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2017 DIGILAW 383 (ALL)

Acchey Lal Singh Kushwaha v. State of U. P.

2017-01-31

BACHCHOO LAL

body2017
JUDGMENT Bachchoo Lal,J. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. The present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 22.12.2016 passed by Chief Judicial Magistrate, Ghazipur in complaint case no. 5436 of 2016, State Vs. Acchhey Lal Singh Kushwaha, under section 26/51/59 of the Food Safety and Standards Act, 2006, police station Kotwali District Ghazipur as well as entire criminal proceeding of the aforesaid case pending in the court of Chief Judicial Magistrate, Ghazipur. The contention of the learned counsel for the applicant is that the applicant is running a shop in the name and style of Sadguru Sweet and Jalpan Grah situated at Ghazipur Ghat Post office Kithwaliya district Ghazipur. The applicant is doing his business full of devotion and also always conscious for safety of health of human being and never used any material or any other thing which causes harm to the human being. It has further been submitted that it is also mandatory that sample which was taken by the opp. party no. 2 shall be purchased after paying the requisite amount to the applicant firm and also receive a cash memo from the applicant. After perusal of the inspection letter dated 16.3.2016 it is crystal clear that the opp. party no. 2 neither purchased the aforesaid sample nor any cash memo has been collected from the applicant and the aforesaid cash memo has also not been filed with the complaint. In absence of aforesaid mandatory provisions of the aforesaid Act on this sole ground the entire proceeding is liable to be quashed. It has further been submitted that the procedure of Code of Criminal Procedure has also not been followed by the Magistrate concerned. Learned Magistrate has taken recognizance without considering the material available on record and passed the order dated 22.12.2016 issuing notice to the applicant. In fact, applicant has not committed the alleged offence, no prima facie case is made out against the applicant. The applicant has falsely been implicated in this case only for the purpose of harassment. On the other hand, learned A.G.A. argued that on 16.3.2016, the opp. party no. 2 made an inspection of the shop of applicant and collected 2 kg. Bundi Laddu which was prepared with Besan, sugar, soyabean refined and colour which were used for eating purpose. The applicant has falsely been implicated in this case only for the purpose of harassment. On the other hand, learned A.G.A. argued that on 16.3.2016, the opp. party no. 2 made an inspection of the shop of applicant and collected 2 kg. Bundi Laddu which was prepared with Besan, sugar, soyabean refined and colour which were used for eating purpose. In the report of Food analyst it has been mentioned that sample is substandard and unsafe. In complaint it has been mentioned that opp. party no. 2 has purchased 2 kg. Bundi Laddu after paying Rs. 240/- to applicant. The complaint has been filed by opp. party no. 2 who is Food Safety Officer and Public Servant. The Chief Judicial Magistrate concerned after considering the entire evidence available on record has taken recognizance against the applicant and has rightly issued summon to him. There is no illegality or irregularity in the impugned order. A perusal of record shows that the opp. party no. 2 has filed a complaint against the applicant under section 26/51/59 of the Food Safety and Standards Act, 2006. The Magistrate after considering the evidence available on record and finding prima facie case against the applicant has taken recognizance vide order dated 22.12.2016 and issued summon to the applicant. Considering the facts and circumstances of the case, I find no illegality or irregularity in the impugned order, therefore, I am not inclined to quash the entire proceedings of the aforementioned case and summoning order dated 22.12.2016, thus, the prayer for quashing the same is hereby refused. However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the applicant surrenders and applies for bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. State of U.P. For a period of 30 days from today or till the applicant surrenders and applies for bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. With the aforesaid directions, this application is finally disposed of.