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2013 DIGILAW 2103 (RAJ)

Ramesh Kumar Mali v. State of Rajasthan

2013-11-26

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed by the petitioner assailing the order dated 25.11.2011 passed by the learned Chief Judicial Magistrate, Sirohi in Cr.Case No. 548/2011 whereby, cognizance was taken against the petitioner for the offences under Section 7(i) and (ii) r/w Section 16 of the Prevention of Food Adulteration Act. 2. Briefly stated the facts of the case are that the Food Inspector Sirohi during inspection on 13.7.2010 collected samples of Swastik Brand Mustard Oil from the shop of Hitesh Kirana Store being operated by Dilip Kumar Mali. The mustard oil purchased by the Food Inspector was factory packed in 500 ml bottles. As per the label appended on the bottles and as per the bill submitted by the vendor, the mustard oil was manufactured by the petitioner's firm M/s. Shree Ashok Oil Industries, Sumerpur. The sample of the mustard oil so purchased from Dilip Kumar was forwarded to the public analyst for analysis. The public analyst by the report dated 10.8.2010 gave an opinion that the sample conformed to the prescribed standards laid down under item A17.06 of Appendix B of Prevention of Food Adulteration Rules but it was misbranded under sub-clause (k) of Clause (ix) of Section 2 of the Prevention of Food Adulteration Act as the nutritional facts were not disclosed on the label as required under Rule 32 of the Prevention of Adulteration Rules. 3. Sanction was sought for prosecution of the petitioner and the co-accused. The sanctioning authority i.e. the CMHO, Sirohi accorded sanction to prosecute the accused by a communication dated 24.11.2011 wherein it was observed that "the sample of the mustard oil purchased from the vendor Dilip Kumar and manufactured by the petitioner's firm was adulterated". The complaint filed by the Food Inspector was also filed with the similar limited allegation that the sample of oil was adulterated. 4. The learned Magistrate proceeded to summon the petitioner and the co-accused on the basis of the said complaint by order dated 25.11.2011, which is under challenge in this misc. petition. 5. Shri Richin Surana, learned counsel for the petitioner contended that ex-facie the order taking cognizance against the petitioner and the co-accused is a gross abuse of the process of the Court. He submitted that the sample of the mustard oil upon its analysis by the public analyst w as found conforming to the standards prescribed under the Act. petition. 5. Shri Richin Surana, learned counsel for the petitioner contended that ex-facie the order taking cognizance against the petitioner and the co-accused is a gross abuse of the process of the Court. He submitted that the sample of the mustard oil upon its analysis by the public analyst w as found conforming to the standards prescribed under the Act. He, therefore, urged that the sanction, which has been accorded for prosecuting the accused in the case suffers from an absolute non-application of mind. He further submitted that the complaint filed by the Food Inspector is also suffering from the same fundamental defect because it has been filed with the limited allegation that the sample was adulterated, whereas the fact remains that the mustard oil was not adulterated and was found conforming to standards on being analysed by the public analyst. Learned counsel thus urged that the misc. petition deserves to be accepted and the order taking cognizance should be quashed. He relied on the decision rendered by the Hon'ble Supreme Court in the case of Dwarka Nath & Anr. v. Municipal Corporation of Delhi reported in AIR 1971 SC 1844 and urged that the Rule 32 of the Rules, the violation whereof is alleged in this case, has been declared to be ultra vires and thus, the proceedings of the complaint should be quashed. 6. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the petitioner. It was urged that the sample of mustard oil manufactured by the petitioner's firm was found misbranded upon being analysed by the public analyst. Learned Public Prosecutor submitted that if at all the petitioner is aggrieved of the proceedings going on against him in the Court below, he could approach the Trial Court and move an appropriate application for discharge. She submitted that the Trial Court will be in a better position to appreciate the factual issues agitated byway of this misc. petition and thus, the petitioner would be better advised to approach the Trial Court and move an application for discharge. 