C.H. Satyanarayan vs State

V.K. Shali, J.—This is a petition under Sections 397/401 Cr. P.C. read with Section 482 Cr. P.C. assailing the order dated 3.12.04 passed

by the learned Metropolitan Magistrate directing the framing of charge against the petitioner under Sections 272/273 IPC. Briefly stated, the facts

of the case are that an FIR bearing No. 227/98 u/s 328 IPC was registered by Police Station Hauz Qazi on the basis of the statement of one Ms.

Rekha wherein she had stated that she had bought one pouch and one bottle of dhara kachi ghani mustard oil from a shop and after consuming the

same she fell ill and developed swelling in her legs. The remnants of oil were seized and sent to the public analyst for analysis where the remnants of

the pouch conformed to the standards laid down under PFA rules, however, the remnants of the bottle tested positive for argemone oil which is

injurious to health. After investigation the charge sheet was filed against the present petitioner in his capacity of being the Quality Control Officer of

the National Dairy Development Board. The offence u/s 328 IPC being exclusively triable by the Court of Sessions, the matter was committed to

the Court of Sessions. The Sessions Court vide order dated 19.4.2002 held that charge sheet did not disclose any offence exclusively triable by

Court of Sessions and remanded it to Chief Metropolitan Magistrate. The learned CMM assigned the case to the Court of Metropolitan

Magistrate. After hearing arguments, the learned MM vide order dated 3.2.2004, framed charge under Sections 272/273 IPC against the

petitioner.

I have heard Mr. Dinesh Mathur, the learned senior counsel for the petitioner as well as Ms. Jasbir Kaur, the learned APP for the State and

have also gone through the record.

Mr. Mathur the learned senior counsel for the petitioner has raised three contentions. The first contention which has been raised by the learned

senior counsel is that the offence u/s 272 IPC deals with the situation where a person 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 a 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.

Similarly, it was contended that Section 273 IPC also contemplates that whoever sells, or offers or exposes for sale, as food or drink, any

article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is

noxious 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.

It was contended that by reading of both these Sections it is amply clear that the main ground for putting a person on trial for offences u/s

272/273 IPC, is to show to the Court, prima facie, that it is the petitioner who has adulterated the article of food or drink while as in the instant

case, there is no evidence to show on record that it was the petitioner who had adulterated the mustard oil on account of presence of argemone oil.

It has been contended by the learned senior counsel for the petitioner that he has been enroped for the offences under Sections 272/273 IPC only

in the capacity of Quality Control Officer. It has also been contended that though for an offence of adulteration under Prevention of Food

Adulteration Act a person, who has nothing to do with the offence but has been named as a nominee can be enroped to trial, by way of vicarious

liability but under the Indian Penal Code, a person cannot be charged of an offence of adulteration u/s 272 or 273 IPC unless and until a positive

act or omission is shown on his part coupled with his intention to adulterate which would constitute mens rea and therefore, the order passed by

the learned Magistrate directing the framing of charge against the petitioner, is unsustainable in the eyes of law.

The second contention which was made by the learned senior counsel was to the effect that an offence under Sections 272/273 IPC is a non-

cognizable offence, which cannot be investigated by the local police without complying with Section 155 (2) Cr. P.C. by virtue of which the prior

permission of the Magistrate has to be obtained before initiating the investigation. It was contended that this embargo on the power of police to

investigate the non-cognizable offence could not be circumvented by adding a section like 328 IPC which is a cognizable offence, and thereby,

initiating the investigation into the matter against the present petitioner.

The learned senior counsel for the petitioner has relied upon a judgment of the Apex Court in case titled Basir-ul-huq and Others Vs. The State

of West Bengal, to contend that such a camouflage and use of power to investigate the matter, could not have been done and thus the entire

proceedings are ab initio void.

The third contention raised by the learned senior counsel for the petitioner is that the Sessions Court had discharged the petitioner u/s 328 IPC

and the charges were framed by the learned MM only under Sections 272/273 IPC and since these Sections entail imprisonment for a maximum

period of six months, the Magistrate ought to have taken cognizance within a period of one year of the incident as provided in Section 468 Cr.

