Hemant Grover vs State of Haryana and Others

Ritu Bahri, J.—This petition u/s 482 Cr. P.C. is for quashing of complaint Annexure P-3 dated 01.2.2008 and order Annexure P-5 dated 22.5.2009 vide which the petitioner is ordered to be summoned to face the trial u/s 16.1(a)(i) of Prevention of Food Adulteration Act, 1954. The petitioner is a dealer, who deals in sale purchase of soda water. He purchased the soda water from M/s Neelkanth Enterprises V.P.O. Danewala; (Malout) and further sells the same to various shopkeepers: on demand and retail invoice No. 938 dated 26.7.2007. He further sold it to Shri Surinder Kumar-respondent No. 3. The said club soda carbonated water is sealed item having been purchased in 100 boxes from M/s Neelkanth Enterprises, Malout. The petitioner is neither to add anything in it nor to extract anything from it, these are purchased in sealed boxes and further sold in sealed boxes. The petitioner is not involved in manufacturing of the club soda.

The Food inspector, Fatehabad visited the shop of respondent No. 3 and took sample of friends club soda carbonated water. The sample was further sent to the public analyst, who vide his report (Annexure P-2) dated 2.11.2007 declared it to be a misbranded one. The complaint (Annexure P-3) u/s 7 and 16.1(a)(i) of the Prevention of Food Adulteration Act was filed before the Judicial Magistrate 1st Class, Fatehabad against respondent No. 3. On the application dated 6.3.2009 (Annexure P-4) made by the Food inspector, the petitioner was impleaded as party. The Judicial Magistrate 1st Class, Fatehabad vide order dated 22.5.2009 (Annexure P-5) impleaded the petitioner and further ordered; to summon him as accused to facar the trial.

Mr. Harpinder Singh, Advocate counsel for the petitioner sought quashing of complaint (Annexure P-3) and the summoning order (Annexure P-5) on the ground that the petitioner has merely a distributor of the club soda. He has purchased this club soda from M/S. Neel Kanth Enterprises. The retail invoice is Annexure; P-1 dated 28.7.2007. The sealed sample collected by the Food Inspector from the shop of Surender Kumar to whom the petitioner had sold the club soda was found misbranded. The proceedings cannot be initiated under the Food Adulteration Act against the petitioner as the product had not been manufactured by the petitioner. The products were sealed and petitioner was merely a distributor of the products.

In reply filed by respondent Nos. 1 and 2 the stand taken is that respondent No. 3 had purchased the friends club soda carbonated water from the petitioner vide bill No. 1999 dated 04.9.2007. He is a necessary party to the complaint. It is also admitted that the petitioner had purchased the club soda vide invoice No. 938 dated 26.7.2007 from M/s Neel Kanth Enterprises, V.P.O. Danewala (Malout).

Once this fact has been admitted by the respondents that the petitioner had purchased the club soda from M/s Neel Kanth Enterprises, the proceedings initiated under the Food Adulteration Act are liable to be quashed against the petitioner. The supreme court in M/s Kisan Beej Bhandar, Abohar versus chief Agricultural officers, Ferozepur 1990 Supreme Court Cases (Criminal) 623 has held that a stockiest/dealer/distributor, involved in the sale of insecticides, cannot be held liable for misbranding of the insecticides and only the manufacturer would be liable. This view has been followed by this court in M/s Vimal and Co. Grain Market, Mullanpur versus State of Punjab 2002 (2) RCR (Criminal) 56 (P & H), followed in the case of Deepak Sharma and others versus State of Punjab 2008 (2) RCR (Cri) 24 and reliance can be safely placed on the case of M/s Punjab Beej Bhandar Bela and another versus state of Punjab through insecticide inspector Ropar 2008 (1) RCR (Cri) 998 wherein also this court quashed the criminal proceedings against the licensed dealer, in the facts of the present case, the same view has been followed by M/s Guru Nanak Pesticides, Nabha and others versus state of Punjab 2010 (1) Cri 888 : 2010 (1) R.C.R. (Cri) 30. the respondents have admitted that the petitioner had purchased the club soda vide bill No. 938 dated 26.07.2007 from M/s Neel Kanth Enterprises, VPO Danewala (Malout), therefore, the respondents can initiate the complaint under the Food Adulteration Act against the manufacturer. The proceedings cannot be initiated against the petitioner. In view of the discussions above, the petition is allowed and the order dated 22.5.2009 (Annexure P-5) summoning the petitioner as accused is quashed qua petitioner.