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2012 DIGILAW 304 (GAU)

Abir Baran Shyam v. State of Assam

2012-03-05

I.A.ANSARI

body2012
JUDGMENT LA. Ansari, J. 1. With the help of this application, made under Section 482 Cr PC, the petitioners, who are accused in CR Case No. 7719C/2007, pending in the Court of learned Sub-Divisional Magistrate (Judicial) No. 1, Guwahati, have put to challenge the order, dated 22.11.2007, whereby the learned Court below has directed issuance of process against the petitioners, as accused, for their prosecution under Section 16 of the Prevention of Food Adulteration Act, 1954 (in short, 'the PFA Act'. Heard Mr. B.M. Choudhury, Learned Counsel, for the petitioners, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 2. Before entering into the merit of the present criminal petition, it is necessary to point out that the law with regard to the quashing of criminal complaint or FIR is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapoor v. State of Punjab, AIR 1960 SC 866 , wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out; Gajendragadkar, J, speaking for the Court, however, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in complaint or the FIR, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the complaint or the FIR in order to decide whether the offence alleged is disclosed or not. In such cases, observed the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. In such cases, observed the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. From the case of R.P. Kapoor (supra), it becomes abundantly clear that when a mere look into the contents of a complaint or FIR shows that the contents thereof, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint or the FIR, as the case may be, shall be quashed. 3. As a corollary to what has been discussed above, is also clear that if the contents of a complaint or an FIR constitute offence, such a complaint or FIR cannot be quashed except where the complaint or the FIR is, otherwise also, not sustainable in law. 4. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Supreme Court, in the leading case of State of Haryana and Ors. v. Bhajanlal and others, reported in 1992 Supp (1) SCC 335, observed as follows :- 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised :-- (1) Where the allegations made in the First Information Report or the complaint; even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge (Emphasis is added). 5. In the case of Bhajanlal (supra), the Supreme Court gave a note of caution on the powers of quashing of criminal proceeding in the following words : 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. (Emphasis is added). 6. (Emphasis is added). 6. It is clear from a close reading of the principles laid down, in the case of R.P. Kapoor (supra) and Bhajanlal (supra), that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 7. While considering the present application, made under Section 482 Cr PC, it needs to be carefully noted that the case of the complainant can, in brief, be described thus : (i) On 12.09.2007, the complainant namely, Sri M. Bhuyan, a Food Inspector, collected a sample of Lehar Slice (Agro based food) Mango RTS Beverage, for analysis, from the vendor, Abir Baran Shyam of M/s. North-East Pure Drinks Marketing Pvt. Ltd., Guwahati, the sample, so taken, was divided into three parts and out of the said three parts, one part was sent to the Public Analyst for analysis. The Public Analyst reported as under : Sample description : Good Physical appearance : Pale yellow colour turbid liquid. The lid of the bottle is rusted and the outer side of the bottle is dirty. Label : Slice, Lehar Slice (250 ml) Mango RTS Beverage, Mfd by North East Pure Drinks Pvt. Ltd, Guwahati, FPO 10850, CDV.5305, Mfd on 09.06.07. Best before six months from manufacture. I further certify that I have/had caused to be analysed the aforementioned sample and declare the result of the analysis to be as follows : Total soluble solids : 14.36% Fruit content: Present Preservative : Benzoic Acid present Taste for cane sugar : Positive Artificial sweetening agent: Absent Added colour: Sunset yellow present. Best before six months from manufacture. I further certify that I have/had caused to be analysed the aforementioned sample and declare the result of the analysis to be as follows : Total soluble solids : 14.36% Fruit content: Present Preservative : Benzoic Acid present Taste for cane sugar : Positive Artificial sweetening agent: Absent Added colour: Sunset yellow present. (ii) The public analyst, however, opined that the said sample was adulterated within the meaning of Section 2(ia) of the PFA Act. The opinion of the Public Analyst reads as under: although the sample of Lehar Slice conforms to the quality standards as prescribed for the item in PF A Rules, it is found that the lid of the bottle is rusted and the outer side of the bottle is dirty, which are health hazards. Hence, it amounts to adulteration within the meaning of Section 2(ia)(e) of the PF A Act, 1954. (iii) Based on the opinion of the Public Analyst that the sample, in question, was found to be adulterated within the meaning of Section 2(ia) (e) of the PF A Act, the complainant filed a complaint seeking prosecution of the accused-petitioners, which led to the registration of the complaint case aforementioned and also issuance of process against the accused petitioners. 