Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 692 (JK)

Jai Industries v. Narinder Singh

2017-08-19

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Through the medium of this petition, petitioner seeks quashment of criminal proceedings in case titled “S. Narinder Singh Vs. Jai Industries” pending before the Court of learned Chief Judicial Magistrate, Jammu. 2. The main facts emanating from the case set up are that petitioner firm is engaged in the business of manufacture of cement for the last more than a decade and the cement so manufactured by the petitioner’s firm marketed under the name and style M/s Jai Industries, Jammu under licence No.9312973 dated 10.01.2005. 3. That the factory is being periodically inspected by the Inspecting Officer appointed by the Bureau of Standard, who were taking the samples of the cement manufactured by the petitioner factory for its verification, as to whether the cement manufactured by the petitioner factory is as per the standards and specifications required for the manufacture of Portland-Oizzolana Cement Specification issued by the Bureau of Indian Standard and no sample ever was found defective and not to the standard of specification during the past period of more than ten years. It is contended that the respondent is not an officer appointed as inspecting officer by the Bureau of Indian Standard Act, 1986 and had no legal authority whatsoever to enter the premises of petitioner factory and take samples of the cement, since he is not an inspecting officer appointed under the Bureau of Indian Standard Act. In paragraph No.2 of the complaint, respondent No.2 has mentioned that a team of the officers of Food and Supplies Department had lifted the samples of the cement from the premises of the petitioner factory which shows that the respondent is not an inspecting officer and as such also not legally competent to lift any sample from the premises of the petitioner. It is also contended that respondent has no legal authority to send the sample allegedly taken by him to Material Testing Laboratory, Jammu for the purpose of its physical testing and any of its result cannot be used against the petitioner. The inspecting officers of the Bureau of Indian Standard visit the factory of the petitioner quarterly and takes the samples for its verification as to whether the same is being manufactured as per the standard laid down by them. The inspecting officers of the Bureau of Indian Standard visit the factory of the petitioner quarterly and takes the samples for its verification as to whether the same is being manufactured as per the standard laid down by them. It is also contended that the test which had been conducted by the laboratory mentioned in the complaint and its result is of no consequences as the laboratory mentioned in the complaint has not been established by Bureau of Indian Standard Act and the result whereof cannot be legally taken into consideration for the purposes of the provisions of Bureau of Indian Standard Act. It is also contended that the process initiated against the petitioner by the Court of learned Chief Judicial Magistrate, Jammu, for the alleged violation of the provisions of Bureau of Indian Standard Act, is a gross abuse of process of the Court and as such the same is liable to be quashed. It is also contended that there is nothing suggestive of the fact that petitioner is guilty of any offence much less under Section 486, 420 RPC and 11/13 of the Bureau of Indian Standard Act since the complainant/respondent is not an authority appointed as Inspecting Officer under Section 25 of the Bureau of Indian Standard Act and therefore the proceedings initiated on the complaint of the respondent mentioning therein the above said offences is an abuse of the process of the Court and thus are liable to the quashed. 4. On the other hand, respondent in his objections has stated that there were number of complaints that Petitioner Company was selling spurious/sub slandered cements. That prima facie case has been made out of cheating to public at large. 5. I have heard learned counsel for the petitioner and gone through the contents of the petition. 6. From the perusal of trial court record, it is evident that respondent, I/C Assistant Director Food & Supply Department (CAPD) was allegedly number of complaints pouring in about spurious/sub standard cement in market in Jammu Province; a team of officers of Food and Supply raided in manufacturing unit of petitioner on 28.1.2003; samples of cement were lifted in presence of A.K Aggarwal, Manager and Manoj Kumar, Chemist of factory; these were sent to Govt. Material Testing Laboratory Jammu for Physical testing; vide letter no.78/2005-06 dated 25.3.2003 Research officer of Testing Laboratory furnished report, which indicates that cement manufactured by petitioner unit failed among other tests in compression strength tests. In this way, it was found that petitioner is cheating the public and cement so manufactured has great risk of life to public at large; a show cause notice was sent to petitioner along with material testing report on 28.4.2003 vide letter no. 568-78/DFSJ/EC/2003, which was received by petitioner. 