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2020 DIGILAW 1160 (BOM)

Harish Girdharlal Sarda v. State Of Maharashtra

2020-10-12

AMIT B.BORKAR, Z.A.HAQ

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JUDGMENT Amit B. Borkar, J. - This application under Section 482 of the Code of Criminal Procedure, 1973, lays a challenge to the maintainability of First Information Report dated 07.05.2013 registered at Police Station, Chimur district - Chandrapur, vide Crime No.3011 of 2013 for offences punishable under Sections 55, 63 and 34 of the Food Safety and Standards Act, 2006 (for short "the Act of 2006") read with Rules 2, 3 18 (17) of the Food Safety and Standards (Prevention and Restrictions on Sales) Rules, 2011 read with Section 188 of the Indian Penal Code and further prays to quash and set aside the order dated 06.04.2013 passed by the non-applicant no.2. The applicant being aggrieved by initiation and continuation of above proceedings, prays for quashing thereof. 2. This Court on 22.9.2014, issued Rule and continued interim relief granted on 22.07.2014 directing the non-applicants not to take coercive steps against the applicant. 3. Pending the present application, Intervenor filed Criminal Application No.1624 of 2017 seeking permission to intervene in the present proceedings. In the said application, it is stated that the Intervenor is an Association of R.O. Chilled Water Manufacturers Welfare Association. It is stated that the Intervention Application filed by the Packaged Drinking Water Manufacturers Welfare Association, Nagpur, has been allowed in the present case. The Intervenor - Association has already filed Writ Petition No.4343 of 2017 in which notices are issued, wherein various issues relating to the provisions of the Act of 2006, Rules and Regulations are involved. Therefore, it is prayed that the Association be permitted to intervene in the present matter. The non-applicant nos.2 and 3 have opposed intervention application. 4. Having scrutinized the intervention application, we are of the opinion that there is no substance in the Intervention Application, as the Intervenor is neither victim nor an aggrieved person. The Intervenor has not demonstrated that its legal rights are impaired or any harm or legal injury is caused to it or likely to be caused due to initiation of the prosecution against the applicant herein. Therefore, the Intervenor has no legal right to intervene in the present proceedings and accordingly, the application for intervention is dismissed. 5. The prefatory facts would be necessary to comprehend better the issues involved and the rival contentions. 6. Therefore, the Intervenor has no legal right to intervene in the present proceedings and accordingly, the application for intervention is dismissed. 5. The prefatory facts would be necessary to comprehend better the issues involved and the rival contentions. 6. The case of the applicant in substance is that the applicant is providing water for industrial and domestic purposes to varied consumers in Chandrapur. Water is transported in Cans to various consumers. The Cans are not sealed containers. The water, so provided by the applicant, is not packaged drinking water, as contemplated by the provisions of the Act of 2006. The treatment is given to the water before its supply primarily to purify it before the same is used for any sort of industrial or domestic purposes. The applicant is not selling water to his consumers. The water is supplied only by charging transportation costs. The applicant - Firm essentially supplies water in unsealed Jars and Cans, which are simply covered for supply to his domestic and industrial consumers. 7. On a complaint filed by one Govardhan Chavan on 20.12.2012, the non-applicant nos.2 and 3 visited undertaking/unit of the applicant on 08.03.2013 and carried out the inspection. A report submitted by the Food Safety Officer records that the applicant was running the undertaking/unit without a license as required under the Act of 2006 or Certificate provided by Bureau of Indian Standards. Based on the said report, the non-applicant no.3 issued closure order on 06.04.2013 in exercise of the power conferred under Section 36 (3) (b) of the Act of 2006 to stop the business of applicant till all the compliances under the provisions of the Act of 2006 are made . 8. The applicant made representation to the non-applicant no.3 stating that the applicant was not selling, "packaged drinking water" for which license was not required and, therefore, requested to withdraw the above closure order. 9. The Food Safety Officer of the non-applicant no.2 on 07.05.2013 carried out an inspection of establishment of applicant and found that the applicant was carrying out activities of manufacturing and selling packaged drinking water and, therefore, the non-applicant nos.2 and 3 filed First Information Report with the non-applicant no.1 bearing Crime No.3011/2013 on 07.05.2013. 