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Judgment
Navin Sinha, J.—Heard learned Counsel for the petitioners, and the teamed Counsel appearing on behalf of the opposite party No. 2 as
also the learned Counsel for the State.
The petitioners seek quashing of the First Information Report registered as Sheikhpura PS Case No. 151 of 2003 as also the order of
cognizance thereupon dated 3.1.2004 u/s 16 of the Food Adulteration Act, 1954 read with Section 63 of the Copy Right Act, Sections 78 & 79
of the Trade Merchandises Act and Sections 406, 419 & 420 of the Penal Code.
The FIR alleges that the informant, an Executive Magistrate purchased two bottles of cold drinks (Sprite) from the shop of one Arun Prasad.
Fungus like material was seen in the bottle which was also emitting a foul smell Arun Prasad conceeded having got the same from the petitioners
who are whole sellers. The petitioners are alleged to have acknowledged, sale of the cold drink to Arun Prasad. The petitioners were suspected to
be selling fungus infected harmful cold drink by manufacturing the same at local level, thus supplying spurious products in the market. It was also
learnt that the petitioners were supplying such spurious produce in rural areas leading to people suffering diarrhoea and illness.
Learned Counsel for the petitioners submits that the entire premise of the prosecution was the allegedly spurious and infected nature of the cold
drink being sold by the petitioners. Primarily, the allegations therefore were of an adulterated food, product. Out of these allegations followed the
charges under Sections 406, 419 and 420 of the Penal Code, Section 63 of the Copy Right Act dealing with infringement of the copy right and
Sections 78 & 79 of the Trade Merchandises Act dealing with the violation of trade mark and violation of trade description which were punishable
offences.
Learned Counsel thus submitted that it was incumbent for the prosecution to be instituted in accordance with Section 20 of the provisions of the
Food Adulteration Act which mandated that the prosecution must be instituted either by the Central Government or State Government,
alternatively by a person authorised in this behalf by the State Government or Central Government An individual like the informant could do so
under the proviso to the Section only if it was accompanied by a copy of the report of the Public Analyst along with the complaint initiating
prosecution. Such was not the case presently. It was obvious from the face of the FIR itself that it had not been instituted by the State Government
or Central Government or by a person authorised by them in this behalf. The present FIR was not accompanied by a report of the Public Analyst.
It was not the case of the informant that the sample had been tested by the Public Analyst and found to be of a nature as alleged quite apart from
the issue of such report accompanying the allegation. In support of his submission learned Counsel relied upon a Bench decision of this Court in the
case of Yamuna Sah and Ors. v. State of Bihar reported in 1990 (1) BLJ 761, and submitted that in absence of compliance of the mandatory
provisions of Section 20 of the Food Adulteration Act both the FIR and the order of cognizance was vitiated in law. Consequently the entire
edifice on which the prosecution was founded invoking the provisions of the Copy Right Act, Trade Merchandises Act or the Penal Code
automatically collapses.
It was next submitted that the informant was not a lay"" man but an Executive Magistrate conversant with the rudiments of the law. The. FIR was
based on completely vague allegations without any dates or places and. minimum necessary details of the alleged supplies made by the petitioners
in other rural areas and the resultant sickness of people. It was lastly submitted that . the petitioners were only whole seller stockiest of M/s
Hindustan Coco-Cola Beverages Pot. Ltd. manufacturers of the cold drink in question.
Learned Counsel for the opposite party No. 2 contended that the allegations is related to manufacture and supply of a spurious food product.
There was also an element of misrepresentation thus invoking the provisions of the Penal Code, the Copy Right Act and the Trade Merchandises
Act.
Learned Counsel for the opposite party No. 2 however found it difficult to support the prosecution under the Food Adulteration Act in absence
of institution of the prosecution either by a competent person or in absence of report of the Public Analyst in the given nature of the allegation as
required by Section 20 of the Prevention of Food Adulteration Act, 1954. Whether the prosecution under the Penal Code be applicable or not
and likewise the applicability of the provisions of Copy Right Act and Trade Merchandises Act were matters for trial, given the nature of
allegations notwithstanding the inapplicability of the. Food Adulteration Act. This would be a matter of fact to be decided by the court below
during trial on the basis of materials that may surface based on evidence that may be led. There was thus no occasion for this Court to interfere
with the prosecution at least under the provisions of the Penal Code, Copy Right Act and the Trade Merchandises Act.
This Court has considered the rival submissions on behalf of the parties. Section 20 of the Prevention of Food Adulteration Act 1954 provides
as under:
Cognizance and trial of offences - (1) No prosecution for an offence under this Act, not being an offence u/s 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.
