SC) 1429, wherein Hon’ble the Apex Court has held that in view of the above warranty as envisaged under Form VI-A, there must be special mention therein by the dealer or distributor or manufacturer, that the article of food sold was in the same nature and quality of the article of food, as the case may be.
In the present case also the warranty as mentioned in the tax invoice was strictly in compliance with the Form VI-A.
21. Learned AGA has also placed reliance upon State of Punjab Vs. Devinder Kumar, 1983 (2) SCC 384 wherein it was held in para 8 as under:-
“8. Before concluding we should observe that the High Court committed a serious error in these cases in quashing the criminal proceedings in different Magistrates’ Courts at a premature stage in exercise of its extraordinary jurisdiction under Section 482, Criminal Procedure Code. These are not cases where it can be said that there is no legal evidence at all in support of the prosecution. The prosecution has still to lead its evidence. It is neither expedient nor possible to arrive at a conclusion at this stage on the guilt or innocence of the accused on the material before the court. While there is no doubt that the onus of proving the case is on the prosecution, it is equally clear that the prosecution should have sufficient opportunity to adduce all available evidence.”
In the present case, there is a legal lacuna on the part of the prosecution. There was a valid warranty in compliance of the provisions of section 12A of the Act, which was strictly in accordance with Form VI-A. Therefore, it cannot be said that the High Court cannot quash the proceedings wherein there is a clear case of misuse of process of law as has been held in Bhajanlal ”s case (Supra).
22. Learned AGA has further placed reliance upon V.N. Kamdar and another Vs. Municipal Corporation Delhi, AIR 1973 SC 2246, wherein Hon’ble the Apex Court has held in para 7 that:-
“section 19 (3) of the Act only gives liberty to the person who gave the warranty to appear and give evidence and that by volunteering to appear and give evidence, he does not become an accused. The opportunity to appear and give evidence is to enable the person who gave the warranty to show that the vendor has not properly stored the article while in his possession or that he did not sell the article in the same state as he purchased it and thus to avoid a prosecution against him on the basis of a false warranty.”
Such is not the case in the present. The only fault found was non compliance of Rule 42 (ZZZ) (17) of the Rules, wherein green LOGO was not affixed. It was not a case that the vendor has not stored the article in the condition as was received by him or he did not sell the same in the condition he received.
23. Reliance has also been placed by the learned AGA upon M/s Bhagwan Das Jagdish Chander Vs. Delhi Administration and another, AIR 1975 SC 1309. The said case is not applicable to the facts of the present case because the manufacturer was also impleaded as an accused in this case.
24. Learned counsel for the petitioners submits that the learned Magistrate has not applied his mind before taking cognizance. It is further submitted that tax invoice was attached with the complaint, wherein warranty was also mentioned. In view of the provisions of section 19 (2) and section 14 of the Act, learned Magistrate should have applied his mind before taking cognizance. Learned Magistrate should have applied his judicial mind before taking cognizance in the matter.
25. Per contra, learned AGA submits that learned Magistrate is not required to pass a detailed order at the time of taking the cognizance.
26. In Bhajan Lal’s case (supra), Hon’ble the Apex Court has specifically held that the extraordinary jurisdiction under section 482 Cr.P.C. can be invoked where there is a case of misuse of process of law. Application of mind by the Magistrate should be reflected from the cognizance order.
27. In a recent judgment delivered by Hon’ble the Apex Court in Abhijit Pawar vs. Hemant Madhukar Nimbalakar & another, (2017) 3 SCC, it has been held that:-
“The admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an inquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure(Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words that ”and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction’. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct inquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected.
Referring the case law in Vijay Dhanuka vs. Najima Mamtaj (2014) 14 SCC 638; it was held that :-
“11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process “in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.
12. The words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23.6.2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:
“False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.”
The use of the expression “shall” prima facie makes the inquiry or the investigation, as the case may be , by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression”shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.”
28. In Mehmood UI Rehman’s case (Supra), it was held in paras 20 and 22 as under :
“20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter. (emphasis supplied)
22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure or mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one’s dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.” Emphasis added. “
Hon’ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under:
“14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word “inquiry ” has been defined under Section 2(g) of the Code, the same reads as follows:
“2. (g) ”inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or court,”
It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.”
In Sonu Gupta’s case (supra) it was held by the Hon’ble Apex Court that :-
“At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.” (Para 8)
29. Summoning of an accused in a criminal matter is a serious matter where it is expected from the learned Magistrate to exercise his judicial conscience and mind at the time of passing an order for summoning of the accused. It could not be passed mechanically. Although it is true that specific reasons for summoning of the accused are not required to be mentioned but at the same time order must show that the learned Magistrate has applied his judicial mind in summoning the accused. It is more important in the cases where the accused are residents of beyond the jurisdiction of the learned Magistrate as has been held in Abhijit Pawar’case (Supra).
Stereophonic cognizance order should not be passed by the Magistrates. Although it is true that the Magistrates are not required to pass detailed reasoned orders at the time of taking cognizance, but at the same time, orders must reflect the application of judicial mind. Application of judicial mind can only be inferred from the attending circumstances of the case.
30. In the present case, there is a warranty as required under section 14 of the Act. Such warranty was also made part of the complaint at the time when the learned Magistrate was taking cognizance. It was incumbent upon him to have gone through the material collected at the stage of investigation. Summoning of an accused in a criminal case is a serious matter, which could be of serious consequences. Such orders cannot be passed mechanically.
31. Considering all the facts and circumstances of the case as discussed above, I am of the view that the petition deserves to be allowed and is accordingly allowed. Proceedings of Complaint Case No. 946 of 2009, State Vs. M/s Daily food Products and others under sections 7 and 16 of the Act pending in the court of Additional Chief Judicial Magistrate, 1st, Gonda are quashed so far as it relates to the petitioners.
Order Date: 14.7.2017