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Judgment
V.M. Jain, J.—This is a petition u/s 482 Cr. PC filed by the accused petitioner, seeking quashment of the criminal complaint u/s 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and also seeking quashment of the order dated 2.8.2000 passed by the Addl. Chief Judicial Magistrate while ordering the framing of the charge under the aforesaid sections.
Annexure P-2 is the copy of the criminal complaint, title as Food Inspector v. Amarjit Sharma and others, filed by Dr. Charanjit Pal Garg, alleging therein that he had been authorised to launch prosecution, vide Punjab Government notification dated 23.5.1989. It was also alleged by Dr. Charanjit Pal Garg that he was appointed as Food Inspector under the provisions of the Act for whole of the State of Punjab and for all the local areas of District Bathinda, vide Punjab Government Notification dated 29.11.1982. It was further alleged by him that on 16.9.1997 he had inspected the premises of co-accused Amarjit Sharma at Kamal Cinema, Bathinda and found him in possession of 20 packets of 45 grams each of the Ruffles Lays potato chips for human consumption. It was further alleged that after disclosing his identity as Food Inspector, he had demanded a sample of potato chips by serving notice and thereafter had purchased 5 packets (45 grams each) of potato chips from co-accused Amarjit Sharma against payment of Rs. 60/- for analysis. It was further alleged that each sample was properly sealed etc. and the signatures of the accused were also obtained on each sealed packet and one sealed packet of the sample was sent to the Public Analyst, Punjab, Jalandhar in a sealed cover alongwith a copy of Form VII bearing the seal impression and another copy of Form VII bearing the seal impression was also sent to Public Analyst separately in a sealed cover. It was further alleged that the remaining two parts of the sample were deposited with the Local Health Authority, Bathinda. It was alleged that as per the report of the Public Analyst, the samples were not labelled in accordance with the provisions of Rule 32 of the Act and these samples were misbranded. It was alleged that co-accused Amarjit Sharma had committed the aforesaid offence being found in possession of the aforesaid potato chips while co-accused Promod Kumar had been impleaded as owner of the canteen and thus the person responsible for the conduct of the business, while co-accused Darshan Singh had been impleaded in the case because he was stockist of the said product, while the General Manager, Pepsi Foods Limited had been impleaded because he was manufacturer of the said product.
Annexure P-3 is the copy of the order dated 2.8.2000 passed by the learned Addl. Chief Judicial Magistrate, Bathinda, vide which all the aforesaid accused were ordered to be charged u/s 16(1)(a)(i) of the Act having violated Section 7 of the said Act. The present petition u/s 482 Cr. PC has been filed by accused petitioner Bhupinder Singh, General Manager, Pepsi Foods Limited, seeking quashment of the aforesaid criminal complaint and the aforesaid order dated 2.8.2000 passed by the learned Magistrate ordering the framing of charge against the accused persons.
In the present petition u/s 482 Cr. PC, it has been alleged by accused petitioner Bhupinder Singh, General Manager, Pepsi Foods Limited, that the complainant Food Inspector had no authority and was not competent to launch prosecution for an offence under the Act. It was alleged that the Food Inspector had launched prosecution on the strength of notification dated 23.5.1989, but the same was not sufficient to empower Dr. Charanjit Pal Garg to launch prosecution. Reliance was placed on the law laid down by their Lordships of the Hon''ble Supreme Court in the case reported as A.K. Roy and another v. Slate of Punjab and others, 1948-1997 Supreme Court on Food Adulteration Cases 892. It was further alleged that the prosecution had been launched against the accused for non-compliance of the provisions of Rule 32 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules). It was alleged that in fact Rule 32 of the said Rules had been found to invalid by the Hon''ble Supreme Court, in Dwarka Nath and another v. Municipal Corporation of Delhi, 1972 FAC 1.
In the written reply filed by Dr. Charanjit Pal Garg, Food Inspector on behalf of the State of Punjab it was alleged that the complainant Food Inspector was duly authorised for instituting prosecution for any offence committed under the said Act, by the State Government, vide notification dated 23.5.1989, copy Annexure R-1. It was alleged that the observations made by the Hon''ble Supreme Court in the case reported as A.K. Roy (supra) were not disputed but it was alleged that the present complaint had been filed on the basis of authorisation of the State Government and not by the delegated authority and as such complaint was validly instituted. It was alleged that the accused had violated the provisions of Rule 32 of the Rules as the sample was found misbranded by the Public Analyst. It was alleged that all the points raised by the accused were considered by the Magistrate while framing of charge against the accused.
