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2015 DIGILAW 1257 (JHR)

Sailendra Prakash Sharma v. State of Jharkhand

2015-10-08

RAVI NATH VERMA

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ORDER : Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short “the Code”), the petitioner has questioned the legality of the impugned order dated 13.05.2007 passed by the Chief Judicial Magistrate, Jamshedpur whereby the learned court below has taken cognizance of offence under Sections 16 (1) (a) of the prevention of Food Adulteration Act, 1954 (in short “the Act”) against this petitioner. 2. On the basis of the prosecution report of Civil Surgeon-cum- Chief Medical Officer, Jamshedpur dated 10.05.2007 addressed to the Chief Judicial Magistrate, Jamshedpur, Complaint Case bearing C/2 Case no. 1760 of 2007 was instituted on the allegation that on 12.03.2007 at about 4:30 p.m., the Food Inspector of Jamshedpur conducted raid in the premises of M/s. Sonia Agency at Purulia Road, Mango, Jamshedpur and from the premises of the said Agency, sample of “Papad” was taken, which was manufactured by Sunrise Spices Limited, Bilaspur, Rajsthan of which the petitioner was the Managing Director and the sample was subsequently found as “misbranded” by the Public Analyst Sri S. Sharma of MADA, Dhanbad. 3. The learned Chief Judicial Magistrate after going through the prosecution report took cognizance of the offence as indicated above. Hence, this petition for quashing of the order taking cognizance. 4. It appears from the record that the Public Analyst Sri S. Sharma of MADA after analyzing the sample reported about the “misbranding” of the product as the same was not labeled in consonance with the requirements of Rule 32 of P.F.A. Rules, 1955 i.e. “Best Before Use” was not mentioned. 5. Learned counsel Mr. Nilesh appearing for the petitioner submitted that during the relevant period, the Public Analyst was not authorized by the Government in terms of Section 8 of the Act and that the court below without applying his judicial mind that the said Analyst was not notified either by the State Government or by the Central Government during the relevant period between 19.03.2007 to 03.04.2007, mechanically passed the order impugned. As such, he was not competent to make any analysis. The said Analyst Mr. Sharma was appointed on contract basis by the State Government and his contract period had expired on 30th November, 2006 and that period was never extended by publishing any notification/gazette rather vide notification no. 65 (II) dated 03.04.2007, one Jitendra Kumar was appointed as Public Analyst. As such, he was not competent to make any analysis. The said Analyst Mr. Sharma was appointed on contract basis by the State Government and his contract period had expired on 30th November, 2006 and that period was never extended by publishing any notification/gazette rather vide notification no. 65 (II) dated 03.04.2007, one Jitendra Kumar was appointed as Public Analyst. Learned counsel relying upon an order dated 05.07.2012 passed in Cr.M.P. no. 677 of 2009 submitted that in similar situation, the order taking cognizance and the entire prosecution have been quashed by a Bench of this Court. Hence, the continuance of criminal prosecution including the order taking cognizance is bad in law. 6. The submissions made by the counsel for petitioner has not been controverted by the learned counsel representing the State. Even no counter affidavit has been filed. 7. Before entering into the submissions of the learned counsel for the petitioner, a reference of Section 8 of the Prevention of Food Adulteration Act, 1954 is necessary for the proper adjudication of the issues involved in this case, which reads as follows:- “Section 8 Public Analyst.- The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be: Provided that no person has any financial interest in the manufacture, import or sale of any article or food shall be appointed to be public analyst under this section (provided further that different public analysts may be appointed for different articles of food).” 8. From bare reading of the aforesaid provision, it appears that the notification with respect to the appointment of a person as Public Analyst needs to be notified in the official gazette. Since, it has not been controverted that Sidheshwar Sharma, the Public Analyst, during the relevant time was not notified as Public Analyst in the official gazette, it can be said that the analysis made by the said Public Analyst and declaring the seized “Papad” as misbranded had never been made by a Public Analyst appointed under the provision of the said Act. 9. Under that situation, the prosecution based on the report submitted by such Analyst certainly appears to be bad in law. 10. 9. Under that situation, the prosecution based on the report submitted by such Analyst certainly appears to be bad in law. 10. In view of the discussion made above, the entire prosecution based on the report of such Public Analyst by way of complaint case bearing no. C/2- 1760 of 2007 including the order dated 13.05.2007 by which cognizance was taken, are, hereby, quashed. 11. In the result, this criminal miscellaneous petition is, hereby, allowed. Petition allowed.