Raja Jalan vs State Of Assam And Anr

These two criminal petitions under Section 482, Code of Criminal Procedure, 1973 (‘the Code’ and/or ‘the CrPC’, for short) have been

preferred by the same petitioner who is facing the criminal prosecutions as one of the accused in respect of 2 (two) complaint cases â€" C.R. Case

no. 3192/2010 & C.R. Case no. 3193/2010 â€" which are presently pending before the Court of learned Additional Chief Judicial Magistrate, Barpeta

(‘the trial court’, for short). The criminal prosecutions have been launched against the petitioner for commission of offences under Section 7

read with Section 16 of the Prevention of Food Adulteration Act, 1954 (‘the PFA Act’, for short).

The food item in respect of complaint case, C.R. Case no. 3192/2010 is ‘bread’ whereas the food item involved in complaint case, C.R. Case

no. 3193/2010 is ‘suji rusk’. As the samples of bread and suji rusk were taken by the concerned Food Inspector from the same vendor at the

same time and date, the facts involved in both the complaints are similar, save and except the food items involved. In that view of the matter, the facts

stated in Complaint Case, C.R. Case no. 3192/2010 are taken up for discussion herein for convenience.

On 29.04.2010, the Food Inspector in order to check the quality of bread, kept stored for sale for human consumption, in the name and style of

“Bread (Perfect Butter Slice)†met a salesman who has been made accused no. 1 in the complaint case. The present petitioner has been named

as accused no. 2 in the complaint case. The Food Inspector gave his identity to the salesman of M/s Jyoti Food Products, Barpeta Road, who is the

manufacturer of “Bread (Perfect Butter Slice)â€​ and expressed his intention to check the quality of the food items.

3.1. Accordingly, he collected a sample of “Bread (Perfect Butter Slice)†for analysis and it is averred that he had followed the procedure

prescribed in Section 11 of the PFA Act. When 2 (two) customers found at the place were requested to remain as witnesses, they did not express

their willingness to remain as witnesses and left the place. Thus, he had to request a Grade-IV employee from his office to remain as a witness while

taking the sample. He served a notice in Form-VI to the salesman i.e. the accused no. 1 and took a sample of the food items i.e. “Bread (Perfect

Butter Slice)â€, for analysis, on purchase by making a payment of Rs. 18 from a box wherein 70 such pieces were kept stored for sale for

consumption. The salesman i.e. the accused no. 1 received the payment.

3.2. Thereafter, the Food Inspector divided the sample, weighing 525 gms., into 3 equal parts of 175 gm each. The Food Inspector stated to have

followed the procedure while dividing the samples into 3 (three) equal parts and sealed and labeled the same with prescribed labels and signatures of

the accused no. 1 and the witness thereon. Wrapping all the 3 (three) parts with brown papers and gum pasted paper slips each, all the 3 (three) parts

of the sample were brought to the office and by preparing Memorandum in Form-VII relating to the said sample, the Food Inspector sent one part of

the sample together with a Memorandum to the Public Analyst for analysis on 29.04.2010 and the Food Inspector deposited the remaining 2 (two)

parts of the samples along with 2 (two) copies of Memoranda to the Local (Health) Authority, Barpeta in a sealed packet on the same day.

3.4. The Public Analyst prepared his report after examining the sample where he opined that the sample did not meet the prescribed standards under

the PFA Act. The Public Analyst forwarded his opinion to the Local (Health) Authority with his report dated 09.06.2010. The Food Inspector

thereafter, submitted all the relevant documents in relation to the sample to the Local (Health) Authority for his perusal and to accord necessary

sanction to launch the prosecution against the accused persons, who are stated to be responsible for the conduct of business under the provisions of

the PFA Act.

3.5. The Local (Health) Authority had accorded its sanction on 08.07.2010. After receipt of the prosecution sanction, the Food Inspector in order to

launch prosecution against the 2 (two) accused persons prepared the complaint note on 12.07.2010.

Heard Mr. G.N. Sahewalla, learned Senior counsel for the petitioner and Ms. S. Jahan, learned Additional Public Prosecutor, State of Assam.

The petitioner has assailed the criminal prosecution launched against him on two grounds, firstly, the complaint is silent as to in what capacity, the

petitioner is made an accused in the complaint. The petitioner has stated that he is one of the partners of M/s Jyoti Food Products, a partnership firm

registered with the Registrar of Firm and Societies, Assam. He has further stated that he is neither in charge of the conduct of the affairs of the

partnership firm nor responsible for its day to day affairs of the partnership firm. In a prosecution to be launched against the company which includes

a partnership firm, it is mandatory to implead the company as the main accused, and secondly, the prescribed procedure laid down in Section 13(2) of

the PFA Act was not followed at the time of launching the criminal prosecution.

I have heard the learned counsel for the parties and considered the materials on record including the records of complaint cases - C.R. Case no.

3192/2010 & C.R. Case no. 3193/2010.

The petitioner has annexed a copy of the registration certificate of M/s Jyoti Food Products issued by the office of the Registrar and Firm Societies,

Assam. From the said certificate, it is evident that M/s Jyoti Food Products is involved in production and selling of bakery and confectionary items.

There are 3 (three) partners in the partnership firm and the petitioner is one of the partners in the said partnership firm.

