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2004 DIGILAW 764 (MP)

Anil Kulkarni v. State of M. P.

2004-09-13

SUBHASH SAMVATSAR

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JUDGMENT This revision is filed by the two accused persons challenging order dated 3.1.2001 passed by Chief Judicial Magistrate, Shivpuri in Criminal Case No. 1782/1999, whereby the application filed by the petitioners under section 245 of Code of Criminal Procedure (CrPC for short) has been rejected. The brief facts of the case are that the petitioner No.1 Anil Kulkarni is the Branch Manager of Hindustan Lever Limited, Food Division, Mumbai and petitioner No. 2 is Manufacturer i.e. Hindustan Lever Limited and respondent No.3 Santosh is the vendor. A complaint bearing No. 1782/99 is filed by the Food Inspector R.C. Mishra before the C.J.M. Shivpuri alleging that he has taken a sample of Kissan Orange Fruit Kick from the premises of respondent No.3 Santosh and got it analysed by the Public Analyst. The Public Analyst gave its report on 19.5.1999 holding that the sample was adulterated and thus accused have committed offence under section 7 (i) (iii) read with section 16 (1) (a) (i) of Prevention of Food Adulteration Act, 1954. According to the complaint, a bottle carried a label declaration of MRP Rs. 47/-, Pkd. April 1998 and Batch No. 80304-A3, 700 ml. The said sample was taken from a single bottle of 700 ml. and after opening the sealed bottle divided into three portions. One part of the said sample was sent by registered post A.D. to the Public Analyst of State of Madhya Pradesh at Bhopal. The Public Analyst in his report has noted that the original Company packed bottle was not sent and has opined that sample was adulterated. On the basis of this report, the prosecution was sanctioned against accused persons vide order dated 14.10.1999. It is further stated that on enquiry it was informed by the respondent No.3 Santosh that said bottle has been purchased by him from M/s. Manish Brothers situated at Shivpuri under Bill No. 23718 dated 8.4.1999. The complainant thereafter visited the shop of M/s. Manish Brothers and prepared a 'Panchnama' on 13.4.1999 and in the said 'Panchnama' it was recorded that M/s. Manish Brothers had sold bottles bearing No. MRP 49.50 and Pkd. January, 1999. It was also found that stock of April 1998 was nil and M/s. Manish Brothers is not made as a party in the criminal proceeding. The statements of complainant were recorded by C.J.M. and charges were framed against the present petitioners for committing the aforesaid offence. January, 1999. It was also found that stock of April 1998 was nil and M/s. Manish Brothers is not made as a party in the criminal proceeding. The statements of complainant were recorded by C.J.M. and charges were framed against the present petitioners for committing the aforesaid offence. Thereafter, an application under section 245, CrPC was filed for quashing the criminal proceedings. The first contention of learned counsel for the petitioners is that the complainant while taking the sample has opened the sealed bottle and thus he has violated the provisions of Rules 22 and 22-A of Prevention of Food Adulteration Rules, 1955 (the Rules, 1955 for short). According to learned counsel for the petitioners, the said rules are mandatory and any violation of the said rules will vitiate the entire prosecution case and therefore the criminal proceedings against the present petitioners be quashed. For this purpose, learned counsel for the petitioners has relied on the judgment of Allahabad High Court in case of State of U.P. v. Nanak Chand & another, 1974 FAC 413, wherein the Allahabad High Court has held that where the food is sold in a sealed container, the sealed containers as such must be sent to the Public Analyst for analysis of the contents of the containers, then there would be a clear violation of the mode prescribed for taking the sample for analysis and would result into acquittal. The another case relied upon by the learned counsel for the petitioners is in the case of Saeed Ahmad v. State of U.P., 1987 (2) FAC 163, whereby the Allahabad High Court has again held that violation of Rule 22-A of the Rules 1955 read with section 11-B of the Act, which provides that the food sold in sealed container should be sent to the Public Analyst without opening the seal and where the sample is not sent for analysis in the prescribed mode as required by Rule 22-A of the Rules, 1955, the person selling cannot be convicted on the basis of the analysis or the material which has been taken out of the sealed containers. The third case cited by learned counsel for the petitioners is in the case of J.L. Jindal v. State of Himachal Pradesh, 1989 (2) FAC 5. The third case cited by learned counsel for the petitioners is in the case of J.L. Jindal v. State of Himachal Pradesh, 1989 (2) FAC 5. In that case the High Court of Himachal Pradesh has taken the same view as taken by Allahabad High Court and held that the requirement of Rule 22-A is mandatory and the same should be taken in the sealed packed containers without opening it and should have sent the sealed containers to the Public Analyst. All these cases no doubt lay down that provisions of Rules 22 and 22-A of Rules 1955 are mandatory and whenever the sample is taken of a food article, the same should be sent to the Public Analyst in the sealed container without opening the same. These judgments, therefore, no doubt support the case of present petitioners. However, after perusing the aforesaid judgments, I find that the judgments of Hon'ble Supreme Court in case of Municipal Corporation. of Delhi v. M/s. Baboo Ram Shyam Sunder & others, 1982 (2) SCC 147 and in the case of State of Kerala & others v. Alasserry Mohammed & others, 1978 (2) SCC 386 have not been considered. In all these cases, the Hon'ble Apex Court has laid down that the provisions of Rules 22 and 22-A of the Rules 1955 are not mandatory and directory in nature. Therefore, in light of the aforesaid judgments, the present petitioners cannot be acquitted merely on the ground that the provisions of Rules 22 and 22-A of the Rules 1955 are not complied with. The Hon'ble Apex Court in case of State of Punjab v. Devinder Kumar & others, 1983 (2) SCC 384 has held that sample of food articles sold in sealed container can be taken after opening. The only requirement is that the quantity of the articles must be adequate for taking the sample. Thus, from these judgments of the Hon'ble Apex Court, it is clear that the provisions of Rules 22 and 22-A of the Rules, 1955 are not mandatory and therefore the criminal proceedings against the present petitioners cannot be quashed only on that ground. Similar view is taken by this Court in case of Prayelal v. State, 1993 FAJ 215 (MP) and Ramdeo v. State, 1993 FAJ 260 (MP). Similar view is taken by this Court in case of Prayelal v. State, 1993 FAJ 215 (MP) and Ramdeo v. State, 1993 FAJ 260 (MP). In view of these judgments, the proceedings against the present petitioners cannot be quashed only for non-compliance of Rules 22 and 22-A of the Rules, 1955. The next contention of learned counsel for the petitioners is that M/s. Manish Brothers is not joined as a party and present petitioners cannot be punished in absence of bills and vouchers showing that said goods were purchased by respondent No.3 from M/s. Manish Brothers. However, this question is a pure question of fact, which cannot be decided at the stage of framing of charge and can be determined only after recording of evidence. In the result, I do not find this case fit for quashing the proceedings against the present petitioners at this stage. Hence, revision fails and is dismissed.