Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1578 (RAJ)

Niranjan G. Khatri v. State of Rajasthan

2012-07-18

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant misc. petition has been filed against the order dated 6.4.2012 passed by the learned Sessions Judge, Pali in Criminal Revision No. 11/2011, whereby the order dated 22.10.2011 passed by the learned A.C.J.M., Sojat in Criminal Case No. 226/2001, has been affirmed and seeking quashing of the proceedings in Criminal Case No. 226/2001 pending against the petitioners for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as the Act'). 2. Succinctly stated the facts of the case are that a complaint was filed against the petitioners for the offence under Section 7/16 of the Act with the allegation that the Food Inspector-S.S. Rajpurohit collected a sample of AGMARK chilly powder Ramdeo Brand from the petitioner Rijhumal on 25.11.2000. Thereafter one of the sample of chilly powder was sent to the Public Analyst, from where the report was received that the sample was adulterated. After making the necessary enquiries regarding the retailer, the dealer and the stockist of the chilly powder as well as the manufacturer, a complaint was Laid against the petitioners in the Court of the learned A.C.J.M, Sojat for the offence under Section 7/16 of the Act. As per the batch and date mentioned on the packet of the chilly powder, the expiry period of the chilly powder was mentioned as best before 8 months from date of manufacture. The Public Analyst submitted a report regarding the chilly powder being adulterated on 4.1.2001. Thereafter, a complaint was filed in the Court after giving notice to the accused under Section 13(2) of the Act in the Court of the learned A.C.J.M., Sojat on 25.9.2001. An application under Section 13(2) of the Act was filed on behalf of the accused and accordingly, the learned A.C.J.M., Sojat by order dated 26.11.2002 directed that the second sample of the chilly powder be sent to the Central Food Laboratory for analysis. Ultimately, the sample was transmitted to the C.F.L. on 4.11.2003. The C.F.L. sent a communication to the Court on 30.5.2008 i.e. approximately 7 years after the sample was drawn intimating the Court to forward the memorandum and specimen impression of seal to it for comparison with the seals affixed on the samples. The memorandum and the specimen seal were forwarded to C.F.L. on 30.7.2008. The C.F.L. sent a communication to the Court on 30.5.2008 i.e. approximately 7 years after the sample was drawn intimating the Court to forward the memorandum and specimen impression of seal to it for comparison with the seals affixed on the samples. The memorandum and the specimen seal were forwarded to C.F.L. on 30.7.2008. Thereafter, again another set of the said documents was sent to the C.F.L. on 26.8.2011 and ultimately, the C.F.L. upon analysis of the second sample of the chilly powder by its report dated 3.9.2011 communicated that the sample of the chilly powder was adulterated, inasmuch as, the microscopic examination of the chilly powder revealed that rice structure was present in the chilly powder. The petitioners submitted an application in the trial Court under Section 13(2) of the Act claiming that the mandatory provisions of Section 13(2) of the Act had not been followed and therefore, the accused should be discharged. The application was rejected by the trial Court by order dated 22.10.2011 and the revision preferred by the petitioners was also rejected by the learned Sessions Judge, Pali by her order dated 6.4.2012. Hence, the instant misc. petition has been preferred by the petitioners seeking quashing of the orders impugned as well as all the proceedings pending against the petitioners in the trial Court. 3. Shri Sheetal Kumbhat learned counsel appearing for the petitioners submits that in this case, the chilly powder has been found to be conforming to all the standards Laid down in the Appendix A.05.05.01, which prescribes the standards for chilly powder. He submits that the only discrepancy, which has been found by the C.F.L. is regarding the presence of rice structures and such conclusion is based on a microscopic examination of the sample. Learned counsel submits that no such requirement is mentioned in the appendix that the chilly powder should be found not having rice structure upon microscopic examination. Learned counsel submits that the report disclosing that the sample was not conforming to the standards was given on the basis of a test, which was not even prescribed in the appendix. As such, it could not be used against the accused to prosecute them. He, therefore, submits that all the proceedings against the accused deserve to be quashed. Learned counsel submits that the report disclosing that the sample was not conforming to the standards was given on the basis of a test, which was not even prescribed in the appendix. As such, it could not be used against the accused to prosecute them. He, therefore, submits that all the proceedings against the accused deserve to be quashed. Learned counsel submits that since the sample of the chilly powder passes all the requisite tests and meets with the standards Lald down in the Appendix-A.05.05.01, the prosecution of the petitioners deserves to be quashed. Learned counsel has placed reliance on a decision of this Court in the case of Shri Mahesh & Anr. v. The State of Rajasthan rendered in S.B. Criminal Misc. Petition No. 427/1991 decided on 6.2.1992 and the decision of the Madhya Pradesh High Court in the case of Dhanraj Jaisrval v. State of M.P. reported in 2006 FAJ 281 . He further places reliance on the decision of this Court in the case of Municipal Council, Kota v. Harak Chand reported in 1989(1) RLR 831 and contends that since there is no column for microscopic examination in the standards prescribed for the chilly powder in the Appendix- A.05.05.01 of the Act, it cannot be held that the chilly powder, sample whereof has been taken in this case, offends the standards prescribed in the Appendix. He, therefore, urges that the proceedings against the petitioners in this case amount to an abuse of process of laws and are liable to be quashed. 