Girdhari Lal vs State of Punjab

Dr. Sarojnei Saksena, J.

By filing this petition under Section 482 read with Section 401 Cr.P.C. and Article 227 of the Constitution of India the petitioneraccused has sought quashment of complaint Annexure P2 and the charge Annexure P3 filed/framed against him under Section 16(i)(a) of the Prevention of Food Adulteration Act, 1954 (as amended by amending Act of 1976) (in short, the Act).

It is apposite at the threshold to give in a nutshell the facts of the complaint Annexure P2 filed against the petitioner in the lower court. The complianant is duly authorised Food Inspector, who inspected the petitioner''s shop on October 15, 1992 at 12.10 p.m. and took a sa.m.ple of mustard oil sarson oil) for analysis, which was duly divided into three parts and was filled in three empty and dried bottles which were duly sealed as per provisions of the Act. One such sample was sent to the Public Analyst for analysis, who gave his report Annexure P1 and opined that the contents of the sample are hazy and in the form of emulsion, whereas sarson oil should be clear and thus gave an opinion that it was adulterated. On the basis of this report complaint Annexure P2 was filed against the petitioner. The learned lower court fra.m.ed charge for the said offence against the petitioner on July 15, 1995.

At the time of arguments, petitioner''s learned counsel has assailed the complaint filed and charge framed against the petitioner only on two counts at the time of arguments; firstly, that before filing of the complaint the complaintant has not obtained sanction under Section 20 of the Act of prosecuting the petitioner, and, secondly, that from the report of the Public Analyst it is evident that he has arrived at a conclusion that the sa.m.ple was adulterated but he has not opined that the sa.m.ple was not fit for human consumption or it contained some impurity to make it injurious for human health. Hence on the basis of such a report the petitioner cannot be indicted for the aforesaid offence. In support of his contentions, he has relied on The State v. Shanti Prakash, 1957 PLR 17; Kashmiri Lal v. State of Punjab, 1984 (II) F.A. C. 195; Gopalchand Porwal v. The State of M.P., 1987 (1) FAC 337 and Jeet Kumar Anand v. State of Punjab, 1990(2) FAC 55. Thus he countenanced that the aforesaid complaint/charge be quashed.

Learned A.A.G. Punjab contended that the complainant was duly authorised by the Government to prosecute the petitioner under Section 20 of the Act. Hence the first assailment is devoid of any substance. So far as the second contention is concerned, he contented that the Public Analyst in his report has clearly mentioned that the contents of the sample are hazy and in the form of emulsion, whereas sarson oil should be clear. Hence he opined that the contents of the sample are adulterated. Learned A.A.G. clarified that Public Analyst Dr. Hargobind Singh is cited as a witness in the complaint. When he will be examined, he will explain how he has arrived at the opinion that the sample was adulterated. Lastly, he contended that time and again the apex Court has held that this power under Section 482 Cr.P.C. should be very sparingly and consciously used. It should be used only in rarest of rare cases where the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised. Unless the Court arrives at that conclusion the High Court should not scuttle the prosecution at its inception. In support of this contention, he has relied on Mrs Rupan Deol Bajaj and another v. K.P.S. Gill and another, JT 1995(7) SC 299.

So far as the first assailment is concerned, from a plain perusal of the complaint Annexure P2 it is evident that in last para the complainant has mentioned that he has been appointed as Food inspector and duly authorised to institute prosecution for an offence under this Act vide Punjab Govt. Health Deptt. Notification No. 10(ID) 87F4HBIV/23496 dated October 12, 1987.

I have gone through the said notification by which the Punjab Government has authorised 211 Officers of the Health Department to launch prosecution under Section 20(1) of the Act. Complainant''s name appears at serial No. 22 in the said notification. Hence it is obvious that the complainant is duly authorised under Section 20(1) of the Act to launch prosecution against the petitioner. Hence this assailment, being meritless, is hereby rejected.

The second assailment is that in the report Annexure P1 the Public Analyst has given the data of his analysis and in the end he has written "And of the opinion that the contents of the sample are hazy and in the form of emulsion whereas sarson oil should be clear. The contents of the sample are hazy and in the form of emulsion whereas sarson oil should be clear. The contents of the sa.m.ple are, therefore adulterated.