I have heard the learned counsel for the parties and have gone through the record carefully.
The only point raised before me by the counsel for the accused petitioner during the course of arguments was that the prosecution launched by Dr. Charanjit Pal Garg, Food Inspector was invalid, as the notification on the basis of which the Food Inspector had launched prosecution, did not empower the Food Inspector to file the criminal complaint. It was submitted that a Food Inspector has to be validly appointed u/s 9 of the Act and in the absence thereof, he was not competent to take the sample.
Reliance was placed on the law laid down by the Hon''ble Supreme Court, in the case reported as A.K. Roy and another (supra) and also on the law laid down by Gujarat High Court, in the case reported as Arvindbhai Motibhai Patel v. Hargovind Parshottam Patel and another 1972 FAC 346.
In A.K. Roy''s case 9 supra), the question before the Hon''ble Supreme Court was as to whether the Food Inspector Faridkot was competent to lodge a complaint against the accused appellants u/s 20(1) of the Act for the commission of offence punishable u/s 16(1)(a)(ii) of the said Act by virtue of the delegation of powers by the Food (health) Authority Punjab under notification dated September 7,1992, purported to have been issued under Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958. In the reported case, the Hon''ble Supreme Court noticed that the Food Inspector had been conferred powers of the State Government u/s 20(1) of the Act to initiate prosecution by the Food (Health) Authority i.e. Director of Health Services. It was also noticed by the Hon''ble Supreme Court that a perusal of the notification dated September 7,1972 would make it manifest that it was Director Health Services and not the State Government who had authorised the Food Inspector to launch prosecution for an offence under the said Act. It was under those circumstances that it was held by the Hon''ble Supreme Court that it was, therefore, clear that the Food Inspector was not a person who had been authorised by any general or special order issued by the Central Government or the State Government. It was further held that there would be no problem if the State Government were to issue a notification u/s 20(1) of the Act conferring authority on the Food Inspector, u/s 20(1) to launch prosecution for an offence under the Act. It was further held by the Hon''ble Supreme Court that a careful analysis of the language of Section 20(1) of the Act clearly shows that for institution of prosecution for an offence under the Act, one of the two conditions is to be fulfilled. Either the prosecution must be instituted by the Central Government or the State Government or a person authorised in that behalf by the Central or State Government, or the prosecution must be instituted with the written consent of any of the specified categories of authorities or persons. It was further held that if either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act. It was further held that the provision contained in Section 20(1) of the Act does not contemplate the institution of a prosecution by any person other than those designated. The terms of Section 20(1) of the Act do not envisage further delegation of powers by the person authorised except that such prosecution may be instituted with the written consent of the Central Government or the State Government or the person authorised. It was further held by the Hon''ble Supreme Court that it must therefore follow as a logical consequence that Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 must be read subject to the provisions contained in Section 20(1) of the Act and cannot be construed to authorise sub-delegation of powers by the Food (Health) Authority, Punjab to the Food Inspector. Re-sultantly, the notification dated 7.9.1972 issued by the Food (Health) Authority was declared as ultra vires, in so far as Food (Health) Authority purported to delegate his powers to institute prosecution for an offence under the Act u/s 20(1) of the Act to the Food Inspector. It was further held that thus the Food Inspector, Faridkot was not competent to lodge the complaint against the accused appellants.
