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2021 DIGILAW 16 (RAJ)

Mohan Das Sindhi v. State of Rajasthan

2021-01-05

SANDEEP MEHTA

body2021
JUDGMENT : Sandeep Mehta, J. 1. Heard learned counsel representing the parties. Perused the material available on record. 2. The instant misc. petition has been filed by the petitioners herein for assailing the order dated 17.05.2012 passed by the learned Additional Sessions Judge (Fast Track) No. 3, Jodhpur Metropolitan in Revision No. 04/2012 (56/2012) whereby, the learned revisional court dismissed the revision petition of the petitioners and affirmed the order dated 24.02.2012 passed by the learned Metropolitan Magistrate No. 3, Jodhpur Metropolitan in Criminal Case No. 384/2007 framing charge against the petitioners for the offences under Sections 420 and 272 of the IPC and Sections 63 and 65 of the Copyright Act, 1957. 3. Succinctly stated the facts relevant and essential for the disposal of this misc. petition are noted here in below:- The SHO, Police Station Sadar Kotwali, Jodhpur received an information on 07.05.2007 that the petitioner Bharat Kumar and his associates of the firm Vashudev & Company Limited situated at Sardar Market, Ghantaghar, Jodhpur were selling spurious ghee representing it to be pure and in this manner, they were cheating the public. The Food Inspector was intimated to reach the spot. Accordingly, the SHO, Police Station Sadar Kotwali as well as the Food Inspector, Jodhpur reached the premises of the firm Vashudev & Company Limited. The petitioner Bharat Kumar was found present in the shop. While the police officials undertook the search, Mohandas also arrived there and became alarmed on seeing the police party. The search of the firm's premises was made by the police officers in the presence of motbirs and Food Inspector. Empty and filled tins of ghee, iron caps, packing machine, pasteboard of cartons, labels of numerous companies, etc. were found inside the premises which were seized. Both the accused persons were arrested and brought to the Police Station Sadar Kotwali, Jodhpur where, FIR No. 72/2007 came to be registered against them for the offences under Sections 420 and 272 of the IPC and Sections 63 and 65 of the Copyright Act. 4. were found inside the premises which were seized. Both the accused persons were arrested and brought to the Police Station Sadar Kotwali, Jodhpur where, FIR No. 72/2007 came to be registered against them for the offences under Sections 420 and 272 of the IPC and Sections 63 and 65 of the Copyright Act. 4. It may be stated here that the Food Inspector also collected samples from the food article styled to be ghee and after receiving the report of the Public Analyst, a complaint has been filed against the petitioner No. 1 Bharat Kumar in the court of the Chief Judicial Magistrate, Jodhpur for the offences under Section 7/16 of the Prevention of Food Adulteration Act, 1954. As per the report of the public analyst, the sample of food article (ghee) was found to be adulterated upon analysis but no opinion was given that it was spurious or injurious to health. In the present case registered on the police report, one sample of the food article styled to be ghee was forwarded to the State Central Public Health Laboratory from where a report dated 05.06.2007 was received with the following opinion/conclusion: "The sample of ghee bearing L(H)A Code & Sl. No. M-3529 is adulterated as it does not conform to the prescribed standards of PFA Rules, 1955." 5. Be that as it may. After concluding investigation, the investigating officer proceeded to file a charge-sheet against the petitioners for the offences under Sections 420 and 272 of the IPC and Sections 63 and 65 of the Copyright Act, 1957. The learned Magistrate, framed charges against the petitioners for these very offences by order dated 24.02.2012. Being aggrieved of the order dated 24.02.2012 passed by the learned Magistrate, the petitioners preferred a revision petition which was dismissed by the learned revisional court vide order dated 17.05.2012. Thereupon, the petitioners have approached this Court by way of this misc. petition under Section 482 Cr.P.C. seeking quashing of the impugned orders and all proceedings sought to be taken against them in furtherance thereof. 6. Shri Hastimal Saraswat, learned counsel representing the petitioners vehemently and fervently contended that prima facie ingredients of the offences alleged are not made out against the petitioners. petition under Section 482 Cr.P.C. seeking quashing of the impugned orders and all proceedings sought to be taken against them in furtherance thereof. 