Atam Sales Corporation vs State of H.P.

V.P. Gupta, J.—By this order Cr.M.P. (M) No. 88 of 1983 (M/s Atam Sales Corporation v. State) and Cr.M.P. (M) No. 89 of 1983 (M/s Allana Oil Mills v. State) shall be disposed of, as the questions of fact and law involved in both the petitions are the same.

These petitions have been filed u/s 482 Code of Criminal Procedure for quashing the proceedings/complaint initiated against the Petitioners and others u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (hereinafter called the Act) in the court of Sub-Divisional Judicial Magistrate, Dehra.

The facts in brief are that the Food Inspector purchased a sample of R.B.D. Palm Oil (imported), on 25-3-1980 from Shri Mata Parshad (an accused in the case) at village Nagrota Surian. After purchase the sample was divided into three equal parts and notices etc. were given to the accused (Mata Parshad and M/s Chandi Ram Ram Narain accused) in the presence of the witnesses. The sample was sent for analysis and ultimately it was found from the report of the public analyst that the sample contained more free fatty acids, that is 0.54 per cent against the maximum prescribed standard of 0.25 per cent for R.B.D. Palm Oil (imported). The Food Inspector filed a complaint against M/s Chandi Ram Ram Narain, Oil Meichants, Damtal (accused No. 2) and Shri Mata Parshad s/o Shri Neel Kanth, Shopkeeper, Nagrota Surian, Tehsil Dehra, District Kangra (accused No. 1) in the court of Sub-Divisional Judicial Magistrate, Dehra. Both the accused were summoned by the Judicial Magistrate and while recording the statements it was disclosed that M/s Chandi Ram Ram Narain had purchased the oil in question from M/s Chuni Lal Dev Raj Mahajan of Mukerian, District Hoshiarpur (accused No. 3) on 22-3-1980. The Judicial Magistrate in these circumstances also summoned M/s Chuni Lal Dev Raj (accused No. 3) in the case. Thereafter it was disclosed by Dev Raj in an affidavit that M/s Chuni Lal Dev Raj firm had purchased the oil from M/s Atam Sales Corporation, Ludhiana (accused No. 4). The Judicial Magistrate, therefore, also summoned M/s Atam Sales Corporation, Kesar Ganj, Ludhiana as an accused u/s 20A of the Act. On 24-4-1982 Atma Singh of M/s Atam Sales Corporation, Ludhiana filed an application u/s 20A of the Act that the oil had been purchased from M/s Allana Oil Mills, Bombay (accused No. 5). The Judicial Magistrate in these circumstances also summoned M/s Allana Oil Mills, Bombay vide his order dated 24-4-1982. In this manner the present two Petitioners (accused No. 4 and 5) were impleaded as accused persons in the complaint.

The Petitioners have now challenged the proceedings on the ground that no standard of palm oil (imported) was fixed at the time when the sample of palm oil was purchased from Mata Parshad (accused No. 1), on 25-3-1980. It is further alleged that no standard was fixed at a time when the sample was analysed by the public analyst, that is on 25-4-1980. It is alleged that the standard was fixed on 22-12-1980 vide notification No. G.S.R. 710(E) dated 22-12-1980. This notification reads as follows:

G.S.R. 710(E).-Whereas certain draft rules further to amend the Prevention of Food Adulteration Rules, 1955, wore published as required by Sub-section (1) of Section 23 of the Prevention of Food Adulteration Act, 1954 (37 of 1954) (hereinafter referred to as the said Act) on pages 2444 to 2457 of the Gazette of India, Part II, Section 3, Sub-section (i) dated the 3rd November, 1979 under the notification of the Government of India in the Ministry of Health and Family Welfare (Department of Health) G.S.R. 1321 dated the 18th October, 1979, and amended by notification G.S.R. 9(E) dated 16-1-1980 inviting objections and suggestions from all persons likely to be affected thereby till the 31-3-1980;

And whereas objections and suggestions received from the public on the said draft notification have been considered by the Central Government.

Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 23 of the said Act, the Central Govt. after consultation with the Central Committee for Food Standards, hereby makes the following rules further to amend the Prevention of Food Adulteration Rules, 1955, namely:

(1) These rules may be called the Prevention of Food Adulteration (Sixth Amendment) Rules, 1980.

(2) They shall come into force on the date of their publication in the Official Gazette.

The Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the said rules), in Rule 57, in the table, Under Sub-rule (2), in serial No. 1 after item (i-A), and the entries relating thereto in columns (2) and (3), the following item and entry respectively shall be inserted; namely:

A. 17.19-Palm oil means the oil obtained from Flashy measocarp of fruits of the oil palm (ElaeisGuineensis) tree by the method of expression or solvent extraction. It shall be clear, free from the rancidity, suspended or other foreign matter separated water, added colouring and flavouring substances or mineral oil. It shall conform to the following standards, namely:

(a)Butyro-refractometer reading at 50�or Refractive Index at 50� C 35.5�44.0 1.4491�1.4552

(b) Melting point (capillary Slip method). Not more than 37� C

(c) Iodine value (Waj''s method). 45�56

(d) Saponification value 195�205

(e) Unsaponifiable matter Not more than 1.2 per cent

(f) Free fatty acids (expressed as oleic acid), or Acid value Not more than 5.0 per cent Not more than 10.0.

Palm oil shall be refined before it is supplied for human consumption and it shall be to the standards laid down under item A. 17.15 additionally, it shall have Flash point (Pensky-Marten closed method) not less than 250 C....

The learned Counsel for the Petitioners has raised several other grounds in the petition, but he confines himself to this particular ground for the purposes of the disposal of the present cases.

It is contended that the present petitions are liable to be accepted and the proceedings pending in the court of Judicial Magistrate, Dehra should be quashed on the short ground that standard for palm oil had not been fixed at the time when the sample of the palm oil was purchased from Mata Parshad (accused No. 1) or when this sample was analysed. He contends that as no standard for palm oil was fixed, therefore, the proceedings against the Petitioners are not maintainable and they cannot be held criminally liable under the Act.

The learned Counsel for the Respondent also admitted that the standard of palm oil had not been fixed prior to 22-12-1930. In these circumstances, the learned Counsel could not advance any argument to justify the continuation of the criminal proceedings which had been initiated against the Petitioners.

In 1981 (1) F.A.C. 33 (Jagdish Chandra v. State of U.P.), a sample of Chini Dalchini was purchased by the Food Inspector. This sample according to the report of the public analyst was found to contain cent per cent foreign bark and, therefore, the seller was prosecuted for the same under the provisions of the Act. Finally it was found that the standard was prescribed for Chini Dalchini by a Government notification with effect from 1-7-1979 only. The sample in dispute had been purchased earlier to this notification. The Hon''ble Judges of the Supreme Court observed that the public analyst revealed in his testimony that on the date when the sample was examined, there was no standard prescribed for Chini Dalchini. Such a standard was prescribed for Chini Dalchini by a Government notification with effect from July 1, 1979 only. In view of these circumstances, it was held that the prosecution had failed to prove beyond any reasonable doubt that the article in question was sold as Dalchini and on this short ground the appeal of the seller was accepted.

In 1979 (2) F.A.C. 105 (Harish Kumar v. State of Punjab), a sample of palm oil was purchased but at the time of the purchase of the sample no standard for palm oil had been fixed in the Act and the rules. A learned single Judge of the Punjab High Court held that no standard of the palm oil had been prescribed under the Act and rules, therefore, the seller could not be convicted. The proceedings pending against the seller before the trial court were quashed u/s 482 Code of Criminal Procedure.

Similarly in 1984 (1) F.A.C. 138 (Premier Vegetable Products Ltd. v. State of U.P.), a sample of refined palm oil had been purchased at a time when no standard was prescribed for palm oil under the Act or the rules. A learned single Judge of the Allahabad High Court quashed the proceedings which had been started against the seller in the court of the Magistrate by invoking the powers u/s 482 Code of Criminal Procedure on the ground that the proceedings could not be continued because no standard for refined plam oil had been fixed and it was extremely difficult and impossible to hold in such a case whether there is any deficiency in the sample of such an oil. It was further held that in these circumstances no offence could be said to have been comitteed by the Petitioner.

In view of the aforesaid discussion, the proceedings against the Petitioners cannot survive under the Act because at a time when the sample was purchased or analysed no standard for palm oil (imported) had been fixed and this standard was only fixed on 22-12-1980. There are three other accused persons in the case who have not filed any petition for quashing the proceedings. As I have held that the proceedings against the present two Petitioners cannot take place therefore, in the interes of justice and to prevent an abuse of the process of the court and also to prevent the other accused persons from being unnecessarily harassed by an illegal criminal prosecution, it is just and proper that the proceedings against these three accused, that is, Mata Parshad, M/s Chandi Ram Ram Narain and Chuni Lal Dev Raj in the complaint No. 43-3/80 under the Pure Food Act (Food Inspector v. Chandi Ram and Ors.) should also be quashed.

As a result of the above discussion, the present petitions are accepted and the proceedings against all the accused persons in the criminal complaint No. 43-3/80 pending in the court of Sub-Divisional Judicial Magistrate, Dehra, are quashed.