4. Learned Public Prosecutor on the other hand supported the impugned orders. 5. For appreciating the arguments advanced on behalf of the parties, the report of Analyst submitted by the C.F.L. needs to be considered. The C.F.L. upon examination of the chilly powder gave following conclusions: "Analysis Report:: (i) Sample description :- Sample received in sealed polethene company pack (200 gms.) (ii) Physical appearance :- Off red chilly powder with oily nature. (iii) Label :- Ramdeo Brand Chilly Powder- Ahmedabad. Companies as per P.F.A. Rules, 1955. Note:- Memorandum received on 11.8.2008. Sr. No. Quality Characteristic Name of method of test used Results Prescribed standards as per (a) Item A-of Appendix B. (b) As per label declaration for proprietary foods. (c) As per provisions of the Act and Rules, for both above. (iii) Label :- Ramdeo Brand Chilly Powder- Ahmedabad. Companies as per P.F.A. Rules, 1955. Note:- Memorandum received on 11.8.2008. Sr. No. Quality Characteristic Name of method of test used Results Prescribed standards as per (a) Item A-of Appendix B. (b) As per label declaration for proprietary foods. (c) As per provisions of the Act and Rules, for both above. 1 Moisture D.G.H.S 5.95% Not more than 11.0% by wt 2 Total ash on dry basis Ash insoluble -do- 5.52% Not more than 8.0% by wt 3 In dil HCL dry basis -do- 0.61% Not more than 1.3% by wt 4 Crude fibre -do- 22.80% Not more than 30.0% by wt 5 Non Volatile Ether Extract on dry basis -do- 17.95% Not less than 12.0 by wt 6 Salmonella -do- Absent Absent in 25 gm. 7 Test of colour -do- No extraneous colour colour Chilly Structure + Free from extraneous colour. 8 Microscopic examination D. Pearson Rice structure detected Only chilly structure shall be present. Opinion :- I am of the opinion that the above sample contains Rice Structure and hence does not conform to the standards of Chillies and Capsicum (Red Chilly powder as per P.F.A. Rules 1955.") 6. The Item No. A.05.05.01 of the Appendix-B of the Act, which prescribes the standers for chilly powder, reads as under. "A.05.05.01-CHILLIES AND CAPSICUM (Lal Mirchi) Power means the powder obtained by grinding clean ripe fruits or pods of Capsicum annum L and Capsicum frutescens L. It shall be free from mould, living and dead insects, insect fragments, rodent contamination. The powder shall be dry, free from dirt, extraneous colouring matter, flavouring matter, mineral oil and other harmful substances. The chilli power may contain any edible vegetable oil to a maximum limit of 2.0 per cent by weight under a label declaration for the amount and nature of oil used. It shall conform to the following standards: (i) Moisture Not more than 11.0 per cent by weight (ii) Total ash on dry basis Not more than 8.0 per cent by weight (iii) Ash insoluble in dilute HCL on dry basis Note more than 1.3 per cent by weight (iv) Crude Fibra Not more than 30.0 per cent by weight (v) Non-volatile ether extract on dry basis Not less than 12.0 per cent by weight (vi) Salmonella Absent in 25 g" 7. A bare reading of the Item No.A.05.05.01 of the Appendix-B of the Act reveals that the requisite tests for the chilly powder do not prescribed any test like a microscopic examination. The standards also do not bar the presence of Rice Structure in the chilly powder. What is not permitted is mentioned in the opening paragraph in the table. Rice structures cannot be said to be dirt, extraneous colouring matter, flavouring matter or a harmful substance.8. This Court had the occasion to consider the effect of a report, wherein the Public Analyst on the basis of microscopic examination opined that the sample of coriander powder did not conform to the standards, this Court held that the standard of quality as prescribed in the Appendix does not provide for the microscopic test to be conducted upon the food article.9. In Harakchand's case, the sample of turmeric powder conformed with all the other standards of purity but on microscopic examination, the Public Analyst opined that the sample was adulterated with wheat starch. This Court held that as there was no column for microscopic examination in the Appendix of the Prevention of Food Adulteration Rules, the opinion/remark made by the Public Analyst about the conclusion from microscopic examination could not be taken into account for holding the turmeric powder to be adulterated.10. Similar view has been taken by the High Court of Madhya Pradesh in the case of Dhanraj Jaiszaal. The situation in the case at hand is similar. As per the report of the Director, C.F.L., the chilly powder meets the standards No. (i) to (vii) prescribed in the item No. A.05.05.01 of Appendix-B of the Act. Apart from these standards, the sample is not found to be infringing any of the conditions Laid down in the opening para of the Appendix No.A.05.05.01. Therefore, the conclusion arrived at by the Public Analyst that the sample of the chilly powder was adulterated since on microscopic examination, rice structure was detected, cannot be held to be a sound opinion for holding that the sample of chilly powder collected from the accused was in contravention with item No. A.05.05.01 of Appendix-B of the Act laying down the standards of purity.11. In view of the above discussion, this Court is of the opinion that the prosecution of the petitioners in this case cannot be said to be in accordance with law and amounts to an abuse of process of Court, and is, therefore, liable to be quashed.12. Resultantly, the misc. petition is allowed and it is directed that further proceedings in Criminal Case No. 226/2001 going on against the petitioners in the Court of learned Additional Chief Judicial Magistrate, Sojat are quashed.Petition allowed. *******