7. Accordingly, prosecution was launched by filing complaint under section 11/13 Bureau of Indian Slandered Act 1986 and under section 486/420 RPC before CJM Jammu. CJM Jammu, accordingly, took cognizance and issued process on 17.5.2003. Accused appeared and prayed for filing application for dropping the proceeding; but did not file; thereafter complaint remained pending for evidence of complainant; in the meanwhile petitioner has filed present petition. Bureau of Indian Standard Act is an Act to provide for the establishment of a Bureau for the harmonious development of the activities of standardization, marking and quality certification of goods and for matters connected therewith or incidental thereto. 8. Section 25 of the Act reads as under :- “25. (1) The Bureau may appoint as many inspecting officers as may be necessary for the purpose of inspecting whether any article or process in relation to which the Standard Mark has been used conforms to the Indian Standard or whether the Standard Mark has been properly used in relation to any article or process with or without licence, and for the purpose of performing such other functions as may be assigned to them. (2) Subject to any rules made under this Act, an inspecting officer shall have power to – (a) inspect any operation carried on in connection with any article or process in relation to which the Standard Mark has been used; and (b) take samples of any article or of any material or substances used in any article or process, in relation to which the Standard Mark has been used. (3) Every inspecting officer shall be furnished by the Bureau with a certificate of appointment as an inspecting officer and the certificate shall, on demand, be produced by the inspecting officer. 26. (3) Every inspecting officer shall be furnished by the Bureau with a certificate of appointment as an inspecting officer and the certificate shall, on demand, be produced by the inspecting officer. 26. (1) If the inspecting officer has reason to believe that any article or process in relation to which the contravention of section 11 or section 12 has taken place are secreted in any place, premises or vehicles, he may enter into and search such place, premises or vehicle for such article or process. 9. First argument of counsel for petitioner is that respondent is not an officer appointed as Inspecting Officer by the Bureau of Indian Standard Act, 1986 and had no legal authority whatsoever to enter the premises of petitioner factory and take samples of the cement, since he is not an inspecting officer appointed under the Bureau of Indian Standard Act. This argument is based on assumption; because except bald assertion that respondent was not a inspecting officer so had no legal authority, there is nothing on record to support this argument. From the perusal of section 25 of Act, it is evident that Bureau constituted under Act has power to appoint many inspecting officers as may be necessary for the purpose of inspecting the units in order to see implement the provisions of this act and also to see violation, if any, committed by any person/s. 10. Next it has been argued that respondent has no legal authority to send the sample allegedly taken by him to Material Testing Laboratory, Jammu for the purpose of its physical testing and any of its result cannot be used against the petitioner. 11. I have considered this aspect of the matter. 12. In terms of section 25(2) an inspecting officer shall have power to- (a) inspect any operation carried on in connection with any article or process in relation to which the Standard Mark has been used; and (b) take samples of any article or of any material or substances used in any article or process, in relation to which the Standard Mark has been used. So this argument also does not hold good. 13. So this argument also does not hold good. 13. The grounds taken in petition that the inspecting officers of the Bureau of Indian Standard visit the factory of the petitioner quarterly and takes the samples for its verification as to whether the same is being manufactured as per the standard laid down by them. These are facts which are required to be established in defense by petitioner in trial Court. 14. Last argument of learned counsel for the petitioner is that the test which had been conducted by the laboratory mentioned in the complaint and its result is of no consequences as the laboratory mentioned in the complaint has not been established by Bureau of Indian Standard Act and the result whereof cannot be legally taken into consideration for the purposes of the provisions of Bureau of Indian Standard Act. This argument is also based on assumption because petitioner has not annexed any proof as to how this laboratory does not fall in the list of laboratory established under Act. Whereas perusal of certificate issued it is evident that samples of cement has been tested in Material Testing Laboratory established by Govt. of Jammu and Kashmir established for this purpose. 15. In view of what has been discussed above, I do not find any grounds to quash the proceeding in complaint titled “S. Narinder Singh Vs. Jai Industries” pending before the Court of learned Chief Judicial Magistrate, Jammu. Petition is dismissed. Petitioner is directed to appear before the Court below on 05.09.2017.