7. Heard and considered the arguments advanced at the bar and perused the order impugned and the record. 8. The short controversy which this Court has been called upon to consider is as to whether the proceedings of the complaint can be continued in view of the public analyst report available on the record. 7. Heard and considered the arguments advanced at the bar and perused the order impugned and the record. 8. The short controversy which this Court has been called upon to consider is as to whether the proceedings of the complaint can be continued in view of the public analyst report available on the record. The relevant Rule, the violation whereof is attributed to the accused, is Rule 32 of the Prevention of Food Adulteration Rules. The only shortcoming pointed out by the public analyst in the oil sample is that the nutritional contents were not mentioned on the label of the mustard oil bottle. The requirement to mention the nutritional value on the label is prescribed in Rule 32A of the Rules which is quoted hereinbelow: "32A. Nutritional Food- The food claimed to be enriched with nutrients such as minerals, proteins or vitamins shall give the quantities of such added nutrients on the label." 9. A bare perusal of that rule shows that it is only when the food article is claimed to be enriched with nutrients such as minerals, proteins or vitamins, there is a requirement to display on its label, the quantities of such added nutrients. The description on the label of the mustard oil available in the inspection memo prepared by the Food Inspector clearly demonstrates that the mustard oil manufactured by the petitioner was not claimed to be nutritional food article. Therefore, there was no requirement of mentioning the quantities of the added nutrients on the label thereof. In this view of the matter, the very basis of filing the complaint in this case is non-est. That apart, a perusal of the sanction letter dated 24.11.2011 issued by the CMHO, Sirohi which is available on the record shows that the sanction which was accorded to prosecute the accused in this case was for selling adulterated mustard. The relevant portion of the sanction letter dated 24.11.2011 is reproduced hereinbelow:- " ,oa tu fo'ys"kd tks/kiqj ls izkIr tkWap fjiksVZ ,y,l& 669@,DV@2010@705 fnukad 10-8-2010 ds voyksdu ls Li"V gS fd ljlksa rsy ( LokfLrd czk.M ) 500 ,e,y iSd cksry feykoVh ik;k x;k gS tks [kk| vifeJ.k fuokj.k vf/kfu;e 1954 dh /kkjk 7(1)(ii) ds vUrxZr n.Muh; vijk/k gS ,oa ftldh ltk /kkjk 16 esa of.kZr gSaA " 10. The relevant portion of the public analyst's report also needs to be quoted here and the same is reproduced hereinbelow:- "that the sample of Mustard oil (Brand - Swastik L(H)A Code and Sr. No. S-257 conforms to the prescribed standard as laid down under item A17.06 of Appendix B of PFA Rules, but it is misbranded under sub-clause (k) of clause (ix) of Section 2 of PFA Act, 1954." 11. Thus, the public analyst clearly opined that the sample conforms to the prescribed standards as laid down in the rules but is misbranded. The complaint filed by the Food Inspector is also in relation to the sale of adulterated mustard oil. Para No. 7 of the complaint which is relevant in this regard in quoted herein below: " ;g fd ifjoknh [kk| fujh{kd dks ckn tkap ,y0,l 669@,DV@10@705 fnukWad 10-8-2010 tfj;s lh,e,pvks fljksgh ds }kjk uewuk fjiksVZ feykoVh ik;k x;kA tkap fjiksVZ lyaXu gSA " 12. The complaint nowhere mentions that the mustard oil manufactured by the petitioner was misbranded. Thus, it is evident that the sanction accorded for filing the complaint against the accused in this case is patently illegal and was issued with the total non-application of mind. Likewise, the complaint filed by the Food Inspector was also filed mechanically and without any application of mind whatsoever. No fact regarding the mustard oil being misbranded is mentioned either in the sanction or the complaint. 13. Thus, in view of the aforesaid discussion, this Court is of the opinion that permitting the proceedings of the complaint to be continued against the petitioner as well as the co-accused, who has not approached this Court, would be a gross abuse of the process of the Court.Resultantly, the misc. potion deserves to be accepted and is hereby allowed. The proceedings of the complaint case No. 548/2011 pending in the Court of learned Chief Judicial Magistrate, Sirohi are hereby quashed.Stay petition is also disposed of.Record of the Trial Court be sent back forthwith.Petition allowed. *******