Dilar Singh vs State of Punjab and anr.

B.S. Yadav, J.

The facts leading to this petition under section 482, Criminal Procedure Code, by Dilar Singh are that on 8th December, 1981 P.W.1 Dr. Kuldeep Singh, invested with the powers of Food Inspector inspected the shop in which the business under the state `Sindhi Shop'' was being carried on Nanak Chand was found present on the shop. After observing due formalities, Dr. Kuldip Singh purchased 600 grams of Haldi powder from a bag lying at the shop. After complying with the other relevant provisions of the Prevention of Food Adulteration Act, 1954 (for short the Act) and the Rules framed thereunder one part of the sample was sent to the Public Analyst, who vide report Exhibit opined that rice structure was seen alongwith Haldi structure on a macro and micro analysis. Total starch found present was 52.05%. The other date is not relevant for the purpose of the disposal of this petition. Thereafter the prosecution was launched against Nanak Chand. The statement of P.W.1 Dr. Kuldip Singh was recorded on 12th December, 1982 on which date he proved the spot memo Exhibit PA in which there is a mention of a bill No. 1066, dated 28th November, 1981 issued by M/s Bhagwan Singh Kartar Singh. In his statement he further stated that Exhibit DA was the same bill which was shown to him at the spot. He also stated that the bag containing Haldi powder was stiched and contained full quantity as mentioned in the bill Exhibit DA. Nanak Chand filed application dated 18th October, 1982 under section 20A of the Act for summoning M/s Bhagwan Singh Kartar Singh and Dilar Singh. In the application the accused had stated that the goods had been sold by Dilar Singh, who was managing the affairs of the Firm and the bill was signed by him (i.e. Dilar Singh) and the goods had been stored by him in the same state as it was sold to him and the bag full and closed when the Food Inspector had taken the sample. He also stated that the adulteration, if any, was the responsibility of M/s Bhagwan Singh Kartar Singh and Dilar Singh. Thereupon the court summoned Bhagwan Singh, Kartar Singh as partners of the firm and Dilar Singh. Dr. Kuldip Singh was again examined on 14th March, 1983. The case was fixed for 30th March, 1983 for framing of the charge. After hearing the parties the learned trial Court ordered that Bhagwan Singh and Kartar Singh could to be made liable for the alleged offender as they had not been proved to be the partners of the Firm nor they had been proved to be incharge of the management of the Firm''s business and, therefore, they could not be attributed knowledge about the quality of the substance sold. He accordingly, discharged Bhagwan Singh and Kartar Singh. However, it was held that Dilar Singh accused only could be said to be incharge of the business of the Firm and, therefore, he cold be tried. A charge under section 16(1)(a)(i) of the Act was framed to the effect that the sample of Haldi powder purchased from Nanak Chand by the Food Inspector, which in turn had been sold by Dilar Singh to him (i.e. Nanak Chand) had been found adulterated on analysis as it contained rice starch as admixture. The prosecution evidence was closed on 20th December, 1983. Both Nanak Chand and Dilar Singh were examined under section 313, Criminal Procedure Code. The case was then adjourned to 17th January, 1984 for defence evidence. Nanak Chand filed application for summoning Accountant/Partner of M/s Bhagwan Singh Kartar Singh with certain documents and the recordkeeper of the SalesTax Department alongwith the declaration form regarding salestax submitted by M/s Bhagwan Singh Kartar Singh for the relevant period. No defence evidence could be recorded as service of the witnesses was not effected. The case was adjourned for a couple of times. In the meantime Dilar Singh filed this petition on 9th February, 1984 for quashing the proceedings against him.

Before proceeding further, I may mention that the petitioner is guilty of concealment of facts. In his petition, he has not at all referred to the order dated 30th March, 1983, passed by the learned trial court by which Bhagwan Singh and Kartar Singh were discharged on the ground that neither they had been proved to be partners of the firm M/s. Bhagwan Singh Kartar Singh nor they has been proved to be incharge of the management of the firm''s business. As noticed earlier, Nanak Chand accused''s plea is that he had purchased the bag containing Haldi powder from Dilar Singh, petitioner, and it was in the same condition in which he had purchased it at the time the Food Inspector took the sample of Haldi powder from that bag.

