Pradip Kumar Abhi vs State of U.P. and Another

Rajesh Dayal Khare, J.—Heard learned Counsel for the applicant and learned A.G.A. for the State Respondent.

The present application has been filed for quashing the proceedings of case No. 3297 of 2010 u/s 272/273 IPC, P.S. Mughalsarai District Chandauli pending in the court of C.J.M., Chandauli.

It is contended by the learned Counsel for the applicant that the allegation against the applicant is that the sample of ice-cream, which was taken from the applicant''s shop, was found not up to the mark, hence, the proceedings under the charged section has been drawn. It is also contended that with regard to the allegation against the applicant, the proper remedy would have been to initiate proceedings under the Prevention of Food Adulteration Act and not under the provisions of I.P.C., therefore, criminal prosecution of the applicant under the charged section is bad in law. Learned Counsel for the applicant has relied upon the judgment of Division Bench of this Court passed in writ petition No. 8254 (MB) of 2010, M/s Pepsico India Holdings (Pvt) Limited and Anr. v. State of Uttar pradesh and Ors. No. 8254 (MB) of 2010and the order passed by Single Judge of this Court in criminal revision No. 1964 of 2007, Rajesh Jain v. State of Uttar Pradesh and Ors. No. 1964 of 2007, in support of his contention. It is lastly contended that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contentions.

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court u/s 482, Code of Criminal Procedure At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. The State of Punjab, State of Haryana v. Bhajan Lal 1992 SCC 426, State of Bihar v. P.P. Sharma 1992 SCC 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para-10) 2005 SCC 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge u/s 239, 245(2) or 227/228, Code of Criminal Procedure as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial Court. The prayer for quashing the proceedings is refused.

However, it is provided that if the applicant appears and surrenders before the court below within a period of 30 days from today and applies for bail, then his prayer for bail shall be considered in view of the settled law laid down by the Seven Judges'' decision of this Court in the case of Amarawati and Anr. v. State of Uttar Pradesh 2004(57) ALR 290 and in the recent decision of the Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. and Others, after hearing the Public Prosecutor. For a period of 30 days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicant. However, in case the applicant does not appear before the court below within the aforesaid period, coercive action shall be taken against him.

With the aforesaid directions, this application is disposed off.