10. The applicant has, therefore, filed the present application invoking powers of this Court under Section 482 of the Code of Criminal Procedure. 10. The applicant has, therefore, filed the present application invoking powers of this Court under Section 482 of the Code of Criminal Procedure. In substance, the case of the applicant is that the applicant is not manufacturing or selling "packaged drinking water" and, therefore, the provisions of the Act of 2006, Rules and Regulations do not apply to the applicant and there is no violation of any of the provisions of the Act of 2006, Rules and Regulations. 11. The non-applicant nos.1 and 2 initially on 27.11.2013 filed reply and pointed out that during an inspection on 08.03.2013, it was found that water from the undertaking/unit of the applicant was being supplied for human consumption. The non-applicant no.3 thereafter issued prohibition order in exercise of powers under Section 36 (3) (b) of the Act of 2006. In-spite of directions dated 04.06.2013, the applicant continued to conduct his business contrary to the provisions of the Act of 2006. The consumers of the applicant were : Offices, Banks, Gram Panchayats, Colleges and shops, which indicate that the purpose of supplying water from the applicant undertaking was for drinking and the applicant had given false information to the non-applicant nos.2 and 3. Therefore, it is submitted that the non-applicant nos.2 and 3 have initiated prosecution against the applicant. 12. The non-applicant nos.2 and 3 on 14.02.2014 filed an additional affidavit-in-reply and in paragraph nos.4 and 5 of the said reply, specifically stated that the applicant was carrying out the business of processed drinking water (Packaged Drinking Water). The relevant paragraph nos.4 and 5 of the affidavit-in-reply are as under:- "4. It is most respectfully submitted that the perusal of above mentioned provisions of law which governs the article of food i.e. Package Drinking Water in the present case clearly makes out an offence against the present applicant who is involved in the business of manufacturing and selling of Packaged Drinking Water. 5. The applicant is carrying out a business of processed drinking water (packaged drinking water) without following the rules and regulations of FSSA Act mentioned below. It is also pertinent to point here the relevant provisions of law, which requires obtaining of license and registration of food business." 13. The non-applicant nos.2 and 3 relied upon the judgment of the High Court of Delhi in the case of Bottled Water Processors Association Vs. It is also pertinent to point here the relevant provisions of law, which requires obtaining of license and registration of food business." 13. The non-applicant nos.2 and 3 relied upon the judgment of the High Court of Delhi in the case of Bottled Water Processors Association Vs. Union of India and others in Writ Petition (c) No.11672/2009 decided on 20.05.2010 and submitted that manufacturers like applicant require a license under the provisions of the Act of 2006. 14. The non-applicant nos.2 and 3 on 15.6.2017 filed another affidavit-in-reply and, inter alia, relied upon the judgment of the High Court of Karnataka in Writ Petition No.17713 of 2012 in the case of Lochamesh B. Hugar, President Vs. Union of India. It is submitted that the High Court of Karnataka in the said judgment has interpreted the definition of the word, 'Package', defined under Section 3 (1)(zh) of the Act of 2006 to mean that container will also be termed as 'package' and the term 'packaged drinking water' would include water stored in containers. It is submitted that water is a food article, being integral part of life and, therefore, to check the control and quality of food articles, the action is initiated against the applicant. Therefore, it is prayed by the non-applicant nos.2 and 3 that the application deserves to be dismissed. 15. We have heard Shri Sirpurkar, learned Advocate for the applicant and Shri S.J. Kadu, learned Additional Public Prosecutor for the non-applicant - State. 16. Shri Sirpurkar, learned Advocate for the applicant with reference to the contents of the F.I.R. has forcefully argued that the activity of the applicant is not covered under the definition, "Food" as defined under Section 3 (1)(j) of the Act of 2006 and, therefore, Authorities under the Act of 2006, have no power to take any action whatsoever against the applicant. It is submitted that the applicant had applied for license under the Act of 2006, he was asked to submit a certification of Bureau of Indian Standards. The Bureau of Indian Standards, in turn, responded to the applicant's request for certification saying that the applicant's activity does not come under the purview of Bureau of Indian Standards and, therefore, it is submitted that there is no violation of any of the provisions of the Act of 2006, Rules or Regulations. The Bureau of Indian Standards, in turn, responded to the applicant's request for