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2015 DIGILAW 2063 (PNJ)

Subhash Ch. Samantray v. State of Punjab

2015-11-16

SABINA

body2015
JUDGMENT Mrs. Sabina, J.:- Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of criminal complaint No. 242-A/08 titled ‘State versus Subash Ch. Samantaray and others’ under Section 7/16 of Prevention of Food Adulteration Act, 1954 (‘Act’ for short) (Annexure P-1), and all the subsequent proceedings arising there from including the summoning order dated 1.8.2008 (Annexure P-2) and order dated 31.1.2012 (Annexure P-3). 2. Learned counsel for the petitioner has submitted that as per the complaint, sample of Cama Sterlised Flavoured Milk was sent for analysis. However, the Public Analyst while submitting the report had treated the sample as buffalo milk and had given the report that the contents of the sample were adulterated. Hence, the complaint in question was liable to be quashed as it was based on incorrect report of the public analyst. 3. Learned State counsel, on the other hand, has opposed the petition and has submitted that the sample of sterlised flavoured milk was required to contain 1.5% milk fat whereas the sample contained only 1.17% milk fat. 4. In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of 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 chennelised and inflexible guidelines or 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 complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations 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. (2) Where the allegations 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 the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations 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 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 a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 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 extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 5. Case of the complainant, in brief, is that on 3.7.2008, complainant along with other officials had inspected the premises of Retail Outlet-cum-Parlour of HSB Milk Foods Limited, Village and Post Office Kahma. Case of the complainant, in brief, is that on 3.7.2008, complainant along with other officials had inspected the premises of Retail Outlet-cum-Parlour of HSB Milk Foods Limited, Village and Post Office Kahma. Complainant purchased 750 ML (3 bottles of 250 ML each) of Cama Sterlised Flavoured Milk for analysis on payment of Rs. 45/-. The bottles were opened and were emptied in a jug. Thereafter, the samples were drawn from the same and were made into sealed parcels. As per the report of the Public Analyst, the sample was adulterated as it contained 1.17% milk fat against the minimum prescribed standard of 6% and also contained sucrose (sugar) whereas it should have been free from the same. 6. Annexure P-4 is the report of the Public Analyst. A perusal of the same reveals that sample of “sterlised flavoured milk” had been analyzed. The opinion of the Public Analyst reads as under:- “The contents of the sample contain 1.17 Milk Fat against the minimum prescribed standard of 6.0% and it also contain sucrose (sugar) where as milk should be free from the same. The content of the sample are therefore adulterated.” 7. As per Appendix B [A.11.01.11] of the Prevention of Food Adulteration Rules, 1955, buffalo milk whether raw, pasteurised, boiled, flavoured and sterlised is required to contain minimum milk fat to the extent of 6.0%. So far as the double toned milk is concerned, the same is required to contain 1.5% fat whether it is pasteurised, flavoured and sterlised. As per note (i), when the milk is offered for sale without indication of the class the standards prescribed for buffalo milk shall apply. 8. Annexure P-5 is the Form-VI filled by the complainant at the time of drawing of the sample. The relevant para of the same is reproduced hereinbelow:- “Sterlised flavoured milk 750 ml, i.e. 3 bottles D. Nawanshahr of 250 ml each of cama sterlised flavoured milk purchased for analysis. As per pack 250 ml, Pkd 20 Jun 2008, B No 02, MRP Rs. 15. Best before three months of manufacture. HSB Milk foods VPO Shahpur, Garhshankar, Punjab. Ingredients: Double toned milk, sugar and permitted flavours.” 9. A perusal of the above reveals that the sample in question was of double toned milk as it had been duly mentioned on the bottles that the bottles contained double toned milk, sugar and permitted flavours. 15. Best before three months of manufacture. HSB Milk foods VPO Shahpur, Garhshankar, Punjab. Ingredients: Double toned milk, sugar and permitted flavours.” 9. A perusal of the above reveals that the sample in question was of double toned milk as it had been duly mentioned on the bottles that the bottles contained double toned milk, sugar and permitted flavours. As per Annexure P-4, report of the Public Analyst, it is evident that sample which was analyzed, was sterlised flavoured milk, whereas the sample drawn by the complainant was double toned milk. Thus, the report submitted by the Analyst cannot be said to be a valid report. The complaint has been filed by the complainant on the basis of an incorrect report of the Analyst. Hence, continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law. 10. Accordingly, this petition is allowed. Criminal complaint No. 242-A/08 titled ‘State versus Subash Ch. Samantaray and others’ under Section 7/16 of the Act (Annexure P-1) and all the consequential proceedings, arising therefrom, including the summoning order dated 1.8.2008 (Annexure P-2) and order dated 31.1.2012 (Annexure P-3), are quashed.