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1991 DIGILAW 956 (ALL)

SRI SHARMA AYURVED MANDIR DATIA M P v. STATE OF U P

1991-07-29

N.L.GANGULY

body1991
N. L. GANGULY, J. This application under fsection 482, Cr. P. C. has been filed by Sri Sharma Ayurved Mandir, Datia, M. P. and four others who are partners of the said firm for quashing the criminal proceedings in Case No. 2512 of 1982-State v. Om Prakash and others pending in the Court of Judicial Magistrate (Economic Offences) Saharanpur and the summoning order dated 15-7-1983. 2. The Food Inspector inspected the shop of the Om Prakash and took sample of honey for analysis by the Public Analyst. At the time of taking sample of honey, the Food Inspector Sri K. K. Wasla had given his introduction to the accused Om Prakash and told him that he wanted to take sample of honey which is a food product. After the said notice was given to the shopkeeper Om Prakash, three sealed phails of 250 gtns honey was purchas ed by the Food Inspector, sealed and sent to the Public Analyst for analysis under the rules of Prevention of Food and Adulteration Act. The report from the Public Analyst was received on 18-3-1981 and the sample of honey was found to be adulterated, not in conformity with the prescribed standard. Since the sealed bottles of honey was obtained by Sri Om Prakash accused from M/s. Maheshwari Aushadhi Bhandar, Kakadganj, Saharanpur vide bill dated 18-12-1980, the proprietor of the said firm was also arrayed as accused in the case. A complaint for prosecution under Section 7/16 of the Prevention of Food and Adulteration Act was filed in the Court of Magistrate. The Food inspector submitted an application before the Court of Special Judicial Magistrate (Economic Offences, ) Saharanpur for summoning the Manager of Sri Sharma Ayurved Mandir Datia, Shivaji Road, Jhansi. The Court was pleased to issue uotice to Sri Sharma Ayurved Mandir and others for facing the trial. 3. A writ petition No. 14623 of 1986 was filed by the applicant Nos. 2 to 4 challenging the action of the Food Inspector taking the sample of Ayurvedic Drugs and also prayed for quashing the proceedings in criminal case under Section 7/16 of Prevention ol Food and Adulteration Act pending before the Judicial Magistrate (Economic Offences), Saharanpur. On the writ petition, the Division Bench of this Court was pleased to pass a stay order staying the further proceedings in the case pending before tbe Judicial Magistrate (Economic Offences), Saharanpur. On the writ petition, the Division Bench of this Court was pleased to pass a stay order staying the further proceedings in the case pending before tbe Judicial Magistrate (Economic Offences), Saharanpur. The said writ petition remained pending and on 25-4-1991 the Division Bench was pleased to dispose of the revision with observation:- "the proper remedy available to the petitioners is to file an application under Section 482, Cr. P. C. In view of this, the present writ petition is not maintainable. The learned counsel for the petitioners may file petition under Section 482, Cr. P. C. within a month from today. " The present application under Section 482 has been filed on 11-7-1991. It appears that the affidavit accompanying with the petition was got verified on 24th May, 1991 and was filed in July as stated. 4. The applicants have filed this application for quashing on the grounds, namely: " (i) That the applicants are licensee firm under the Drugs and Cosmetics Act engaged in the business of manufacturing of Aurvedic Drugs "sharmayu Madhu", sample of which was taken by the Food Inspector, is not a food product but an Aurvedic medicine. The Food Inspector has no authority in law to take sample of Aurvedic medicines in view of the provisions of Section 33-EEC of the Drugs and Cosmetic Act, 1940. Thus, it was submitted that the prosecution of the applicants under Section 7/16 of the Prevention of Food Adulteration Act is without jurisdiction and the complaint and the proceeding taken thereunder is nothing but abuse of the process of the Court. " 5. It is not disputed that honey is a Food product and is covered under the Prevention of Food Adulteration Act. The applicants in the application stated that natural honey is available from beehives is not conducive or recommended for use as Madhu. They referred to Aurvedic Texts of Nighantu Ratnakara and Sushruta Sanhita. It was further stated in the paragraph No. 12 that the extracted honey from the beehives is clinically processed and scientifically cleaned in the factory of the firm. Whereafter the Sharmayu Madhu product is prepared and manufactured. The emphasis of the learned counsel for the applicants is that "sharmayu Madhu" is an Ayurvedic medicine and not honey to attract the provision of the Prevention of Food Adulteration Act. Whereafter the Sharmayu Madhu product is prepared and manufactured. The emphasis of the learned counsel for the applicants is that "sharmayu Madhu" is an Ayurvedic medicine and not honey to attract the provision of the Prevention of Food Adulteration Act. The applicants submit that Sharmayu Madhu could not be taken for analysis by the Food Inspector for analysis of honey. 6. The other submission of the applicants is that all the applicants could not be summoned to face the trial unless it was shown and proved that the liability of the partners was of all the applicants. 