R.P.Patel vs State of Punjab

K.S. Kumaran, J.

PetitionerR.P. Patel has approached this Court under Section 482 Cr.P.C. for quashing the complaintannexure P.4 and the consequential proceedings including the summoning order and order dated 19.4.1995, framing charges against him (annexure P.5).

Dr. Pawan K. Kalia, the Medical OfficercumFood Inspector along with another Doctor visited the shop of Ramesh Kumar Chaurasia Pan Shop, Gauran Gate, Hoshiarpur, on 3.3.1994. Ramesh Kumar, who was present, was having in his possession 60 packets of Pan Parag Gutka for public sale and human consumption. The Food Inspector demanded the sample of Pan Parag Gutka by serving notice on Ramesh Kumar and purchased 30 packets against proper receipt signed by Ramesh Kumar and attested by witnesses. These 30 packets were divided into 3 groups of ten packets each. Each group of ten packets was put into loose card board box which was wrapped in a thick paper. Each sample pack was fastened with a strong thread and sealed at six distinct points. The signature of Ramesh Kumar was obtained partially on the wrapper and partially on the paper slip, which was pasted (with Sr. No. 58499 Code No. YM 59/94 and signed by the Local Heath Authority, Hoshiarpur). The Food Inspector also signed the sample packets. The spot memo was prepared, signed by Ramesh Kumar and attested by the witnesses.

One sample packet containing Pan Parag Gutka was sent to Public Analyst, Punjab, at Chandigarh, in a sealed cover, and the remaining two sample packets were deposited with the local Heath Authority, Hoshiarpur on the same day. The report of the Public Analyst showed that the sample was adulterated. The Public Analyst opined that the contents of the sample contained Tobacco whereas the addition of Tobacco in the Pan Masala is not permitted.

At the time of the purchase of the said Pan Parag Gutka, the accused handed over the bill bearing No. 4428 dated 3.3.1994 from M/s Friends Store, Railway Road, Hoshiarpur, (secondrespondent) who is alleged to be the Wholesale Dealer of Pan Parag Gutka. The said Pan Parag Gutka has been purchased and marketed by M/s Kothari Pouches Ltd., Noida, (the third respondent). The accused Nos. 1 to 3 have contravened the provisions of the Prevention of Food Adulteration Act 1954. On the basis of this complaint, and after hearing both sides the Chief Judicial Magistrate, Hoshiarpur, passed the impugned order annexure P.5, framing charges under Section 7 read with Section 16 of the above said Act.

I head the counsel for both the sides and perused the records. The contention of the petitionerR.P. Patel, is that he is only a Supervisor of Kothari Pouches, and no allegation has been levelled against him in the complaint annexure P.4. According to the petitioner he cannot be charged for the offence and for the alleged offence committed by the Company only the responsible person should have been arrayed as accused. The petitioner further contends that as per the allegation in the complaint one of the sealed packets containing ten packets of Pan Parag Gutka was sent to the Public Analyst, whereas the report of the Public Analyst (Annexure P.3) shows that the contents of the sample were received in eight packets put in loose Card Board box. The petitioner also contends that the report speaks of Pan Masala and not Pan Parag Gutka. According to the petitioner the sample has been tampered is clear in view of these factors. Another contention of the petitioner is that the report of the Analyst shows that addition of Tobacco in Pan Masala is not permitted, whereas as per the Chapter 21 of the Tariff Schedule Pan Masala is shown to include Tobacco also and therefore, no offence is made out against him. Yet another contention of the petitioner is that the provisions of Section 13(2) of the above said Act have not been complied with since no notice as required under section has been sent to him informing him that he may apply to the Court to get the sample analysed by the Central Food Laboratory.

Learned counsel for the respondent on the other hand, relying upon the decisions, one of the Hon''ble Supreme Court in State of Bihar v. Shri P.P. Sharma, AIR 1991 Supreme Court 1260 wherein it was held that the High Court should not undertake quashing proceedings after the filing of the chargesheet under Section 173 Cr.P.C., and the other of this Court in Ashok V. Jauhar v. State of Punjab, 1995(2) RCR 572 wherein it was held that the FIR should not be quashed under section 482 Cr.P.C. when charge has been framed, contended that in the present case, admittedly charge has been framed against the petitioner and, therefore, this Court shall not quash the proceeding under Section 482 Cr.P.C.