The learned counsel for the petitioner argued that u/s 20A of the Act, manufacturer distributor or dealer of any article of food can be proceeded against if on the basis of evidence adduced in the trial against the vendor, the Court is satisfied that the manufacturer, distributor or dealer was concerned with the offences. In support of his contention he has cited a couple of authorities and on the basis of that he has argued that a partner or the Managing Director of a firm cannot be joined as an accused in a trial under the Act. It is not necessary to discuss those authorities as that point is undisputed. The Managing Director or a partner of a firm is not supposed to be handling the article of food doing the course of its manufacture. However, if the allegation is to the effect that he is so concerned and handled the article of food during the course of its manufacture then there is no bar in summoning him as an accused u/s 20A of the Act. It is not necessary to discuss this point in detail as Bhagwan Singh and Kartar Singh who had been summoned as partners were discharged. So far as Dilar Singh, petitioner, is concerned there is no evidence that he was a partners of the firm M/s. Bhagwan Singh Kartar Singh, Even if he was a partner of that firm he could be summoned by the Court on the basis of the evidence produced, i.e. Ex PA and DA, application of Nanak Chand accused that it was Dilar Singh who had sold that bag of Haldi to him.

The learned counsel for the petitioner argued that the evidence produced was not sufficient at that stage for summoning Dilar Singh, petitioner, as the bill/cash memo. Ex. DA is still to be proved. In support of this contention, he relied on Sh. Gopal Krishan and Sh. Krishan Chand v. The State 1975 (1) F.A.C 406. In that case, the trial had not yet commenced when the Court summoned the dealer and the manufacturer u/s 20A of the Act. As noticed earlier, in the present case the trial has commenced and Ex. DA had been exhibited. Furthermore, the present petition has been filed after the statement of the accused had been recorded u/s 313, Code of Criminal Procedure. In his statement, Nanak Chand had stated that he purchased the bag in question, vide bill Ex. DA, from M/s Bhagwan Singh Kartar Singh. The statement of an accused u/s 313. Cr.P.C. is admissible in evidence in the case. Moreover Nanak Chand has expressed his desire to lead defence evidence. Even if it is presumed that there is any lacuna in the evidence, considering the stage at which the present petition has been filed I do not think it to be a sufficient ground to quash the proceedings on that score.

The learned counsel for the petitioner next argued that a manufacturer, distributor, dealer can be summoned u/s 20A of the Act only if the vendor is being prosecuted but if the dealer himself is prosecuted then that section has got no application. The argument was that Nanak Chand was a wholesale dealer. This is a question of fact whether he is a dealer or a vendor. Up to this time, no evidence has come on record to show that Nanak Chand is a dealer. As held in Dr. Guneshwer Singh v. The State of Bihar & ors. 1975(1) F.A.C. 143, a dealer is something more than a mere vendor of seller of a particular item of food PW1. Dr. Kuldip Singh has stated that in front portion of the shop of Nanak Chand there were racks on which articles for sale were placed while in the back portion gunny bags containing articles of food were kept. Thus, primafacie Nanak Chand appeared to be a mere vendor, and not a wholesale dealer as argued by the learned counsel for the petitioner.

It was further argued by the leaned counsel for the petitioner that the petitioner has not been named in the complaint filed by the Food Inspector, and, therefore, the Court could not have taken cognizance of the offence against him. Reliance was placed on some authorities. However, the same have no relevance to the present case as the petitioner has been summoned u/s 20A of the Act on the application of the accused after bill Ex. DA had been exhibited. Thus, the name of the petitioner could not have occurred in the complaint.

The learned counsel for the petitioner next urged that section 13(2) of the Act has been violated as after the receipt of the report of the Public Analyst, a copy thereof was not sent to the petitioner nor was he informed that if he so desired he should make an application to the Court within ten days from the date of receipt thereof to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. It was further urged that as Dilar Singh was impleaded after about a year, the right given to the under subsection (2) of section 13 of the Act became illusory on account of delay. This argument also has no force because a copy of the report of the Public Analyst could not have been sent to him as he had not been named as an accused in the original complaint made by the Food Inspector. It was only against Nanak Singh to whom a copy of the report had been sent. The learned counsel has not cited any authority to show that a copy of the report of the Public Analyst has to be sent u/s 13(2) to a person summoned u/s 20A of the Act.