Section 17 of the PFA Act has provided for the procedure in respect of offences by company. As Sub-Section (1) of Section 17 of the PFA Act is

of relevance, the same is extracted hereunder : -

“17. Offences by Companies : -

(1) Where an offence under this Act has been committed by a company :-

(a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of and responsible to the company for the conduct of the

business of the company (hereafter in this section to be referred as the person responsible), or

(ii) where no person has been so nominated, every person who at the time the offence was committed was incharge of, and was responsible to, the

company for the conduct of the business of the company; and

(b) the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was

committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.â€​

In Gopal Chandra Paul vs. State of Assam, reported in (2004) 3 GLR 64, this Court has held that the prosecution of a partner of a firm in the

absence of a complaint against the firm is bad in law. While observing so, the Court referred to two earlier decisions reported in 1973 ALR 169

(Hanuman Prasad Lohia vs. The State of Assam and another) and( 1990) 2 GLR 345 (The State of Assam vs. Paban Kumar Agarwalla & another.)

It has been observed therein that since partnership firm is a company under Section 17 of the Act, the said partnership firm is a legal entity. Thus, a

partnership firm clearly comes under Section 17 of the Act and as such, the prosecution of a partnership firm in the absence of any complaint against

the said firm is not permissible in law. It is in view of such legal position, this Court held that the criminal prosecution against the petitioner therein was

wholly illegal and bad in law and on that ground, the petition was allowed. The position of the petitioner in the case in hand, is no different than the

position of the petitioner in Gopal Chandra Paul (Supra).

After receipt of the sample, the Public Analyst after completing his analysis shall have to deliver the report to the Local (Health) Authority

indicating the result of the analysis of any article of food submitted to him for analysis. Sub-section (1), Sub-Section (2), Sub-Section (2a) and Sub-

Section (2b) of Section 13 of the Act which appear to be relevant, are extracted hereunder :-

“(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any

article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health)

Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any,

whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the

report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or

both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of

the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

(2A) When an application is made to the court under sub-section (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 or parts 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 (Health) Authority under sub-section (2A), the court shall first ascertain that the

mark and seal or fastening as provided in clause (b) of sub-section (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 one month from the date of receipt of the part of the

sample specifying the result of the analysis.â€​

A reading of sub-section (2) of Section 13 of the PFA Act makes it clear that on receipt of the report of the result of the analysis from the Public

Analyst to the effect that the article of food is not of the prescribed standard then, apart from serving such analysis report on the person from whom

the sample of the article of food was taken, the Local (Health) Authority is, after the institution of prosecution against those persons, also required to

forward a copy of such report against whom it has decided to launch the criminal prosecution under the PFA Act, with the further information to such

person or persons that if they so desire, he/they may make an application to the Court within a period of 10 (ten) days from the date of receipt of the

copy of the Analysis Report of the Public Analyst to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central

Food Laboratory.

In the instant case, it is found that the Local (Health) Authority did not discharge the obligatory and statutory mandate cast upon it. From a perusal

of the materials available in the record, I find force in the submission of the learned Senior counsel for the petitioner. The petitioner has been arraigned

as an accused in the complaint filed before the learned trial court. The order dated 08.07.2010 of the Local (Health) Authority is silent about sending a

copy of the analysis report to either of the accused persons. The complaint note dated 12.07.2010 is also silent about sending a copy of the analysis

report to either of the accused persons. The list of enclosures filed by the Food Inspector along with the complaint before the learned trial court does

not speak about any communication made to either of the accused persons whereby the analysis report of the Public Analyst was forwarded to either

of the accused persons. Nothing has been brought on record by the prosecution to the effect that such a notice under Section 13(2) of the Act had

been served to the accused persons. Thus, it is clearly evident that the accused persons including the petitioner, in the present case have been denied

the statutory right to get a sample re-tested by the Central Food Laboratory.

The main purpose of Section 13(2) of the Act is to give opportunity to the accused persons against whom prosecution is initiated under the PFA

Act based on the Public Analyst’s report, to get relevant food sample tested by the Central Food Laboratory. Since the report of the Central Food

Laboratory will have precedence over the report of the result of the analysis of the Public Analyst this is a valuable right statutorily provided to the

accused to claim exoneration from the criminal prosecution. In Mohan Chandra Deka vs. State of Assam, reported in (2005) 2 GLR 229 ,it has been

held that compliance of Section 13(2) of the PFA Act is mandatory. The object of Section 13(2) of the Act is not merely to make a report of the

Public Analyst reach the accused but also to inform that he has a right to get the sample examined from the Central Food Laboratory. Non-

compliance of the provision of Section 13(2) of the PFA Act per se vitiates the trial and prejudice is implicit in such non-compliance. In State of Orissa

vs. Gauranga Sahu, reported in AIR 2004 SC 1233, it is held that the report of Public Analyst to the accused is not a ritual but a statutory requirement

to be mandatorily followed. The prosecution has to show that not only the dispatch of the report but also its receipt by the accused.

The facts involved in both the complaint case - C.R. Case no. 3192/2010 & C.R. Case no. 3193/2010 are almost similar.

In view of the discussions made above and in the light of the principles laid down in the aforementioned decisions, this Court is of the considered

view that criminal prosecution initiated through the complaint cases are vitiated and the same are not sustainable in law. Thus, criminal proceedings in

relation to the two complaint cases i.e. C.R. Case no. 3192/2010 & C.R. Case no. 3193/2010 and all consequential orders passed thereon are hereby

set aside and quashed. The petitioner is to be treated as discharged from the charges under Section 7 read with Section 16 of the PFA Act.

Resultantly, both the criminal petitions are allowed. There shall, however, be no order as to cost.