I agree with the learned Counsel for the respondent to the extent that once that chargesheet is filed in the Court under Section 173 Cr.P.C. or charges have been framed against the accused by the Court, the High Court shall not in the exercise of its power under Section 482 of the Code of Criminal Procedure, quash the proceedings even if the High Court should find that the perusal of the complaint did not disclose grounds for proceedings against accusedpetitioner. Therefore, the contention of the petitioner that he is only a supervisor, that there are no allegations against him in the complaint, that only responsible person of the company should have been arrayed on behalf of the company, that the sample has been tampered with, that the report of Public Analyst does not implicate him are not matters which can be taken into consideration for quashing the proceedings once it is clear that the charge has been framed against the petitioner.

But the vital objection of the petitioner that no notice as required under Section 13(2) of the Prevention of Food Adulteration Act has been sent to him goes to the root of the matter as noncompliance with the said provision prejudices the petitioner in his defence. As per subsection (2) of Section 13 of the above said Act, on receipt of the report of the result of the analysis to the effect that the article of food is adulterated, the local authority shall, after the institution of the prosecution against the petitioner from whom the sample of article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward a copy of the report of the result of the analysis to such person or the persons, as the case may be, informing such person or persons that either or both of them can make an application to the Court within a period of 10 days from the date of receipt of the copy of the report, to get the sample analysed by the Central Food Laboratory. The allegation in the complaintannexure P.4 is that the said Pan Parag Gutka has been purchased and marketed by M/s Kothari Pouches Limited (thirdrespondent). In the complaint, petitioner''s name has been mentioned along with the i.e. against the name of Kothari Pouches Limited. Therefore, the notice as contemplated under Section 13(2) of the Act should have been sent to the petitionerR.P. Patel. In paragraph15 of the present petition, it has been mentioned that no notice as required under section 13(2) of the Act has been served upon the petitioner. In the reply, in paragraph15, it has been merely stated that this paragraph is a legal para, and there is no denial. Therefore, we have to take it that no notice as contemplated under section 13(2) of the Prevention of Food Adulteration Act has been served upon the petitioner. A Division Bench of this Court in State of Punjab v. Ashok Kumar, 1991(3) RCR 270 , held that the notice must state which Court the accused should approach for sending the sample to Central Food Laboratory and if it is not done, it causes prejudice. So holding, the accused were acquitted. In so doing, the Court relied upon a Full Bench decision of this Court in State of Punjab v. Deboo, (1988 XV Crl. Law Times 476), wherein it was held as follows :

"But in case of nonobservance of these essential requirements altogether prejudice is writ large on the face of it and it per se would be fatal to the prosecution."

Therefore, when the respondent has not complied with the provisions of section 13(2) completely and had not sent the notice as contemplated therein, the petitioner is certainly prejudiced. This fact goes to the root of the matter and even if all the allegations are made out, the petitioner cannot be ultimately convicted.

Therefore, even though this Court, in exercise of its jurisdiction under Section 482 Cr.P.C., will not normally quash the proceedings after the framing of the charge, in view of this formidable compulsion, proceedings will have to be quashed. In this regard, the decision of the Hon''ble Supreme Court in Minakshi Bala v. Sudhir Kumar, 1994(3) RCR 123, wherein it was held that after the framing of the charge under Section 240 Cr.P.C., the proceedings cannot be quashed under Section 482 Cr.P.C., except in exceptional cases where forensic exigencies and formidable compulsions justify such a course, supports the contention of the petitioner. Therefore, there will be no purpose in allowing the complaint and the consequential proceedings including the charge to continue.

In view of my finding above, I find that it is not necessary for me to go into the contention raised by the learned counsel for the petitioner that this Court can treat this petition as a revision to quash the charge framed.

In the result, the petition is allowed quashing the impugned complaint annexure P.4 and the consequential proceedings, including the order framing the charge, before the learned C.J.M., Hoshiarpur.