The learned counsel for the petitioner next argued that no written consent for the prosecution of the petitioner had been produced by the prosecution. Reliance, in this behalf, was placed upon section 20(1) of the Act, the relevant portion of which reads as follows :

"20(1). No prosecution for an offence under this Act, not being an offence under Section 14 or Section 14A, shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government."

It was also argued that the prosecution cannot be given any opportunity to produce the sanction. This argument also has no force. Section 20 can be divided into two parts. The first part speaks of the institution of a complaint by or with the written consent of the Central Government or the State Government, and the second part talks of the institution of a complaint by or with the written consent of a person authorised in that behalf by the Central or the State Government. A general authorisation to launch prosecution under the Act is sufficient. Restricted meaning cannot be given to the words, "in this behalf" by holding that the authorisation of the person to initiate proceeding must be with special reference to a particular case under the Act. When a particular Food Inspector is authorised by a general order institute proceedings under the Act, then on receiving the report from the Public Analyst, he could institute the prosecution. It is a settled law that when a person is joined for trial U/s 20A of the Act, no further written consent or sanction is necessary. Up to this time, the authority of Dr. Kuldip Singh to launch the present prosecution against Nanak Chand was not challenged when he appeared in the witnessbox. Therefore, I have not been able to understand how section 20 of the Act helps the petitioner.

The learned counsel for the petitioner next contended that in the present case section 7 (v) of the Act has been alleged to be infringed but the prosecution has been launched about the infringement of section 7(i) of the Act. I am of the opinion that the prosecution which is about the violation of section 7(1) of the Act has been rightly launched. According to section 7(i), no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food. The Public Analyst has found the sample to be adulterated as rice admixture was seen in the sample. It was also argued that the Public Analyst found the rice structure in the sample only after performing macro and micro analysis, and no chemical analysis was done for determination of the fact if there was any rice admixture in the sample. This contention also has, therefore, no force. The learned counsel for the petitioner has not been able to show that there could have been any chemical analysis for the determination of rice structure in the sample. In fact, the Public Analyst is not bound to mention the particulars of the test applied. I this respects, reference be made to Dhian Singh v. Municipal Board, Saharanpur 1973(1) F.A.C. 404 (Supreme Court) wherein it was observed :

"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahabalika of Kanpur v. Sri Ram (1963 All L.J. 765) wherein it is observed: under "that the report of public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954, need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in Section 2(1) of the Act."

The standard of purity of Haldi powder has been given in item No. A. 05.20.01 of the Prevention of Food Adulteration Rules. According to that standard of purity, there should not be admixture of rice in the Haldi powder. According to the report of the Public Analyst, the sample in question was adulterated as it contained rice starch as an admixture.

The learned counsel for the petitioner argued that according to the prescribed standard of purity of Haldi Powder, the percentage of total starch by weight should not exceed 60% but in the present case the sample was found to contain total starch to the extent of 52.02% only and, thus, the total starch did not exceed the permissible limit. As noticed earlier, according to the Public Analyst the `rice starch'' is different from `starch''. If the petitioner thinks that both kinds of starch are not and the same thing, he can examine the Public Analyst in support of his contention. But this is no stage for quashing the prosecution on that ground.

For the forgoing reasons I do not find any force in the present petition filed by Dilar Singh for quashing the proceedings, and, therefore, it is liable to be dismissed.

Now I take up Cr. M. No. 3097/1884. Dilar Singh in the main petition had not made Nanak Chand as a party. Nanak Chand has filed this miscellaneous petition for being impleaded as a party. The learned counsel for Dilar Singh objected to the impleading of Nanak Chand as a party to the present proceedings. Nanak Chand may not be a necessary party to the main petition but in my opinion, he is definitely entitled to be heard because it is he who is being directly affected with the decision of the main petition. He is holding bill Ex. DA issued to him by Dilar Singh. Dilar Singh had been summoned on his application. I think in the interest of justice, Nanak Chand has a right to be heard. Therefore, I allowed his counsel to address the Court, Criminal Misc. No. 3097/1984 is disposed of accordingly.

As held above, the petition of Dilar Singh has no force and it is accordingly dismissed.

The parties are directed to appear in the trial court on 30th August, 1986.