6. Shri Hastimal Saraswat, learned counsel representing the petitioners vehemently and fervently contended that prima facie ingredients of the offences alleged are not made out against the petitioners. No one had made any complaint regarding the petitioners selling spurious/adulterated ghee by branding/styling the same to be pure nor was any witness examined by the I.O. during the course of investigation who claimed to have been cheated by the petitioners in this manner. He thus urged that for want of even a shred of evidence to the effect that the petitioners cheated anyone by selling spurious or misbranded ghee, the charge under Section 420 of the IPC could not have been framed against the petitioners because necessary ingredients thereof are not made from the entire material/evidence collected by the I.O. during investigation. Regarding the charge under Section 272 IPC, the contention of Shri Saraswat was that as the Forensic Laboratory has not given any opinion in the analysis report dated 05.06.2007 that the sample of the ghee in question was adulterated so as to make it noxious, charge under Section 272 IPC could not have been framed against the petitioners. So far as the charges under Sections 63 and 65 of the Copyright Act are concerned, the submission of Shri Saraswat was that there was no complaint of anyone either before lodging of the FIR or during investigation that its branding or copyright was being misused by the petitioners on the packaging of the food article in question. He urges that for a prosecution under the provisions of the Copyright Act, it is an essential requirement that there should be a complaint of the holder of a copyright that the accused misused the same by using similar or deceptive marks. He urged that as there is no material on the record of the case to establish violation of copyright, cheating and sale of noxious food article, the order framing charges and all proceedings sought to be taken thereunder are grossly illegal and amount to an abuse of process of law. Hence, the same deserves to be quashed and set aside. 7. Hence, the same deserves to be quashed and set aside. 7. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the petitioners' counsel and urged that the grounds laid forth for assailing the impugned orders can only be appreciated after evidence is recorded at the trial. However, learned Public Prosecutor was not in a position to dispute the fact that for the very same set of allegations, a criminal prosecution has been instituted against the petitioner No.1 Bharat Kumar for the offences under the Prevention of Food Adulteration Act and Rules on the basis of a complaint filed by the Food Inspector in the court concerned. It was also not disputed that neither was the questioned search and seizure proceeding initiated on the basis of complaint of any known person that the petitioners were selling spurious or misbranded food articles nor did the investigating officer collect the evidence of even a single witness during the course of investigation who claimed to have been cheated by the petitioners by the sale of adulterated ghee. Thus, I am of the firm opinion that there does not exist even a semblance of evidence on the record of the case for justifying the framing of charge against the petitioners under Section 420 IPC as necessary ingredients of the offence are totally lacking from the admitted prosecution case. Section 272 IPC reads as below: "272. Adulteration of food or drink intended for sale.-- Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." Noxious is not defined in the penal code and thus, dictionary meaning thereof would hold the field. Noxious is defined as "harmful, poisonous or very unpleasant". After a perusal of the statutory provision, it is clear that prosecution for the above offence can be initiated only if anyone is found adulterating any article of food or drink so as to make the article noxious. The word 'noxious' means harmful or poisonous as per its dictionary meaning. Noxious is defined as "harmful, poisonous or very unpleasant". After a perusal of the statutory provision, it is clear that prosecution for the above offence can be initiated only if anyone is found adulterating any article of food or drink so as to make the article noxious. The word 'noxious' means harmful or poisonous as per its dictionary meaning. An adulterated article of food would not necessarily be considered as harmful, poisonous or noxious so as to make it unfit for human consumption. Thus, for institution of prosecution under this provision, there has to exist scientific or other evidence that food articles concerned contained some noxious component. There is absolutely no such opinion in the chemical examination report referred to supra. In this background, the trial court committed grave legal and factual error while framing charge against the petitioners for the offence under Section 272 of the IPC. 8. So far as the charges under Sections 63 and 65 of the Copyright Act are concerned, since there is no grievance of any copyright holder regarding infringement thereof by the petitioners, manifestly, the charge under Sections 63 and 65 of the Copyright Act is unsustainable in the eyes of law. 9. As a consequence of the above discussion, the impugned order framing charges and also the order rejecting the petitioners' revision cannot be sustained as the same suffer from gross illegality and cannot but be termed to be a gross abuse of process of law. 10. Accordingly, the misc. petition deserves to be and is hereby allowed. The impugned order dated 17.05.2012 passed by the learned Additional Sessions Judge (Fast Track) No. 3, Jodhpur Metropolitan in Revision No. 04/2012 (56/2012) and the order dated 24.02.2012 passed by the learned Metropolitan Magistrate No. 3, Jodhpur Metropolitan in Criminal Case No. 384/2007 and all proceedings sought to be undertaken against the petitioners in furtherance thereof are hereby quashed. Stay application stands disposed of.