IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.9976 of 2008 1. DEV NARAYAN PRASAD BHAGAT, S/O RAMAWTAR PRASAD BHAGAT, RESIDENT OF MOHALLA BATRAHA, WARD NO. 26, P.S. SAHARSA, DISTRICT SAHARSA .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. ARJUN PRASAD, FOOD INSPECTOR, SAHARSA, P.S. & DISTRICT SAHARSA .. OPPOSITE PARTIES **** /4/ 14.05.2010 Heard the counsel for the parties. 2. This application is directed against the order, dated 23.08.2006, passed by the Sub Divisional Judicial Magistrate, Saharsa, in Miscellaneous Case No. 10 of 2006 by which he has taken cognizance under Sections 16(a)(i) of the Prevention of Food Adulteration Act, 1954, 7 of the Food Adulteration Rules read with Section 50(i) of the Prevention of Food Adulteration Act, 1954. It appears that a written report was lodged by the Food Inspector that sample of Arhar Dal was taken for chemical analysis from the shop of the petitioner and the said Arhar Dal, which was being sold, was found to be adulterated as per the Analyst report, which was sent for chemical examination after due consent of the Civil Surgeon. 3. The learned counsel for the petitioner, however, contends that said report of the Analyst only mentions 2 that water soluble colour in it so it is adulterated and contends that there is no mention that the said article is unfit for human consumption and so it does not come under the definition of the term adulteration and further there is no standard specification given of the Arhar Dal to be compared with as to whether it is of that standard or not and for which a reliance has been placed upon a decision reported in A.I.R. 1985 S.C., 741 (State (Delhi Administration) Vrs. Puran Mal). 4. The learned counsel appearing for the State, however, opposes the contention of the learned counsel for the petitioner and submits that it was open to the petitioner to challenge the Analyst report if he was not satisfied with the same. Once the Analyst has reported that the said Arhar Dal was adulterated then it may have explain about the specification at the trial and the prosecution is not required to be quashed at the earlier stage on these grounds that the said Arhar Dal is not adulterated as at this stage the Court has only to see the prima facie case and when the report of the Chemical Analyst that it is adulterated then it can well be held that there is prima facie case. 5. However, in the case reported in A.I.R. 1985, S.C., 741 (supra) the fact is that this case was in a stage of appeal against the order passed in a criminal revision by High Court 3 which was dismissed inlimine against the order of acquittal by High Court. However, the case initiated on the report of the Public Analyst on the sample taken by the Food Inspector and the sample contained nine living meal worms. There was no other evidence in support of the case of the prosecution that the lal mirchi (red chili) powder was adulterated and there the point raised before the learned Magistrate that the evidence by way of Public Analyst’s report does not satisfy with the requirement of the definition of adulterated article. However, under the present facts and circumstances of the case there is report of the Public Analyst that it is adulterated. However, the Supreme Court held that in the definition the adjective used for adulterated food for insects infested and it is held that one requirement such proof of the article for human consumption is must. However, the case, at hand, is at the outset whereas the case reported in A.I.R. 1985 S.C., 741 (supra) were at the fag end of trial after adducing of the evidence and there was no other evidence in support that lal mirchi (red chili) was adulterated and the matrix applied at the outset at the initial stage of the prosecution is quite different from matrix applied at fag end of trial. However, it is pertinent to mention that for quashing a first information report at the initial stage, it is not the function of the Court to weigh the pros 4 and cons of the prosecution case or to consider necessity of strict compliance of the provision which are considering mandatory and at this stage the Court can not meticulously examine the prosecution case, but, has only to see the prima facie offence is made out. However having regard to the fact that there is report of Public Analyst that the said Arhar Dal is adulterated, it is not proper to quash the proceeding or order taking cognizance without giving opportunity to the prosecution during trial as at the stage of taking cognizance it has only to be seen whether prima facie case is made out and, more over, if the petitioner was not satisfy with the Analyst report he may have challenged the Analyst report as per the Rules provided in the Act. However, the learned counsel for the petitioner has relied upon an unreported decision, dated 22.01.2009, passed in Cr. Misc. No. 44636 of 2007 where the question was that Analyst report about the foreign black hard particle found with ‘sujji’ and there it has been taken that unless the Analyst report that the alleged foreign object was found of a nature unfit for human consumption and some particles of foreign material do not bring the food within the definition of the term adulteration. 6. However, the decision relied upon is not applicable to the facts and circumstances of this case as it is not 5 proper at this stage to appreciate and is distinguished as it is not a case of finding of foreign material, but, as the Arhar Dal was purported to be adulterated to be water soluble colour present and so it is adulterated and, hence, at this stage prima facie there are material to suggest about the prima facie case and at this stage the quashing of proceeding does not appear to be proper as at this stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to weigh the evidence or to consider the necessity of the strict compliance of the provision which are considered mandatory and it’s effect of non- compliance and it can only be done after the trial is concluded and the Court has to prima facie consider whether a prima facie case made out for taking cognizance and this view has been accepted in a decision report in A.I.R. 1996, S.C., 2982 (Mushtaq Ahmad Vrs. Mohd. Habibur Rahman Faizi & Ors.). 7. Hence, having regard to the facts and circumstances of the case, I am not inclined to interfere with the impugned order, dated 23.08.2006, passed in Miscellaneous Case No. 10 of 2006 at this stage. 8. This application is rejected. S.A. ( Gopal Prasad, J. ) 6