certification saying that the applicant's activity does not come under the purview of Bureau of Indian Standards and, therefore, it is submitted that there is no violation of any of the provisions of the Act of 2006, Rules or Regulations. It is further submitted that the action of the non-applicant no.3 is arbitrary, mala fide and highhanded, as the non-applicant no.3 has issued the order of closure invoking Section 36 (3) (b) of the said Act of 2006. The non-applicant no.3 has not complied with the detailed procedure for initiating action against the applicant. The applicant is simply supplying water, which is cooled and stored in jar and containers, which are not sealed but, are covered by rolling lids and, therefore, the impugned proceeding is ex facie not maintainable in law. According to him, the allegations regarding breach of the provisions of the Act of 2006, Rules and Regulations, even if accepted in entirety, do not fulfill ingredients of offences alleged against the applicant and, therefore, continuance of the criminal proceedings would be an abuse of process of the Court. He, therefore, argued that the impugned proceedings launched against the applicant are without any merit whatsoever and, the interest of justice demands that it be quashed at this stage. 17. In reply, Shri S.J.Kadu, learned Additional Public Prosecutor, submitted with equal force that the F.I.R., discloses offences under the provisions of the Act of 2006, Rules and Regulations. He submitted that it is the specific case of the prosecution that the applicant was manufacturing and selling "Packaged Drinking Water" and therefore, it was mandatory on the part of the applicant to comply with the provisions of the Act of 2006, Rules and Regulations before conducting the business of manufacturing and selling of "Packaged Drinking Water". It is submitted that in view of the judgment of the High Court of Karnataka in the case of Lochamesh B. Hugar, President Vs. Union of India (supra), even the manufacturing and sale of drinking water in containers or jars will be covered in the definition of, "Packed Drinking Water". It is submitted that in view of the judgment of the High Court of Karnataka in the case of Lochamesh B. Hugar, President Vs. Union of India (supra), even the manufacturing and sale of drinking water in containers or jars will be covered in the definition of, "Packed Drinking Water". It is submitted that, at this stage, the defence of the applicant that the activity carried out by the applicant is not covered by the provisions of the Act of 2006, need not be gone into as the said issue needs to be adjudicated upon at the trial. He submitted that at this stage of the criminal proceedings, while entertaining prayer for quashing of First Information Report, the Court would not sift the material already on record, as required at the time of trial and if the F.I.R. and other material on record make out the offences as alleged by the prosecution, this Court would lay its hands off and refrain from exercising its jurisdiction under Section 482 of the Code of Criminal Procedure. He submitted that in the facts and circumstances of the present case and considering the material on record, initiation of criminal proceedings cannot be said to be faulted and, therefore, the application being without any merit is liable to be dismissed. 18. The scope and reach of the powers of this Court under Section 482 of the Code of Criminal Procedure in entertaining the prayer for quashing criminal proceedings are well defined. The fundamental test is to ascertain whether taking the allegations in the complaint to be true, without adding or subtracting anything at the stage of a challenge to the maintainability of the proceedings, prima facie, the case for trial, has been made out. It is only on such examination, the answer has to be in the negative and, then an interference in exercise of power under Section 482 of the Code of Criminal Procedure, for quashing the said proceedings is called for. The High Court, at this juncture, is not called upon to invoke an exercise to inquire into the truth or otherwise of the allegations made. The limited scrutiny is, for being satisfied, whether the allegations made in FIR disclose cognizable offence or not. 19. The High Court, at this juncture, is not called upon to invoke an exercise to inquire into the truth or otherwise of the allegations made. The limited scrutiny is, for being satisfied, whether the allegations made in FIR disclose cognizable offence or not. 19. The Apex Court has repeatedly sounded a note of caution to the effect that the power of quashing criminal proceedings should be exercised very sparingly and with circumspection that too in the rarest of rare case. In emphatic words, it has been laid down that the Court would not be justified in embarking upon an inquiry as to reliability, genuineness or otherwise of the allegations made in the First Information Report and that the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. The power can be exercised only when the Court comes to the conclusion that there would be manifest injustice or there would be an abuse of process of the Court and not otherwise. It is not open for the Court in exercise of such powers to scrutinize the allegations by sifting the evidence or appreciate the same and come to the conclusion that no prima facie case is made out or whether the allegations are likely to be up-held in the trial. 