Indana Spices & Food Industries Ltd. vs Food Inspector, Bhiwani

G. S. Chahal, J.

M/s Indana Spices & Food Industries Limited (hereinafter referred to as the Manufacturer) through its nominee Sunil Puri has come to this Court in this petition under Section 482 Cr.P.C. for quashing of the proceedings and the complaint pending in the Court of Sh B.S. Rawat. Chief Judicial Magistrate, Bhiwani. under the Prevention of Food Adulteration Act.

The facts may be briefly narrated. On June 23, 1986 at 11:45 a.m. the government Food Inspector inspected the premises of Sh. Nand Kishore and found him to be in possession of 5 packets, each weighing 1 kg. of Mirch powder for public sale. After making demand, he made a purchase of 450 gms of Mirch powder and after dividing it into three parts, bottled, stoppered and scaled the same. One of the samples was forwarded to public analyst, Haryana on 24686 who certified that on microscopic examination, the sample showed presence of rice starch. On the basis of these allegations, the complaint was filed. against Nand Kishore and M/s Anand Kumar and Co. (the dealer). On the request of the vendor. the second sample was sent to the Central. Food Laboratory, who certified it is not free from the presence of extraneous matter identified as paddy husk." During the course of the trial of the complaint accused Vijay Kumar of M/s Anand Kumar & Co., moved an application for summoning of Sh. V.K. Suri, Regional Manager of Indana Spices & Food Industries Ltd. on the allegation that he had direct dealing with him and Mr. Suri represents the manufacturer company. He also placed on record a photostat copy of invoice dated May 17, 1986 showing the purchase of chilly powder from M/s Indana Spices & Food Industries. Ltd. After the summoning of Shri V.K. Suri, it was brought on record that there was a validly appointed nominee of the company. Accordingly Shri V.K. Suri was discharged and in his place Shri Sunil Puri was replaced. The learned CJM appears to have acted under Section 20 (A). This section reads as follows :

"20A. Power of Court to implead manufacturer, etc. Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food the Court is satisfied on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the Court may, notwithstanding anything contained in (subsection (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974), or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20."

To act under the provisions of this Section, the Magistrate had to rely upon the evidence produced and its judicial satisfaction or, the basis of the evidence so produced. In the present case no evidence had been brought forth on the basis of which there could be a satisfaction of the Court. Mere placing of the photostat copy of invoices (the document not admissible perse), he could not have treated the same to be evidence on which he could act. This order dated September 3, 1987 is thus liable to be set aside on this sole ground. In that situation, I have to leave the matter open to the Chief Judicial Magistrate for summoning the petitioner at a later stage after evidence comes forth. However, I am of the view that it is not a proper case where complaint should proceed further either against the present petitioner or the other accused persons namely Nand Kishore and M/s Anand Kumar & Co. The accused persons after appearance before the Court had asked for sending of the second. sample to the Director, Central Food Laboratory, so as to challenge the report of the public analyst. They were so authorised by virtue of Section 13 of the Act. Two subsection of this Section are worth to be noted :

"13 (2A). When an application is made to the Court under subsection (2) the Court shall require the Local (Health) Authority to forward the part, or parts of the sample kept by the said Authority and upon such requisition being made, the said authority shall forward the part orparts of the sample to the Court within `a period of five days from the date of receipt of such requisition.

(2B). On receipt of the part or parts of the sample from the Local (Heath) Authority under subsection (2A), the court shall first ascertain theft the mark and seal or fastening as provided in clause (b) of subsection (1) of Section 11 are intact and the signature or thumb impression, as the case may, be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within onemonth from the date of receipt of the part of the sample specifying the result of the analysis.".

It was the duty of the Chief Judicial Magistrate to have ascertained that the mark and seal or fastening were intact and the signatures or thumb impressions were not tampered with. This fact should appear on the face of his order. From the order Annexure P5, saying that the second sample bottle had been sent to Director Central Food Laboratory and the report be awaited. It is not possible to hold that he had complied with the mandatory requirements of Section 13 (2)(b) or even if he was aware of the requirements. The result of analysis by the Director Central Food Laboratory is of great importance to an accused person and to ensure that this right. of the accused will not whittled down, law has made prescription in the shape of safeguards provided in the subsection. Courts are expected to. pay strict adherence to these provisions of the Act. In a similar case cited as State of Himachal Pradesh v. Prem Chand, 1990 (1) Prevention of Food Adulteration Cases 68, it was observed that the intendment of Section 13 (2)(b) clearly is to ensure that the possibility of a tampering with the sample should not only be excluded but the fact that there existed no possibility, of tampering with a sample should also appear from some observation recorded by the Court, that the mark and seal or fastening as provided in clause (b) of subsection (1) of Section 11 of the Act were all intact and the signature or thumb impression were not tampered with. In the absence of such a record by the Court, the accused would be perfectly justified in taking the plea that the sample which has been sent for examination was not proved to be one which had not been tampered with. To a similar effect is the observations of Aggarwal, J. in State of Maharashtra v. Dhyan Deo Ramchandra Patil, 1983 (1) Prevention of Food Adulteration Cases 9. To say the least the learned Magistrate did not perform his duty while sending the second sample to the Director, Central Food Laboratory.

The report of the Director, Central Food Laboratory only speaks of the sample being not free from presence of extraneous matter identified as paddy husk. However, no quantity of the paddy husk present in the sample is described. It is also not claimed that the paddy husk is an item which is injurious to health. In Municipal Committee, Amritsar v. Arjan Singh. 1973 Prevention of Food Adulteration Cases 241 (DB) their lordships held that where a foreign substance is not injurious to human health or its presence is not'' absolutely prohibited in a particular article of food, it will be necessary for the public analyst to state the quantity of foreign substance present in the sample and if minor presence of a foreign clement not injurious to health is found, action will be covered by Section 95 of the IPC making out no offence. This principle fully applies to the facts of the present case.

In this situation, continuation of the trial against the present petitioner as well as against Nand Kishore and M/s. Anand Kumar & Co. shall amount to abuse of process of Court.

I hereby quash the complaint and the subsequent proceedings against the petitioner as well. as the aforesaid accused.