P.C. He further submitted that in the instant case FIR is dated 4.9.1998 while as the charge sheet was filed and the cognizance was taken on

28.10.1999, that is, after the expiry of the limitation period and therefore, the prosecution itself was barred by limitation. In order to support his

contention, the learned senior counsel has placed reliance on two judgments of this Court:

Vipin Kalra and Another Vs. State,

Hema Bhalla Vs. State,

The learned APP could not refute any of the submissions made by the learned senior counsel for the petitioner or give any plausible answer. The

learned APP has not been able to show as to how the complaint against the petitioner u/s 272/273 IPC is sustainable when there is no prima facie

evidence against the petitioner having done any act or commission, which resulted in adulteration of oil.

I have carefully considered the submissions made by the learned senior counsel for the petitioner and have gone through the record.

I find merit in the submissions made by the learned senior counsel for the petitioner. So far as the first contention of the learned senior counsel

is concerned, no doubt, Sections 272/273 IPC makes out an offence where a person is responsible for adulteration of any article of food or drink.

It lays that whoever has actually adulterated the article of food or the edible oil will have to be put to trial. But a person cannot be put to trial for an

offence under Sections 272/273 IPC by invoking the provisions of the Prevention of Food Adulteration Act. Under the Prevention of Food

Adulteration Act, the offence of adulteration is a strict liability offence and the offence does not require proof of mens rea while as under Sections

272/273 IPC, a person must have mens rea for being charged. Under the Prevention of Food Adulteration Act, the manufacturing company can

declare a person as a nominee by completing certain pre-requisite formalities. Once these formalities are completed, this nominee would be

responsible, in case, any adulteration in the article of food or the drink is found to be in existence but then the prosecution has to be under the

Prevention of Food Adulteration Act. Similarly, in the event of a Director or the Managing Director being made liable, it has to be established that

the Director is in-charge and responsible for the day to day conduct of the business of the company before he can be charged. There is no dispute

about the fact that the authority which is competent to lodge the prosecution for an offence of food adulteration punishable under the Prevention of

Food Adulteration Act can also resort to Section 272/273 IPC and seek the prosecution of the accused by joining trial for both these offences, but

in the absence of such a joint trial for both these offences, it is not open to the prosecution while initiating a prosecution against an accused for an

offence under Sections 272/273 IPC to resort to the provisions of Prevention of Food Adulteration Act which has been precisely done in the

instant case. Therefore, this is totally against the provisions of law prescribed under the Indian Penal Code.

The second contention of the learned senior counsel is to the effect that Section 155(2) Cr. P.C. puts an embargo on the powers of the

prosecuting agency to investigate a non-cognizable offence. It is not in dispute that both the offences under Sections 272/273 IPC are non-

cognizable offences, and therefore, the said offences could not have been investigated by the police on account of the registration of the FIR. I am

of the view that, the investigation for the aforesaid offence under Sections 272/273 IPC was sought to be camouflaged by the prosecution by

adding Section 328 IPC, knowing well that such a cognizable offence against the petitioner is not made out. The Apex Court in case titled Basir-

ul-huq and Others Vs. The State of West Bengal, has deprecated such a practice being adopted for the purpose of investigation of a non-

cognizable offence. In the said case, it was observed as under:-

It has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there

is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public

servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that

section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the

same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code.

As regards the third contention of the petitioner, I am in agreement with the contention of the petitioner that the prosecution is barred by

limitation, as Section 468 CrPC creates a bar for taking cognizance of the offence after the expiry of the prescribed period of limitation. Section

468 (2) (b) CrPC provides the period of limitation as one year if the offence is punishable with imprisonment for a term not exceeding one year.

The offence under Sections 272/273 IPC is punishable with imprisonment for a term not exceeding six months, thus valid cognizance of the offence

could be taken within the period of one year from the date of commission of the offence, while as, in the instant case the FIR was registered on

4.9.1998 and the charge sheet was filed and cognizance was taken on 28.10.1999. I am of the considered opinion that the bar of limitation

created by Section 468 CrPC cannot be avoided by adding section 328 IPC for which no limitation period has been prescribed. The mere fact

that in the charge sheet certain offences are such for which no limitation period has been prescribed u/s 468 CrPC does not lead to the conclusion

that the court is empowered to take cognizance of the offences which are finally made out against the accused beyond the period of limitation.

In view of the aforesaid facts and circumstances of the case, I am of the considered opinion that the order of framing of charge against the

petitioner under Sections 272/273 IPC, dated 3.12.04 is unsustainable in the eyes of law and is accordingly set aside and further FIR bearing No.

227/1998, u/s 328 IPC registered by PS Hauz Qazi and consequent proceedings also stand quashed. Accordingly, the petition is allowed.