8. Contending that the Public Analyst's opinion, as reflected by his report, dated 19.09.2007, does not make out a case of adulteration of the article of food within the meaning of Section 2(ia)(e) of the PFA Act, the petitioners, with the help of the present application made under Section 482, Cr PC, have sought for, as indicated above, quashing of the entire prosecution launched against them including the order, dated 22.11.2007, aforementioned, whereby issuance of process, as indicated hereinbefore, was directed. 9. What, now, needs to be noted is that Section 13(5) of the PFA Act reads as under: (13)(5) Any document, purporting to be a report signed by a public analyst, unless it has been superseded under subsection (3), or any document, purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the Indian Penal Code : (45 of 1860). (Emphasis is added) 10. (Emphasis is added) 10. A bare reading of the contents of Section 13(5) makes it clear that what would be admissible in evidence, in terms of the provisions of Section 13(5) of the PF A Act, are the facts stated in his report by a Public Analyst and not his opimon. 11. Bearing in mind what is indicated above, when one reverts to the report of the Public Analyst what attracts the eyes, most prominently, is that the Public Analyst has clearly reported that the sample of the article of food, namely, Lehar Slice, did conform to the quality standards as prescribed; but as the lid of the bottle had been found rusted and the outer side of the bottle, wherein the article of food was kept, had been found dirty, the same, according to the Public Analyst, caused health hazard and, therefore, amounted to adulteration within the meaning of Section 2(ia)((e), is the opinion, so rendered by the Public Analyst, tenable in law? 12. The question, posed above, brings me to Section 2(ia)(e), which, I note, reads as under : "Section 2(ia) "adulterated an article of food shall be deemed to be adulterated, *** *** *** (e) if the article had been prepared, packed or kept under insanitary conditions, whereby it has become contaminated or injurious to health. (Emphasis is added). 13. A cautious and microscopic reading of clause (e) of Section 2(ia) clearly reveals that in order to become adulterated, it is the article of food, which has to become contaminated or become injurious to health inasmuch as clause (e) of Section 2(ia) states that an article of food shall be deemed to be 'adulterated' if the article had been prepared, packed or kept under insanitary conditions, whereby it has become contaminated or injurious to health. The word, 'it', appearing in Clause (e), refers to the word, 'article', which means 'article of food'. Unless, therefore, an article of food becomes contaminated or injurious to health, the article of food cannot be deemed to be adulterated. With this clear position of law in mind, let me proceed further. 14. The word, 'it', appearing in Clause (e), refers to the word, 'article', which means 'article of food'. Unless, therefore, an article of food becomes contaminated or injurious to health, the article of food cannot be deemed to be adulterated. With this clear position of law in mind, let me proceed further. 14. In the present case, as far as the article of food was concerned, the same was found to be conforming to the quality standards as prescribed by the Prevention of Food Adulteration Rules, 1956, and if that be so, the article of food could not have been opined to be adulterated inasmuch as the word 'it', as already indicated above, appearing in clause (e) of Section 2(ia), refers to the article of food and not to its package or container. By no way, therefore, the article of food, which is, otherwise, found to be not contaminated or injurious to health, can be made to fall within clause (e) of Section 2(ia). 15. In the face of the definition of adulterated as contained in clause (e) of Section 2(ia), the opinion of the Public Analyst is ex facie incorrect. In these circumstances, the prosecution of the accused- petitioners, in the case at hand, shall, if allowed to proceed amount to nothing, but abuse of the process of law and would cause serious miscarriage of justice. 16. What crystallizes from the above discussion is that in the present case, the prosecution of the accused-petitioners, on the strength of the Public Analyst's report, in question, is misconceived and untenable in law. 17. In the result and for the reasons discussed above, this criminal petition succeeds. The criminal prosecution, launched against the present petitioners, including the order, dated 11.11.2007, shall accordingly stand set aside and quashed. Send back the LCR. Petition allowed