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2012 DIGILAW 35 (PAT)

Soumindra Bhattacharya v. Kali Pedo Karmakar

2012-01-10

RAJENDRA KUMAR MISHRA

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JUDGMENT R.K. Mishra, J.-All these applications, under Section 482 of the Code of Criminal Procedure, have been filed for quashing the order dated 21.10.2000 passed by the Additional Chief Judicial Magistrate, Purnia, in Complaint Case Nos. B III-2 of 2000, B III-3 of 2000 and B III-4 of 2000, taking cognizance of the offence under Section 16(1)(A) of the Prevention of Food Adulteration Act against the petitioners and also the entire criminal proceedings, arising out of the aforesaid complaint cases. Since in all these applications, similar point has been raised for consideration, therefore, they have been heard together and are being disposed of by this common judgment. 2. In brief, the case is that the Food Inspector, Patna, Surendra Kumar, who is complainant-opposite party No.2 in all the aforesaid applications, collected the samples of Limca-300 ml. of three bottles, Thums up-300 ml. of three bottles, Limca-300 ml. of three bottles and Limca-300 ml. of three bottles of Hindustan Coca-Cola Beverages Private Limited, E-1, Industrial Area, Patliputra Colony, Patna-13, from the shop of Kali Pado Karamakar (petitioner No. 1 of Criminal Misc. Nos. 6257 of 2002, 32948 of 2002 and 6245 of 2002) running in the name of M/s. Karamkar & Sons on 27.7.1999. After collecting the samples, he sent the same for its analyst report. After receiving the analyst report dated 9.9.1999 of the Public Analyst indicating the samples in bottles adulterated under the Prevention of Food Adulteration Act (hereinafter referred to as ‘the Act’), the prosecution report, numbered as Complaint Case No. B III-2 of 2000, for violation of the Act in respect to sample of Thums-Up, the prosecution report, numbered as Complaint Case No. B III-3 of 2000, for violation of the Act in respect to sample of Limca and prosecution report, numbered as Complaint Case No. B III-4 of 2000, for violation of the Act in respect to sample of Limca, were filed under Section 16(1) (A) of the Act. Thereafter, in all the aforesaid three complaint cases, the Additional Chief Judicial Magistrate, Purnia, on perusal of the materials available on record, took the cognizance of the offence under Section 16(1)(A) of the Act against the Chairman, Managing Director, all Administrative Officers, the Area General Manager, Hindustan Coca-Cola Beverages Private Limited, Soumindra Bhattacharya (petitioner No. 1 in Criminal Misc. Nos. Thereafter, in all the aforesaid three complaint cases, the Additional Chief Judicial Magistrate, Purnia, on perusal of the materials available on record, took the cognizance of the offence under Section 16(1)(A) of the Act against the Chairman, Managing Director, all Administrative Officers, the Area General Manager, Hindustan Coca-Cola Beverages Private Limited, Soumindra Bhattacharya (petitioner No. 1 in Criminal Misc. Nos. 10951 of 2001, 10952 of 2001 and 10949 of 2001), The Plant H.R. Manager, Hindustan Coca-Cola Beverages Private Limited, A. Subramanium (petitioner No. 2 in Criminal Misc. Nos. 10951 of 2001, 10952 of 2001 and 10949 of 2001), Director/Vice President, Hindustan Coca- Cola Beverages Private Limited, Sanjeev Gupta (petitioner in Criminal Misc. Nos. 12423 of 2001, 12416 of 2001 and 12417 of 2001) and also the proprietor of M/s. Karamkar & Sons, Kali Pado Karamakar and seller, Gaur Chandra Mukherjee (petitioner Nos. 1 and 2 respectively in Criminal Misc. Nos. 6257 of 2002, 32948 of 2002 and 6245 of 2002) vide order dated 21.10.2000. Aggrieved with the aforesaid order of cognizance, all the aforesaid criminal miscellaneous applications have been filed before this Court. 3. Learned senior counsel appearing on behalf of the petitioners of all the applications questioned the orders impugned that at the time of filing prosecution report, the complainant-opposite party No.2 violated the provisions contained in Section 13(2) of the Act. It is submitted that even on the date filing of the complaint petitions, no Public analyst Report was communicated to the petitioners, which was mandatory as per Section 13(2) of the Act. It has further been submitted that life of Limca and Thums-up was six months from the date of its manufacturing and even if it is assumed that on the date of analyst report of Limca and Thums-up, the life of the Limca and Thums-up had not expired even then on the date of filing of prosecution report, life of Limca and Thums-up had already expired. Further, it is also argued that analyst report was never supplied to the petitioners and, as such, the petitioners were debarred to raise any objection for test of the samples by Central Food Laboratory. As such, in view of violation of provisions as contained in Section 13(2) of the Act, the order of cognizance as well as the entire prosecution is liable to be quashed. As such, in view of violation