Provided that a prosecution for an offence under this Act; may be instituted by a purchaser or recognised consumer association referred to in
Section 12, if he or it produces in court a copy of the report of the public analyst along with the complaint.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under Sub-section (1AA) of
Section 16 shall be cognizable and non-bailable.
It is apparent from the statutory provisions that there is a mandate prohibiting prosecution for an offence under the Act (not being an offence
under Sections 14 and 14A) except by the State Government or the Central Government, alternatively by a person authorised in this behalf by the
State Government or the Central Government. Alternatively an individual prosecution can also be. instituted provided the same is accompanied by
a report of the public analyst along with the allegation.
In the present case, it is not in dispute that the prosecution has not been instituted by the State Government or the Central Government,
alternatively by a person authorised by them in this regard. Likewise it is also not in dispute that the prosecution has been initiated without the
report of the public analyst or even any allegation that the Analyst had reported the produce of a nature as alleged. Learned Counsel thus rightly
relies upon a Bench decision of this Court in the case of Yamuna Sah and Ors (Supra) that for non-compliance of the mandatory statutory
provisions of Section 20 of the Prevention of Food Adulteration Act, 1954, the very initiation of the prosecution was bad as also the order of
cognizance. It is note worthy that Section 20 uses the word ""shall"" with regard to institution of the prosecution. This Court, therefore, finds that the
institution of the prosecution as also the order of cognizance against the petitioner under the provisions of the Prevention of Fool Adulteration Act
is vitiated in law and cannot be sustained.
The pre-requisite for the applicability of Section 406 of the Penal Code would be fulfilment of the condition u/s 405. There must be an
entrustment with property or any dominion over property by a person to another prescribing the mode in which the property would be dealt with.
The person so entrusted with the property must use or dispose the property in a manner contrary to the nature of the entrustment. In the nature of
the present allegation, there has been no entrustment of the bottles of cold drinks with the petitioners, muchless user, conversion or disposal of the
same in a manner contrary to the entrustment. Likewise, this Court finds it difficult to uphold the applicability of Section 409 of the Penal Code in
the facts of the present case. There are no allegation so as to invoke the applicability of cheating by personation. Section 420 deals with cheating
which must be preceeded. with dishonest inducement to deliver any property as a consequence of such cheating. Even if the payment made by the
informant for the cold drink in question be deemed to be delivery of property, it is essential to show that the informant has been cheated by
delivery of a spurious cold drink. The matter then reverts back to the issue of the drink being spurious or not. The basic premises for prosecution
on basis of the drink being spurious, would be the report of the Public Analyst which is wanting in the present case. Section 63 of the Copy Right
Act deals with infringement of copy right or other rights. Quite obviously, if the report of the public analyst had confirmed the spurious nature of the
produce nothing further was required to be look into at this stage in exercise of powers u/s 482 Cr.P.C. In absence of the same, there is no
material before this Court to even prima facie conclude the spurious nature of the product. For the same reason this Court finds it difficult to sustain
the prosecution of the petitioners under Sections 78 & 79 of the Trade and Merchandises Act which deals with application of false trade mark and
false description. It is reiterated that the report of the public analyst u/s 20 of the Prevention of Food Adulteration Act by itself would have been
sufficient justification for this Court to decline interference in the. prosecution against the petitioners under the aforesaid provisions.
This Court also notices that the complaint has been filed not by a lay man who could be said not to be conversant with the rudiments of law.
The complaint has been filed by an Executive Magistrate, He chooses to file the complaint contrary to the requirement of law that it must be
accompanied by a report of the Public Analyst. (sic)et it is alleged that the. food product is spurious. The complaint . further alleges spurious
manufacture of the cold drink by a wholeseller without any further details with regard to the same. Likewise the complaint is completely vague and
evasive with regard to rural areas where the allegedly spurious drink is being supplied or name and place in the form of example even of persons
who are alleged to have fallen sick by consumption of such spurious drink allegedly supplied by the petitioners.
This Court in the facts of the case arrives at the satisfaction that the very initiation of the prosecution against the petitioner is contrary to law in
absence of compliance with the mandatory provisions of Section 20 of the Prevention of Food Adulteration Act. Collapse of the very edifice of the
prosecution automatically leads to the collapse of the allegations under the other provisions of law stemming from the original allegation.
In the result, this application is allowed. Entire prosecution of the petitioners in Shekhpura PS Case No. 151 of 2003 pending before the
ACJM Shekhpura and the order of cognizance dated 3.1.2004 are accordingly quashed.