No doubt, in Jeet Kumar Anand''s case (supra) a Single Bench of this Court has held that unless the Public Analyst opines that the sample is filthy, putrid, disgusting, rotten, decomposed or insect infested or otherwise unfit for human consumption, it cannot be prima facie held that the sample was adulterated within the meaning of Section 2(ia)(f) of the Act. In that case sample of Haldi powder was taken and from the report of Public Analyst it was not clear whether uric acid test was conducted or not. The Public Analyst''s report revealed that the sample contained five dead insects and two excreta. The Court held that under Section 2(ia) (f) of the Act, unless the Public Analyst opines that the sample of food sent to him was filthy, putrid, rotten, decomposed or insect infested or otherwise unfit for human consumption, it cannot be prima facie held that the sample of Haldi powder taken in this case was adulterated. In this Section 2(ia)(f) the last ground mentioned is "otherwise unfit for human consumption". In Municipal Corporation of Delhi v. Tek Chand Bhatia, 1980 (1) SCC 158 the apex Court has held that expression "or is otherwise unfit for human consumption" is a disjunctive and residuary clause. So if an article of food is proved to be filthy, putrid, rotten, decomposed or insect infested, it can be held to be adulterated without further establishing it to be unfit for human consumption. In Jeet Kumar Anand''s case (supra) the case was considered within the four corners of Section 2(ia)(f) of the Act and hence the complaint was quashed under Section 482 Cr.P.C.

In Kashmiri Lal''s case (supra) sa.m.ple of sweetened aerated water (lemon) was taken. On analysis the Public Analyst opined that the contents are filled in ''Cocacola Coke'' and plain bottle with crown corks described above, l suspended matter present in all the three bottles. The Court held that there was no definite evidence that the suspended matter was due to impurity in the water and hence it cannot be said that the accused sold aerated water, which was injurious to health. The mere presence of microorganism in the water will not make it unfit for drinking unless it is shown that it is likely to cause disease.

In Shanti Prakash''s case (supra) the accused was acquitted under Section 13 of the Punjab Pure Food Act (VIII of 1929). The State filed an appeal. The sample of turmeric was taken from the respondent, which, according to the Public Analyst, was found mixed with ash. The Court held that the ash cannot by any stretch of imagination be called food and ordinarily if ash is mixed with any substance, it must fall within the meaning of word ''adulteration''. The acquittal was set aside. In the end the Court observed "In all these cases where pure food is analysed the Analyst should indicate what is the extent of impurity and what the impurity is. Merely stating that it is highly adulterated with extraneous vegetable matter is not sufficient for the purpose of determining the question of guilt or otherwise of the accused person."

In Gopal Chand Porwal''s case (supra) also the accused was convicted under Section 16 of the Act. Sa.m.ple of ice candy was taken from the accused. On analysis the Public Analyst reported that as per standard no adulteration was found, but it contained impurities like bamboo fibres and other suspended mass noticed in the ice candy, but he did not opine that ice candy was unfit for human consumption. The Court held that such ice candy cannot be held to be adulterated under Section 2(ia)(f) of the Act and hence the accused was acquitted.

1213. Under Rule A.17.06 of the Prevention of Food Adulteration Rule, 1955, constituents of mustard oil are indicated. It mentions that the oil should be extracled from clean and sound mustard seeds, belonging to the compestris. It shall be clear, free from rancidity, suspended or foreign matter, separated water, added colouring or flavoring substances or mineral oil. It is further provided that it shall conform to the standards enumerated therein. From the Public Analyst''s report Annexure P1, quoted above, it is clear that the Public Analyst found that the contents of the sample were hazy and in the form of emulsion, whereas sarson oil should be clear and on that basis the Public Analyst opined that it was adulterated. Under Section 2(ia) the word ''adulterated'' is defined. Whether this sample was adulterated as per the parameters enumerated in Section 2(ia) or not is a question of fact, which can be determined only when the Public Analyst is examined before the lower Court. At the this stage, simply on this ground that the Public Analyst has not mentioned in his report that the sample was unfit for human consumption the complaint cannot be quashed, because this is one of the prerequisites required under Section 2(ia)(f) of the Act only. It is not a parameter for other clauses to determine whether the article of food is adulterated or not.

Exercise of inherent power is exceptional and great care must be taken to scuttle the prosecution at its inception. The trial court has already framed charge against the accused. The complaint and the charge filed/framed against the accusedpetitioner can be quashed only when this Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court. If this power under Section 482 Cr.P.C. is not exercised. It cannot be said that from the complaint the said offence is not prima facie made out. At this stage it is not open to this Court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out against the accused.

Hence the petition under consideration is hereby dismissed, but the trial Court is directed to exa.m.ine the Public Analyst on the first date of hearing and to conclude the trial within three months from the date it receives a copy of this order. Observations made hereinabove will not affect the merits of the case.