Karam Chand vs State of Punjab

S.S. Grewal, J.

This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) reates to quashment of complaint (Annexure P1) filed by Rajesh Jindal, Food Inspector for commission of offence under Section 16 of the Prevention of Food Adulteration Act, 1954, as amended by Act No. 34 of 1976 (hereinafter referred to as the Act).

The brief facts relevant for the disposal of this petition as emerge from the complaint, Annexure P1, are that Rajesh Jindal acting as Government Food Inspector: inspected the premises of the present petitioner at Ropar, on 2231983 at 11 A.M. At that time the petitioner had in his possession Lipton Rich Bru tea meant for sale. After disclosing his identity the Food Inspector purchased three packets of the tea each weighing 250 grams on payment of Rs. 37.50. Those samples were divided in three equal parts, and, transferred into three different packets which were separately labeled, stoppered, fastened and then wrapped in a strong thick paper. A paper slip signed by the Local Health Authority with stamp at both the ends was pasted around each of three packets, which, was further secured by means of strong twine and sealed with distinct seals at the spot. One such packet was sent to the Public Analyst Punjab, Chandigarh along with memorandum on form VII in a sealed cover and the remaining two samples were sent to the Local Health Authority. The report of the Public Analyst revealed that the sample contained one iron piece 7.00 mn. in length 608 parts per million by weight. Since the petitioner had contravened the provisions of the Act and the Rules framed thereunder, he was found selling Lipton Rich Bru tea without a licence as required under rule 50 of the Act, complaint Annexure P1 was filed against him. It has also been pleaded that Rajesh Kumar Jindal has been appointed as Food Inspector & duly authorised to institute prosecution for an offence under the Act vide notification No. DRGS3 Pb. 75/7357 dt. 30th July, 1975 (Annexure R2).

The learned counsel for the parties were heard.

On behalf of the petitioner, it has been submitted that Rajesh Kumar Jindal complainant has not been duly appointed as Food Inspector, nor, he has been duly authorised to institute proceedings for prosecution of offences under the Act. This aspect of the case was specially pleaded in the petition; wherein, it is pleaded that the Food Inspector who launched the complaint has no power under Section 20 of the Act to institute the prosecution as the Food Inspector has not been duly authorised to institute the prosecution by the State Government and he has filed the complaint on the basis of the authority delegated to him by the Director Health Services Punjab, vide, Gazette notification, Annexure P4.

In corresponding para of the reply filed on behalf of the Food Inspector, it was pleaded that Director Health Services after going through all the documents attached with the case of the petitioner has round it a fit case for launching prosecution and has granted written consent to the Food Inspector to institute prosecution, vide, letter No. FD (1) Punjab 88/15289 dated 11th September 1988, copy whereof is Annexure R I. In the alternative it was pleaded that this defect is of no consequence as in pursuance of Section 12 and the proviso to Section 20 of the Act, a private person or purchaser can institute prosecution. It is also plealed that another notification No. 10(10)874HBIV/8873 dated 2nd June, 1989 was issued by the State Government whereby complainant was duly authorised under Subsection (1) of Section 20 of the Act to institute prosecution for offences committed under the Act not being an offence under Sec. 14 or Sec. 14A of the Act.

Perusal of the notification (Annexure R2) No. Drugs3Pb75/7357 dated 30th July, 1975 reveals that Dr. A.K. Jindal along with others was appointed as Food Inspector for all the local area of the district or posting. Original notification in the Punjab Government Gazette was also perused, wherein, the name of the Food Inspector at Sr. No. 61 was mentioned as Dr. A.K. Jindal and not the present complainant i.e. R.K. Jindal. It is thus quite obvious that Dr. R.K. Jindal was not legally authorised either to take sample under the Act, nor he was duly authorised to launch prosecution against the present petitioner for taking action under Section 7 read with Section 16(1)(a)(i) of the Act. Thus subsequent notification No. FD (I)Pb88/15289 dated 14th September, 1988 issued by the Food (Health) Authority of Punjab State in so far as he purported to delegate his powers to institute prosecution for an offence under Section 20(1) of the Act to the complainant Food Inspector, cannot be deemed to be a legal, or, valid sanction, in view of the authority of the apex Court in A.K. Roy and another v. State of Punjab and others, 1986(3) F.A.C. 66.

Faced with situation notification. No. 10(10)874HBIV/8873 dated 23rd May, 1989 Annexure R3 issued by the State Government was published in the Government Gazette on 2nd June, 1989 whereby, sanction to institute prosecution for, an offence committed under the Act was granted to the present complainant i.e. much after the date on which the impugned complaint was filed in the Court of Chief Judicial Magistrate, Ropar. The subsequent notification Annexure R3 authorising the Food Inspector to file the complaint much after the filing of the complaint in the trial Court would not be sufficient to fill in this lacuna, or, to cure, or, to rectify the legal defect of lack of jurisdiction on the part of Shri Rajesh Kumar Jindal in filing proper or a duly constituted complaint in the present case.

I am supported in my view by Single Bench authorities of this Court in S.C. Sharma and others v. State of Punjab and another, 1990(1) All India Criminal Reporter 736 and Raj Pal v. State of Punjab, 1987(2) CLR 700.

The other limb of the argument advanced on behalf of the complainant is that under proviso to Section 20 of the Act the prosecution of an offence under the Act could also be legally instituted by a purchaser referred to in Section 12 thereof, and, even if Shri Rajesh Kumar Jindal, Food Inspector, was not duly authorised as a Food Inspector to institute the proceedings concerning prosecution of the petitioner, there would be no legal bar for the complainant in his individual capacity as a purchaser to file the present complaint for commission of offence punishable under the Act.

This argument is devoid of any merit. Under Section 12 of the Act nothing contained in the Act shall be held to prevent a purchaser of any article of food other than a Food Inspector, or, a recognised consumer association, whether the purchaser is a member of that Association or not from having such article analysed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of his analysis. It is true that under Proviso to Subsection (1) to Section 20 of the Act prosecution of an offence under the Act may be instituted by a purchaser referred to in Section 12. However, according to the allegations in the impugned complaint, the complainant has specifically acted in the present case as a Food Inspector and not as an ordinary purchaser. Thus it would not be proper for the complainant, who has filed the impugned complaint as a Food Inspector and not as a purchaser, to plea that he may be permitted to file either a fresh complaint as purchaser or continue the old complaint in his capacity as a mere purchaser. On this point I am supported in my view from the Division Bench authority of this Court in State of Punjab v. Sher Singh reported as 1987(1) F.A.C. 140.

For the foregoing reasons, complaint, Annexure PI and consequent proceedings taken thereunder against the present petitioner cannot be legally sustained and the same are directed to be quashed and this petition is accordingly allowed.