20. In the backdrop of above position of law settled by the Apex Court, we have scrutinized the contents of F.I.R., initiated against the applicant. The allegations in the F.I.R., specifically state that the applicant is selling 18 liters Jar for Rs.30/- in the city. On 06.04.2013 an order was issued not to continue with the business of selling water without complying with the BIS standards and the provisions of the Act of 2006 but, in-spite of receipt of said order, the applicant continued his business. On 07.05.2013 an inspection of the undertaking of the applicant was carried out and it was found that drinking water was being sold without complying with BIS standards and the provisions of the said Act. Drinking water was packed in jars/containers with rolling lids and was sold for Rs.30/-. 21. In our opinion, the allegations in the F.I.R., prima facie, fulfill the ingredients of offences under Sections 34, 55 and 63 of the Act of 2006 and Section 188 of the Indian Penal Code. 22. Drinking water was packed in jars/containers with rolling lids and was sold for Rs.30/-. 21. In our opinion, the allegations in the F.I.R., prima facie, fulfill the ingredients of offences under Sections 34, 55 and 63 of the Act of 2006 and Section 188 of the Indian Penal Code. 22. It is the main contention of the applicant that the water was transported in cans/containers to various consumers; and the containers are not sealed. Therefore, the water sold in unsealed containers was not, "Packaged Drinking Water" as contemplated by the provisions of the Act of 2006. In the reply dated 14.2.2014 in paragraph nos.4 and 5, the non-applicant nos.2 and 3 have specifically stated that the applicant is carrying out the business of processed drinking water (Packaged Drinking Water) without following the Act of 2006 and Rules and Regulations. Prima facie, reliance is placed by the non-applicant nos.2 and 3 on the judgment of the High Court of Karnataka in the case of Lochamesh B. Hugar, President Vs. Union of India (supra), wherein the High Court of Karnataka in paragraph 32 has laid down as under: "32. At this stage itself, we would appropriate to delve upon the contention raised by some of the manufacturers that packing the processed water in a container or can would not come within the definition of 'packaged drinking water' and it would be outside the scope of Food Safety and Standards Act, 2006. While interpreting a word in a statute particularly a statute which concerns the safety of human beings as in the case on hand the words used in the statute have to be given liberal interpretation and not restrictive meaning. Merely because some of the manufacturers are supplying the processed water in containers and as such it would not become packaged drinking water as defined under section 3(zh) of FSS, Act has to be held absurd as it would result in stretching logic to an ill-logical end or in other words such proposition is to be construed as one of fallacy. As noticed from the words used in the definition clause of FSS Act, 2006 namely Section 3(zh) it has brought within its purview to mean and include the words used therein i.e., Pre-packed box, bottle, casket, tin, barrel, case, pouch, receptacle, sack, bag, wrapper or such other things in which an article of food is packed and the Parliament has consciously used the words "such other things" in which an article of food can be packed and it would necessarily mean to include the containers also. We are of the view that the Doctrine of Noscitur a sociis (the meaning of the word is to be adjudged by the company it keep), which rule is wider than the rule of ejusdem generic, would aptly to the words "such other things" on hand. This rule according to Maxwell means when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take as it were their color from each other, i.e., the more general is restricted to a sense, analogous to a less general. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. In the instant case it has been contended that the word 'container' is not to be found in the definition clause namely section 3(zh) which defines what a package means and as such these manufacturers are not exigible to the provisions of FSS Act. If such proposition is accepted then the very purpose of the Act gets truncated or negated, in as much as the legislature have consciously used the phrase 'such other things' after the words pre-packed box, bottle, cascade, tin barrel, case, pouch, receptacle, sack, bag, wrapper, which can only mean and include that the food article should hold in those items or which is capable of being packed and stored in any other form. The word 'container' is of the genes of box, bottle, barrel, etc., and 'container' is of the same family and as such the word 'container' cannot be excluded from the definition clause". 