7. Whether the sample of honey bearing the lable of sharmayu Madhu could be taken by the Food Inspector from the shop of accused Om Prakash. The mere addition of word sharmayu with madhu manufactured by Sri Sharma Ayurved Maadir would not be sufficient to exclude the same from being taken by the Food Inspector for analysis as honey. It is clear from the allegation of the annexures in the complaint that the Food Inspector had served written notice to the shopkeeper Om Prakash that he wanted to take sample of honey from him. Sample was taken and price for the sample of honey was paid to Om Prakash, shopkeeper. It is not material as stated on the lable of the item, a lable may be deceptive and the purchaser may consider the said item to be honey. When the Food Inspector was taking the sample, shopkeeper Om Prakash had not resisted or said a word that he has no money for sale. sharmayu Manhu displayed for sale was not honey, but an Ayurvedic product. This shows honey was asked by the Food Inspector and Sharmayu Madhu was given as Madhu. The sale is defined in the Prevention of Food and Adulteration Act in Section 2 (xiii) which include taking of sample for analysis on payment of the price within in the definition of sale. Thus, it cannot oe said at the stage of 482 petition when it has been clearly stated that the sample was taken after giving notice to the accused persons that the sample was being taken for analysis of the same as honey after payment of price. The averments in para 12 of the affidavit also show how sharmayu Madhu product is prepared and manufactured. The averments in para 12 of the affidavit also show how sharmayu Madhu product is prepared and manufactured. A perusal of para 12 shows that the natural honey, as is available from the beehives is not conducive or recommended for use as Madhu in the aforesaid two books Nighantu Ratnakara and Sushruta Sanhita ). The extracted honey from the beehives is clinically processed and scientifically cleaned in the factory of the firm. This clearly shows that sharmayu Madhu which the applicants now pleaded to be an Ayurvedic product continues to be natural honey scientifically cleaned and clinically processed. By clinically processing and scientifically cleaning the requisite ingredients and contents of pure uoaey, would not be lost, oince it is labelled as Sharmayu Madhu and sold as honey, it is required under the law to conform the requisite prescribed standard of ho. ney as given in the schedule of the Act. In a petition under Section 482, Cr P. C. it is not within the scope of enquiry to find out whether it was something else than honey as alleged in the affidavit. A bare perusal of the complaint shows that the sample of honey was taken by the Food Inspector which was found to be adulterated on analysis. This court would not enter into the exercise of looking into Aurvedic Text and authority to find out whether this honey could be exempted and taken out of the definition and standard prescribed for honey in the Act. This court while exercising powers under Section 482, Cr. P. C. is not required to enter into evidence and assess the same to find out whether the case is likely to end in conviction or not, as held in 1991 ACC 16 : 1991 J1c b7 (All) (Rakesh Kumar and others v. State of U. P.) The Supreme Court in 1990 ACC 39 (Mr. Dhan Laxmi v. R. Prasanna Kumar and others) observed: it is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. " The Supreme Court in another case reported in 1988 ACC 558-State of Bihar v, Murad Ali Khan and orders observed: "high Court to look into the allegations in the complaint aud nothing further while exercising powers under Section 482, Cr. The complaint has to be read as a whole. " The Supreme Court in another case reported in 1988 ACC 558-State of Bihar v, Murad Ali Khan and orders observed: "high Court to look into the allegations in the complaint aud nothing further while exercising powers under Section 482, Cr. P. C. " The learned counsel for the applicants submitted that the Food Inspector was not competent to take sample from the accused persons for want of notification in his name authorising him to take sample. He relied on 1985 E. F. R. 162; 1984 E. F. R. 223;1983 E. F. R. 90 is lay emphasis that without notification authorising the Food Inspector to take sample, the entire proceedings thereafter is illegal and without jurisdiction. There is no material on record nor the complainant Food Inspector had any opportunity to show the notification authorising him to take sample. The stage has not come, trial could not proceed at all on account of the filing of the writ petition by the accused persons in this Court. The proceedings were stayed till 1991 April and now the present petition 482, Cr. P. C. raising a question which cannot be enquired into in this proceedings. 8. The next submission of the learned counsel for the applicants is that the Food Inspector should be proceeded according to law and he had violated the procedure. The submission appears to be misconceived at this stage. It has not been shown that there was any violation in the procedure adopted by the Food Inspector at the time of taking of the sample. In fact in the complaint itself, it has been stated that the Food Inspector disclosed his identity to the shop-keeper before taking the sample and served with a written notice his intention to take sample of honey for analysis. 9. I have heard the learned counsel for the applicants as length and perused the complaint and other documents filed by him with his affidavit. One judgment of the Sessions Court affirming the discharge of accused persons by the Magistrate in revision by the Sessions Court of Sultanpur has been filed. It is said that the said judgment in revision has bacotne final as no appeal was filed against the said judgment before the High Court. One judgment of the Sessions Court affirming the discharge of accused persons by the Magistrate in revision by the Sessions Court of Sultanpur has been filed. It is said that the said judgment in revision has bacotne final as no appeal was filed against the said judgment before the High Court. The judgment of a Sessions Court of another district concerning the sample of honey sharmayu Madhu would not be a legal precedent to grant relief as claimed in the present. petition. The applicants appear to nave the only desire and intention of delaying the proceedings and do not want to face the trial before the Court. They succeeded in delaying the proceedings by filing a writ petition before this Court and got an interim stay order for the last 7/8 years and it was found that the writ petition was not maintainable. This is another attempt to stall the further proceedings in the criminal case by this 482 petition. After careful considerations of the facts and circumstances of the case, I am of the opinion that this is not a fit case for interference for quashing of the proceedings in the complaint case pending against the applicants. 10. The application is rejected summarily. Application dismissed. .