In the present case, it was specifically mentioned by the Food Inspector in the criminal complaint Annexure P-2 that he was appointed as Food Inspector for the whole of State of Punjab and for the local areas of Distt. Bathinda, vide notification 29.11.1982 u/s 9 of the Act. It was further alleged by him in the criminal complaint that he had been authorised to launch prosecution under the said Act vide Punjab Govt. Notification dated 23.5.1989. Annexure R-l is the copy of the Punjab Govt. notification dated 23.5.1989, issued u/s 20(1) of the Act, issued in the name of President of India, whereby the various persons named in the said notification including Dr. Charanjit Pal Garg were authorised to institute prosecution for an offence committed under the provisions of the aforesaid Act, not being an offence u/s 14 or 14-A of the said Act. As referred to above, in the criminal complaint, it was specifically mentioned that the complainant Dr. Charanjit Pal Garg had been appointed as Food Inspector for whole of the State of Punjab and for the local areas of Distt Bathinda, vide Punjab Govt. notification dated 29.5.1982. This appointment had taken place u/s 9 of the Act whereby the Central Government or State Government by notification in the official gazette was competent to appoint such persons as it may think fit to be Food Inspectors for such local areas as may be assigned to them by the Central Government or State Government. Thus, Dr. Charanjit Pal Garg was appointed as Food Inspector for the State of Punjab and for the local area of Distt. Bathinda, vide Punjab Govt. notification dated 29.5.1982, u/s 9 of the said Act. u/s 20(1) of the Act, Dr. Charanjit Pal Garg was duly authorised by the State Government to launch prosecution under the provisions of the said Act. As referred to above, the notification dated 23.5.1989, copy Annexure R-l, had been issued by the Secretary to Government of Punjab in the name of President of India and was published in the Punjab Government Gazetted dated 2.6.1989. In this view of the matter, in my opinion, it could not be said that Dr. Charanjit Pal Garg was not competent to launch prosecution against the accused petitioners under the provisions of the said Act. The authority A. K. Roy and another (supra), relied upon by the learned counsel for the petitioner, in my opinion, would be of no help to the accused petitioner in view of the prosecution having been launched by Dr. Charanjit Pal Garg in pursuance of the powers derived by him by virtue of the notifications dated 29.11.1982 u/s 9 of the Act and 23.5.1989 u/s 20(1) of the Act.
The authority 1972 FAC 346 (supra), rendered by a Division Bench of Gujarat High Court and relied upon by the learned counsel for the petitioner, in my opinion, would be of no help to the accused petitioner. In the reported case, the Gujarat High Court had held that the conferment of the power to institute prosecution by the Central or State Government would not necessarily carry the power to consent to the filing of such prosecution and that the prosecution filed by any person without the written consent of such a person who has not been expressly authorised to consent to the filing of such prosecution would be bad. In this authority of Gujarat High Court, the law laid down by the Hon''ble Supreme Court in A.K. Roy''s case (supra) was not considered. In my opinion, this judgment of the Gujarat High Court, with due respect, runs counter to the law laid down by the Hon''ble Supreme Court in this regard.
In A.K. Roy''s case (supra), it was held by the Hon''ble Supreme Court as under :-
"A careful analysis of the language of section 20(1) of the Act clearly shows that in institution of prosecutions for an offence under the Act except on fulfillment of one or the other of the two conditions. Either the prosecutions must be instituted by the Central Government or the State Government or a person authorised in that behalf by the Central Government or the State Government, or the prosecutions should be instituted with the written consent of any of the four specified categories of authorities or persons. If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act. The provision contained in Section 20(1) of the Act does not contemplate the institution of a prosecution by any person other than those designated. The terms of Section 20(1) do not envisage further delegation of powers by the person authorised, except that such prosecution may be instituted with the written consent of the Central Government or the State Government or the person authorised. The use of the negative words in Section 20(1) "No prosecution for an offence under this Act shall be instituted except by or with the written consent of plainly" make the requirements of the section imperative."
In the present case, as referred to above, the prosecution was launched by Dr. Charanjit Pal Garg, Food Inspector, who had been authorised in that behalf by the Punjab Government. Under these circumstances, the requirement of Section 20(1) of the Act is fully complied with and it could not be said that Dr. Charanjit Pal Garg was not authorised to launch prosecution against accused petitioner.
With regard to rules 32(e) and 32(f) of the Rules, no arguments were raised before me by the learned counsel for the petitioner and in my opinion, rightly so, in view of the amendment to Section 23 of the Act, by virtue of Act No. 34 of 1976 w.e.f. 1.4.1976 and in view of the substitution of Rule 32 vide notification dated 29.4.1987 w.e.f. 30.4.1989 and in view of the law laid down by the Hon''ble Supreme Court, in Dwarka Nath''s case (supra), being not applicable after the aforesaid amendment to the Act and substitution of the Rules, as laid down by this Court, in Crl. M. No. 17026-M of 2001 titled as Surinder Nath Sood v. U. T. Chandigarh, decided on 18.5.2001.
In view of my detailed discussion above, finding no merit in this petition, the same is hereby dismissed.
Petition dismissed.