Raj Kumar vs State, U.T.Chandigarh

J. S. Sekhon, J. (Oral)

Gurdial Singh, complainant is stated to have died by now as per the instructions of the learned counsel for the petitioner.

On 2331987, complainant Gurdial Singh went to the Surya Spice Factory, located in plot No. 411, Industrial Area, Phase II, Chandigarh and purchased six packets of Haldi, Surya Spices for Rs. 30/ twenty packets of MirchSurya Spices for Rs. 140/ and ten packets of Meat Masala from Raj Kumar accused petitioner. Thereafter, he happened to go inside the factory and found Raj Kumar mixing some Dal and other dirty material with the Masala in the grinder, On seeing this, the complainant tried to return the purchased articles to the accusedpetitioner but the latter refused. Under these circumstances the complainant left for Police Station South Chandigarh but happened to meet Sub Inspector Prem Singh, of CIA Staff on the way, who recorded his statement and seized the above referred packets after putting these in separate sealed parcels. The seized packets were sent to the Public Analyst for analysis and on receipt of the report that the packets of Surya Garam Masala and Surya MirchMasala were adulterated, the prosecution against the accused petitioner was launched for offences under Sections 420 and 272 of the Indian Penal Code (hereinafter referred to as the Code) The trial Court vide order dated 2471987 framed a chargesheet for offences under Sections 40 and 272 read with Sec. 120 B of the Indian Penal Code against the accusedpetitioner.

The petitioner through this petition under section 401 of the Code of Criminal Procedure seeks the quashment of the order framing the charges, inter alia on the ground that even if the entire allegations of the prosecution are taken to be true, no case for the above referred offences is made out against the petitioner. It is also stated at the bar by the learned counsel for the petitioner that regarding the same alleged samples of spices, five cases are pending against the petitioner under Section 7 (1) read with Section 16 (1)(a)(i) of the Prevention of Food Adulteration Act, 1954.

I have heard the learned counsel for the parties besides perusing the trial Court file.

There is no other witness to the alleged purchase of the above referred packets of spices etc. by the complainant. The statement of the complainant does not reveal that the accusedpetitioner had made any representation to him regarding the spices being of a particular quality. The report of the Public Analyst also does not reveal that on any of these some specifications of the ingredients of the Garam Masala or Mirch Masala or Meat Masala were written. In the seizure memo of these articles prepared by ASI Prem Singh, there is no indication that any of these packets bore the ingredients or the formula of their constituents. Thus even if the entire case of the prosecution is taken to be true, it cannot be said that the accusedpetitioner had on the basis of misrepresentation managed to sell adulterated food articles to the complainant and caused him some loss in terms of money. Consequently, these allegations do not fall under the definition of figuring Section 415 of the Code.

The question then arises whether the accused petitioner had committed the offence punishable under Section 272 of the Code. The provisions of section 272 of the Code read as under :

"272. Adulteration of food or drink intended for sale. Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

A bare glance through the above Section leaves no doubt that a person who adulterates any article of food or drink so as to make it noxious as food or drink, shall be punished with certain terms of imprisonment mentioned therein. The term noxious has not been defined in the Code or the Code of Criminal Procedure. Thus the ordinary dictionary meaning of this term has to be taken into consideration. According to Shorter Oxford English Dictionary, Vol. 2, IIIrd Edition, the word noxious means injurious, hurtful, harmful and unwholesome. The report of the Public Analyst reveals that only foreign search was found in the six packets of HaldiSarya Masala. The ash of the contents was found insoluble in dilute HCI to the extent of 1.68% against the maximum prescribed standard of 1.05%. Meat Masala packets were found conforming to the prescribed standard while the twenty packets containing Mirch Masala were found to contain foreign starch and nonpermitted red oil soluble coaltar dye as an admixture. The mere presence of nonpermitted red oil soluble coat tar dye, the percentage of which has not been given in the report of the Public Analyst would not make the spices as noxious because it will neither amount to injurious or hurtful nor can be said that it has made the spices as unwholesome. This view is supported from the observations of the Allahabad High Court in Ram Dayal and others v. King Emperor, AIR 1924 Allahabad 214(1). In that case mixing of pig''s fat with ghee and selling the mixture was held to be noxious to the religious and social feelings of both Hindus and Mahomedans but such an act was not found to fall within the meaning of noxious food as provided in Section 272 of the Code. Similar view was taken by the Calcutta High Court in Chokraj Marwari v. Emperor, 1908 Cri Law Journal 405. In that case, the selling of ghee adulterated with vegetable oil was involved. Similarly the mere presence of extraneous matter will not make the spices noxious.

The matter does not rest here as there is no evidence on the file that the accusedpetitioner had in fact mixed the adultering material in the packets sold to the complainant in the case in hand. Thus it cannot be said that a prima facie case would be made out against the petitioner for offence under Section 272 of the Indian Penal Code even if the entire allegations of the prosecution are taken to be true.

Faced with the above difficulty, Mr. H.S. Brar the learned Senior Standing Counsel for the respondent, relied upon the observations of the Supreme Court in Superintendent and Remembrancer of Legal Affairs West Bengal v. Anil Kumar Bhunja and others, AIR 1980 Supreme Court 52. In that case, the apex Court had observed that where there is strong suspicion about the commission of offence, it can be well said that a prima facie case for framing the charges is made out. The above referred observations are not attracted to the facts and circumstances of the case in hand as herein there is absolutely no evidence against the accusedpetitioner to infer that he has committed any of the above refered offences.

For the reasons recorded above, the impugned order of the trial Court framing the charges is hereby quashed by accepting this petition.

Trial Court file be sent back.