23. From the material available on record, prima facie, scrutiny of material shows that disputed factual aspects are required to be examined and adjudicated upon. The word 'container' is of the genes of box, bottle, barrel, etc., and 'container' is of the same family and as such the word 'container' cannot be excluded from the definition clause". 23. From the material available on record, prima facie, scrutiny of material shows that disputed factual aspects are required to be examined and adjudicated upon. We are of the opinion that this is not a case where the trial is not required and the prosecution against the applicant should be thrown out at this stage. At this stage, it is difficult to conclusively decide as to whether drinking water manufactured by the applicant was sold in sealed condition or not. For that purpose, the prosecution needs to be granted an opportunity of leading evidence at the trial. 24. In the F.I.R. there is allegation regarding water being packed by rolling lids in a container. In the FIR, the word, 'sealed jar' is not there but, the same will have to be considered at the stage of trial by granting an opportunity to the prosecution to prove its case, particularly, in view of the judgment of the Apex Court in the case of Superintendent of Police, C.B.I. and others Vs. Tapan Kumar Singh, (2003) 6 SCC 175 , wherein the Apex Court has elaborately dealt with the nature and purpose of F.I.R. It was, inter alia, observed as follows: "20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can. 22. The High Court has also quashed the GD entry and the investigation on the ground that the information did not disclose all the ingredients of the offence, as if the informant is obliged to reproduce the language of the section, which defines "criminal misconduct" in the Prevention of Corruption Act. In our view the law does not require the mentioning of all the ingredients of the offence in the first information report. In our view the law does not require the mentioning of all the ingredients of the offence in the first information report. It is only after a compete investigation that it may be possible to say whether any offence is made out on the basis of evidence collected by the investigating agency." 25. An overall perusal of the material placed before us makes out prima facie case against the accused, which is required to be decided by conducting a proper trial. At this stage, we cannot analyze and meticulously consider the evidence and anticipate whether it will end up in conviction or acquittal. This is not a stage to decide whether there is any truth in the allegations made but, to form an opinion whether based on the allegations, cognizable offence as alleged has been prima facie made out. The guilt or otherwise of the accused - applicant can be proved only after conducting a full-fledged trial. In the circumstances, it is not proper for us to interfere with the proceeding and quash the F.I.R. 26. Insofar as validity of the order dated 06.04.2013 passed by the non-applicant no.2 is concerned, the order is self-speaking order, wherein it has been stated on inspection being carried out by 08.03.2013, it was found that without obtaining license under the provisions of the Act of 2006 or Certificate of BIS, R.O. drinking water was being manufactured for sale, the drinking water was stored in the plastic jars with rolling lids, the drinking water was not tested in the undertaking/unit of the applicant and was sold without any label. It is stated that this act of the applicant was in breach of the provisions of the said Act of 2006 and was affecting public health and public interest. Therefore, the impugned order was issued not to carry out the said business till the provisions of the Act of 2006, Rules and Regulations were complied with. Since, the order dated 06.04.2013 was issued based on the inspection report and there was no serious dispute about the fact that the applicant was not having means to maintain standards of safety, the issuance of the order cannot be faulted with. 27. Since, the order dated 06.04.2013 was issued based on the inspection report and there was no serious dispute about the fact that the applicant was not having means to maintain standards of safety, the issuance of the order cannot be faulted with. 27. By applying the legal principles enumerated by catena of decisions of the Apex Court and the judgment of the High Court of Karnataka, we cannot persuade ourselves to hold that continuance of proceedings would result in abuse of process of the Court. Therefore, we find no merit in the application and the same is dismissed.