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2003 DIGILAW 522 (PNJ)

Sat Pal Singh v. State of Haryana

2003-04-09

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - This is a petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing of the complaint (Annexure P2) and the proceedings arising therefrom under the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as the Act). 2. Briefly, the case of the complainant is that on 30.8.1983 the Food Inspector took the sample of Vanaspati No. 1 out of a sealed tin from the shop of Kali Ram son of Moti Ram, proprietor Kali Ram Rajinder Parshad, Anaj Mandi, Vanaspati Dealer, Sonepat. On the basis of the report of the Public Analyst (Annexure P1), the sample was found adulterated inasmuch as it gave melting point 27 degree against the minimum prescribed standards of 31 degree. The petitioner as Depot Manager, Ganesh Flour Mills, Co. Ltd., Vanaspati sales Depot, Kundli District Sonepat was also booked in this case. 3. The petitioner consequently filed the present petition inter alia on the grounds that before taking the sample, the content of the entire tin was not made homogeneous by melting; that there was violation of Rule 22-A of the Prevention of Food Adulteration Rules, 1955 (in short to be called the Rules); that no notice before filing of the complaint was given to the petitioner and as such, he had been deprived of his valuable right as envisaged under Section 13(2) of the Act; that the petitioner is facing the protracted trial for the last about ten years, resulting into miscarriage of justice and denial of inherent right of speedy trial enshrined under Article 21 of the Constitution of India. 4. The respondent/State has refuted the contention of the petitioner by filing a detailed reply, in which it has been submitted that the sample of Vanaspati was taken out of a sealed tin marked as No. 1 Vanaspati and as such there was no violation of Rule 22-A of the Rules. It is further contended that even otherwise, the report of the Public Analyst is final and per se admissible and if the petitioner had any grouse, he could get the sample re- analysed from Director Food Laboratory by moving an application before the Court, but since no such application was filed by the petitioner, he is not deprived of his right as envisaged under Section 13(2) of the Act. 5. 5. After hearing the learned counsel for both the sides and going through the record, I am of the view that there is no need of entering into detailed discussion in this case as the present petition deserves to be allowed mainly on two counts :- A) The contents of the tin were not made homogeneous by heating before the sample was taken. No doubt, in the complaint (Ex.P2), the Food Inspector has stated that the contents were properly mixed and made uniform. In Municipal Company, Amritsar v. Ram Parkash etc. (Criminal Misc. No. 1458 of 1971) decided on December 21, 1997, the view taken by this Court was that two precautions were absolutely necessary i.e. i) the contents of the entire tin should be heated so that they change from semi-solid to the liquid state and ii) the tins should be thoroughly stirred. 6. In the instant case, admittedly the first precaution was not taken as the ghee was not made homogenous before taking the sample, which was very essential requirement, as there is prescribed limit for melting point and if it is above the maximum prescribed limit, the sample would be termed as adulterated. The food stuff (i.e. ghee) thus has to be made homogenous in character by melting and stirring. The deficiency of the degree in the melting point found by the Public Analyst in this case could be due to the fact that the homogeneity was not ensured. B) The other lacuna in the present case is that admittedly no notice regarding filing of the complaint was given to the petitioner. Even in the complaint (Annexure P2), the first accused arraigned is Sh. Kali Ram son of Sh. Moti Ram, Proprietor Kali Ram Rajinder Parshad, Anajmandi, Vanaspati Dealer, Sonepat. The name of second accused is not mentioned. The words mentioned are "Deport Manager, Ganesh Flour Mills, Co. Ltd., Vanaspati sales Depot, G.T. Road, Kundli, District Sonepat. It was the bounded duty of the complainant to sent notice to the petitioner as contemplated under Section 13(2) of the Act which it failed to perform. 7. The argument of learned State Counsel that even if no notice was sent to the petitioner, he could file an application subsequently for re-analysis of the sample at any stage, is neither here nor there. 7. The argument of learned State Counsel that even if no notice was sent to the petitioner, he could file an application subsequently for re-analysis of the sample at any stage, is neither here nor there. A Division Bench of this Court in State of Punjab v. Ashok Kumar, 1992(1) FAC 20 has held that the notice must state which Court the accused should approach for sending the sample to the Central Food Laboratory and if it is not done, it would cause prejudice. The Division Bench in the aforesaid judgment relied upon the Full Bench decision of this Court rendered in State of Punjab v. Deboo, 1989(1) FAC 81, wherein it was held as follows : "But in case of non-observance of these essential requirements altogether prejudice is writ large on the face of it and it per se would be fatal to the prosecution". 8. In the present case the respondent has failed to comply with the provisions of Section 13(2) of the Act by not sending the notice as contemplated therein. The petitioner as thus been prejudiced. Even if the allegations in the complaint are taken to be true, for non-compliance of this provision, the present petitioner cannot be held guilty. 9. Keeping in view the above said basic lacunae in the present case, I feel that the contention of the present proceedings would be sheer abuse of the process of the Court. Resultantly, the present petition is allowed, quashing the impugned complaint (Annexure P1) and the consequential proceedings arising therefrom. Since the further proceedings were stayed by this Court at the time of admission of the petition, the intimation of this judgment be sent to the learned trial Court at once. Petition allowed.