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1995 DIGILAW 15 (PAT)

Sudhir Kumar Chopra v. State Of Bihar

1995-01-10

SURINDER SARUP

body1995
Judgment Surinder Sarup, J. 1. The petition under Section 482 of the Code of Criminal Procedure has been filed for quashing the order taking cognizance dated 21st December, 1993 by the C. J. M. Ranchi in C III-320/93 under Sections 16(1), 9(1) of the Prevention of Food Adultration Act (hereinafter referred to as the Act) and for quashing the entire criminal proceedings against the petitioner, now pending in the court of Sri S. Kumar, S. D. J. M. Ranchi. 2. The facts as set out in the petition are that the Food Inspector, respondent No. 2 on 30th April, 1993 at about 2.30 p. m. took from the premises of Yuvraj Palace the sample of Haldi powder to have the|same analysed by the analyst for Ranchi. The case was registeredion 21st December, 1993 and cognizance of the case was taken by the C. J. M. Ranchi. 3. Before proceeding further in the case, it may be pointed out here that notice was accepted on behalf of the State in this case, but no counter affidavit has been filed. Today, Mr. P. D. Agarwal put in appearance at the time of hearing and stated that Mrs. Indirani Sen Choudhary is to appear in this case on behalf of the State and that she is ill. Therefore, adjournment may be given. That request was disallowed on the ground that there is panel of APPs in the office of the Government Advocate and when the case was fixed for hearing, the matter could have been entrusted to any APP. In this context, it may be mentioned that experience of this court has been that when the cases are called out, the State counsel hardly put in any appearance, even though they are sent for and time is wasted of the court for waiting them. This state of affairs have already been brought to the notice of the Government Advocate, but despite his assurance there is no improvement in the situation. After the learned counsel for the petitioner had submitted his argument in the case, Mr. Triveni Mishra, APP put in appearance and requested for adjournment on the ground of filing counter affidavit. Those two contradictory reasons by two different APPs for adjourning the case speak volumes of the way the office of the Government Advocate is treating the matter fixed by the court. Triveni Mishra, APP put in appearance and requested for adjournment on the ground of filing counter affidavit. Those two contradictory reasons by two different APPs for adjourning the case speak volumes of the way the office of the Government Advocate is treating the matter fixed by the court. Moreover when service was accepted on behalf of the State, the case was ordered to be fixed on 9th January, 1995, and a request for adjournment could have then been made to file counter affidavit and since no request was made as appear from the record, the State should have taken care to file counter affidavit knowing fully well that the case is fixed for hearing on a particular date. Therefore, I have poceeded to hear the case on merits without any assistance from the State counsel. 4. The first submission raised on behalf of the petitioner by this learned counsel is that the sample purported to have been taken by the Food Inspector, respondent No. 2 from the store of the hotel of the petitioner was not meant for sale rather the same was being utilised as an ingredient for preparation of food. It is further submitted that Haldi powder was not sold by the petitioner to the Food Inspector nor the Food Inspector purchased the same as he did not pay any price for the said sample. In support of his contention, he was relied upon the case of Municipal Corporation of Delhi v. Laxmi Narayan and others reported in AIR 1976 SC 621 . It has been laid down therein that storage or distribution of an adulterated article of food for the purpose other than for sale does not fall within the mischief of Section 16(1) (a) (i) of the Act. From the facts as stated in the petition which is duly supported by an affidavit, it is clear that there was no sale of the alleged adulterated article, within the meaning of the provisions of the Act. Therefore, the proceedings are vitiated. 5. It has next been submitted by the learned counsel for the petitioner that although the sample was taken on 30th April, 1993 and the case was registered on 2lst December, 1993, no report of the analyst has ever been sent to the petitioner as required under Section 13(2) of the Act and Rule 9(a) of the Rules made thereunder. 5. It has next been submitted by the learned counsel for the petitioner that although the sample was taken on 30th April, 1993 and the case was registered on 2lst December, 1993, no report of the analyst has ever been sent to the petitioner as required under Section 13(2) of the Act and Rule 9(a) of the Rules made thereunder. According to him, neither the report of the analyst was sent by hand nor by registered post to the petitioner as required by the aforesaid Rule. For this submission, he has relied upon the case of L. M. Batra v. The State of Bihar, reported in 1994(1) Eastern India Criminal Cases, 196 (Patna). It has been laid down therein that under the amended section of the Act, a valuable right given to the accused of receiving notice from the local health authorities giving a copy of the report of the public analyst and also telling him that he if so desired may get the sample analysed by the Central Food Laboratory by making an application to the Court. Noncompliance of this provisions vitiates the entire proceedings, In the said reported case 1984 Cr. L. J. 567 was also referred to for the said proposition. In the very same ruling it has been further held that requirement of Section 13(2) of the Act is mandatory and the accused has got a valuable right to get the sample analysed by the Central Lahoratory, as the report of the local health authorities is not sacrosanct, and may contain error. In view of this ruling, 1 iind force in the second submission of the learned counsel for the petitioner also. Since the report of the public analyst was not supplied to the petitioner, which is mandatory under the provisions of Section 13(2) of the Act, he has been deprived of his valuable righ to get the sample analysed by the Central Laboratory, which is another illegality in this case. 6. The third submission on behalf of the petitioner is that respondent No. 3. has written the word sanctioned underneath and has appended his signature on the prosecution report, the certified copy of which is Annexure-1 which is on the record. 6. The third submission on behalf of the petitioner is that respondent No. 3. has written the word sanctioned underneath and has appended his signature on the prosecution report, the certified copy of which is Annexure-1 which is on the record. According to the learned counsel, it was incumbent upon respondent No. 3 to satisfy himself from the report that the petitioner has committed the offence punishable under Section 16(1) (a) (i) of the Act and that respondent No. 3 has not applied his mind before granting sanction. For this submission, learned counsel has relied upon the case of L. M. Batra v. State of Bihar (supra), wherein it has been laid down that where the sanctioning authority merely writes sanction on the prosecution report without satisying himself from the report that an offence has been committed under Section 16 of the Act and also does not apply his mind before granting sanction, the said sanction for the prosecution is improper. There is force in this submission also of the learned counsel for the petitioner, which vitiates the prosecution of the petitioner. 7. The next submission of the learned counsel for the petitioner is that the petitioner is one of the Directors of J.N. Hotel (P) Ltd. and not the person incharge of the affairs of the hotel. Therefore, he is in no way responsible as the Company of which he is a Director ought to have been made party to the proceedings. Moreover in the prosecution report, it has no where been mentioned that the petitioner who is being named as accused is the person incharge of the affairs of the hotel. According to the petitioner, the alleged adulterated article was kept in the store of the hotel and was being utilised for preparation of food to be served to the guests and there is a regular Manager who is Incharge of the store. In other words, it was not the petitioner but the Manager who was in the custody of the alleged adulterated article. Therefore, no prosecution can be launched against the petitioner. This submission of the learned counsel for the petitioner also carries weight. 8. For the reasons recorded above, this petition must succeed. It is accordingly allowed. In other words, it was not the petitioner but the Manager who was in the custody of the alleged adulterated article. Therefore, no prosecution can be launched against the petitioner. This submission of the learned counsel for the petitioner also carries weight. 8. For the reasons recorded above, this petition must succeed. It is accordingly allowed. The order of the learned C. J. M. Rancni, dated 21st December, 1993, passed in C-1II-32-C/93, under Section 16(1) (a) (i) of the Act as well as the entire criminal proceedings against the petitioner, in the said case, pending in the court of Sri S. Kumar, S. D. J. M. Ranchi, are here by quashed.