Ajeet Kumar vs The State of Bihar and Another

Abhijit Sinha, J.—The petitioner who happens to be the proprietor of Atithi Mixture Bithal Namkeen Bhandar alongwith another is sought to be prosecuted in Case No. 45(0) of 2004 and aggrieved by the order dated 22.7.2004 passed therein by the learned Chief Judicial Magistrate, Bhojpur at Ara, the petitioner has prayed for the quashing of the said order, whereby cognizance has been taken u/s 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the PFA Act"). According to the prosecution story, the Food Inspector, Bhojpur, Ara, impleaded herein as O.P. No. 2, collected sample by way of purchase of 600 gms. of ''Atithi'' brand dalmoth from the shop of co-accused, Surendra Kumar of Isharhi Bazar, P.S. Jagdishpur, District-Bhojpur at about 2 P.M. on 28.1.2004 for lab analysis. The analysis report dated 1.6.2004 of Public Analyst, Patna, revealed that the said sample of dalmoth was misbranded within the meaning of Sections 2(ix)(J) and (K) of the PFA Act.

In pursuance of the said analyst report the Civil Surgeon-cum-Chief Medical Officer, Ara, on 22.7.2004, sent the prosecution report to the learned Chief Judicial Magistrate, Bhojpur at Ara who took cognizance of the offence by the impugned order against the petitioner and co-accused Surendra Kumar.

The submission on behalf of the petitioner is that his manufacturing organization is at Gaya and there had been no occasion for him to supply any product to co-accused, Surendra Kumar and as such he cannot be made liable for any misbranding or other offences under the PFA Act. It was further submitted that there had been a contravention of the provisions of Section 10(7) of the PFA Act inasmuch as no independent witnesses had been examined in support of the fact of taking of sample from the shop of the petitioner. The further submission was that the Food Inspector had violated Rule 14 of the Rules inasmuch as he had not followed the requirement of the sample being kept in a clean and dry bottle or jar or any other suitable container which should be closed sufficiently tight to prevent leakage, evaporation or in case of dry substance entrance of moisture and should be carefully sealed. The learned counsel for the petitioner further raised a grievance of contravention of Section 8 of the PFA Act inasmuch as the Act defines Public Analyst with reference to such local area as may be assigned by the Central or State Government. The analyst at Patna was not assigned the local area of Bhojpur and as such he had no authority or jurisdiction to give any analysis report in respect of a sample collected in the district of Bhojpur. This fact has not been denied by the State Government and as a matter of fact no counter affidavit has been filed in this case either on behalf of the State or the Food Inspector who has been impleaded herein as O.P. No. 2 and had been duly served with notice.

Due regard being had to the facts and the circumstances of the case, the report of the Public Analyst at Patna cannot be looked into by the learned Chief Judicial Magistrate, Bhojpur at Ara. I am supported in my view by the case of Deep Chand Jain and Others Vs. State of Bihar, . In the result, the application is allowed and the impugned order, so far as the petitioner is concerned, is hereby quashed.