of provisions as contained in Section 13(2) of the Act, the order of cognizance as well as the entire prosecution is liable to be quashed. In support of submission, learned senior counsel appearing on behalf of the petitioners placed reliance on a decision of a Bench of this Court in the case of Sharwan Kumar v. The State of Bihar and another, 1997 (1) LPJR 453. It has also been submitted that in a similar matter a Bench of this Court vide order dated 22nd of November, 2010 passed in Criminal Misc. No. 10956 of 2001 and its analogous cases, has quashed the cognizance order, which would appear from Annexure-‘4’ to the supplementary affidavit filed on behalf of the petitioner. Sanjeev Gupta, in Criminal Misc. No. 12423 of 2001, 12416 of 2001 and 12417 of 2001. 4. On the other hand, Sri Dilip Kumar Sinha, learned A.P.P. for the State, opposing the prayer of the petitioners, made submission that the petitioners have approached this Court to quash the cognizance order, which is not required to be interfered with in ordinary course as the learned Additional Chief Judicial Magistrate, Purnia, on being satisfied with the materials available on record, found prima facie case and, accordingly, has taken the cognizance of the offence under Section 16(1)(A) of the Act. 5. It has specifically been submitted on behalf of the petitioners that the right conferred by Section 13 of the Act has been infringed as the analyst reports have not been supplied to the petitioners but there is no rebuttal in the counter affidavit lied on behalf of the State/ opposite party No.2. To appreciate the submission as advanced on behalf of the petitioners it would be proper to quote Section 13(1) (2) and (3) of the Act, which are as follows : “Section 13(1): The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. Section 13(2) : On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of the prosecution against the persons from whom the sample of the article of food was taken and the person if any whose name, address and other particulars have been disclosed under Section 14A, forward in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. Section 13(3): The certificate issued by the Director of the Central Food Laboratory (under sub-section 2B) shall supersede the report given by the public analyst under sub-section (1).” 6. On perusal of the sub-section (2) of Section 13 of the Act, it is clear that after receipt of the analyst report and after institution of the prosecution against the concerned persons, it was mandatory on the part of the local authority to forward the said report to the concerned persons including the persons whose name transpired in view of Section 14-A of the Act. Further sub-section (3) of Section 13 of the Act makes it clear that if the report/certificate from the Central Food Laboratory is received, the same will supersede the report given by public analyst under sub-section (1) of Section 13 of the Act. 7. On going through the aforesaid provisions, it is clear that it was mandatory on the part of the local authority/complainant- opposite party No. 2 to give a report to the petitioners to provide them opportunity to raise objection on the report of public analyst and to make prayer to send the sample to Central Food Laboratory. In the present cases, the stand was taken that life of Limca and Thums-up was six months from the date of its manufacturing. In the present cases, the stand was taken that life of Limca and Thums-up was six months from the date of its manufacturing. It is not in dispute that till the date of filing of the prosecution report before the Magistrate, analyst report was not communicated to any of the petitioners The prosecution report was filed in the Court of Magistrate on 21.10.2000 on the basis of the analyst report dated 9.9.1999. Thus, it is apparent that on the date of filing of the prosecution report, life of Limca and Thums-up had expired and, as such, even on the date of filing of the prosecution report, no purpose under Section 13(2) of the Act would have been served even if the report of analyst had been supplied to the petitioners. In view of admitted position that analyst report was not supplied to the petitioners, the complainant-opposite party No. 2 violated the mandatory provision as contained in Section 13(2) of the Act. The similar view has been taken by a Bench of this Court in case of Sharwan Kumar (supra). Therefore, the order taking cognizance on prosecution reports-filed by the complainant-opposite party No.2, Surendra Kumar, the Food Inspector, Patna, is bad in law and fit for interference in inherent jurisdiction under Section 482 of the Code of Criminal Procedure. 8. Under the aforesaid facts and circumstances, the order of cognizance dated 21.10.2000 passed by the Additional Chief Judicial Magistrate, Purnia, in Complaint Case Nos. B III-2 of 2000, B III-3 of 2000 and B III-4 of 2000 with respect to the petitioners is hereby quashed and all the applications are allowed. Applications allowed.