Crl. Misc. No.50367-M of 2006 1 Manoj Kumar S/o Bhagirath, ....Petitioner Vs. State of Haryana, through ...Respondent Government Food Inspector, Narnaul. Present: Mr. K.K.Aggarwal, Sr. Advocate, with Mr. Kapil Aggarwal, Advocate, for the petitioner. Mr. A.K.Jindal, AAG, Haryana, for the respondent. *** This petition, under Section 482 Cr.P.C., has been filed by Manoj Kumar, petitioner, for quashing the order dated 23.5.2006, passed by the Sessions Judge, Narnaul, (Annexure P-1), and the order dated 12.1.2006, passed by the Chief Judicial Magistrate, Narnaul, (Annexure P-2), whereby an application for the dismissal of complaint, filed by the petitioner, was dismissed. 2. The facts, in brief, are that on 20.8.1998, at about 4.00 PM, the Food Inspector, inspected the grocery shop (Kirana shop) of the petitioner, situated in Ishwar Colony, Nizampur Road, Narnaul. 10 Kgs. of Lal Mirchi Powder, contained in a plastic bag, had been kept for sale, by the petitioner, in his shop. A sample was drawn, by the Food Inspector, in accordance with the provisions of law. Ultimately, the Public Analyst, Haryana, Chandigarh, found that the said sample was coloured with added prohibited red oil soluble coal tar dye, whereas, it should be free from added colouring matter, and, as such, was adulterated. On the basis of the said report, a criminal complaint, under Section 7 read with Section 16 of the Prevention of Food Adulteration Crl. Misc. No.50367-M of 2006 2 Act, 1954, (hereinafter to be called as 'the Act' only), was filed against the petitioner. 3. An application was filed, by the petitioner, for dismissing the complaint, on the ground that the Public Analyst, namely P.K.Nayyer, who analysed the sample, had not been assigned the area of Narnaul for the analysis of food samples, and, as such, he was not legally authorised to submit the analysis report. That application was dismissed by the Court of the Chief Judicial Magistrate, vide order dated 12.1.2006. A revision filed against that order, was also dismissed by the Sessions Judge, Narnaul, vide order dated 23.5.2006. 4. I have heard the Counsel for the parties, and have gone through the record of the case, carefully. 5. The Counsel for the petitioner submitted that, as per the notification dated 13.10.1998 (Annexure P-4), which was published in the Gazette on 26.10.1998, P.K.Nayyer, Public Analyst, was appointed, as such, for the whole of State of Haryana. He further submitted that before 31.7.1998, P.K.Nayyer, who was working as Public Analyst, in the District Food Laboratory, Karnal, had jurisdiction over Ambala, Panchkula, Kaithal, Sonepat, as per the notification dated 26.9.1995. He further submitted that the sample, in this case, was analysed, and the report was submitted by the said Public Analyst on 28.9.1998, and on that date, he had not been validly appointed as a Public Analyst, for whole of the State of Haryana. It was further submitted, that since P.K.Nayyer, had no jurisdiction, over the District of Narnaul, where the shop of the petitioner was situated, at the relevant time, he had no competence to analyse the sample, so drawn from Lal Mirchi Powder, from his shop. It Crl. Misc. No.50367-M of 2006 3 was further submitted that the said report, therefore, could not be read into evidence. It was further submitted that once that report, is ignored, then no offence, punishable under Section 16 of the Act, was committed by the petitioner. 6. On the other hand, the Counsel for the respondent, submitted that as per Gazette Notification No.12/25/85-2HB-II, dated 10.10.1985 (Annexure R-1), P.K.Nayyer, was appointed as Public Analyst, for the whole of State of Haryana. He further submitted that the subsequent notification dated 26.9.1995, assigning the areas of Ambala, Panchkula, Kaithal, Bhiwani, and Sonepat, in terms of Section 8 of the Act, did not specifically supersede the notification of 10.10.1985 (Annexure R-1), according to which he was appointed as Public Analyst, for the whole of State of Haryana. He further submitted that even the subsequent notification dated 26.9.1995, was not issued, in partial modification of the earlier notification of 1985. He further submitted that on the basis of notification dated 18.10.1985, since, P.K.Nayyer, was validly appointed as Public Analyst for the whole of State of Haryana, he was competent to analyse the sample of the food article, sent to him, which was taken from the shop of the petitioner at Narnaul. In the alternative, he also submitted that since the office of the Public Analyst was validly created, even if his appointment as Public Analyst, is held to be invalid, in respect of the areas, other than the one assigned to him, vide the notification dated 16.9.1995, by application of the doctrine of de facto the acts performed by him, in respect of the areas not assigned to him, could be said to be valid. He further submitted that, thus, the report submitted by the Public Analyst is valid. He also submitted that the orders impugned do not Crl. Misc. No.50367-M of 2006 4 suffer from any illegality or infirmity. 7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is not a fit case, in which the orders impugned, should be quashed, for the reasons to be recorded hereinafter. In Gokaraju Rangarju Vs. State of Andhra Pradesh 1948-1997 Supreme Court on Food Adulteration Cases 782 (SC), relied upon by the Counsel for the respondent, it was held that by application of the de facto doctrine, even if, the appointment has been held to be invalid, when the office was validly created, the acts done by the authority would be taken to be valid. In nutshell, it was concluded that it is immaterial that the incumbent was not validly appointed, if the office was validly created. In the instant case, the office of the Public Analyst was validly created. Even if, it is assumed, for the sake of arguments, that he was not validly appointed, on the relevant day, as Public Analyst, for the whole of the State of Haryana, the acts performed by him, could not be said to be illegal. The subsequent notification dated 26.9.1995, assigning Mr. P.K.Nayyer, Public Analyst, specified areas for the purpose of the Act, did not, in any way, specifically supersede the notification dated 10.10.1985 (Annexure R-1), when he was appointed as Public Analyst for the whole of State of Haryana. The Counsel for the petitioner, however, placed reliance on M/s Rameshwar Dass Chhotey Lal and others Vs. Union of India and others 1977 (1) Prevention of Food Adulteration Cases 82, Deep Chand Jain and others Vs. State of Bihar 1998(1) Prevention of Food Adulteration Cases 271, and Delhi Administration Vs. Standard Restaurant and others 1985 (1) Prevention of Food Adulteration Cases Crl. Misc. No.50367-M of 2006 5 205, in support of this contention, that P.K.Nayyer, was not a validly appointed Public Analyst, for the District of Narnaul, at the relevant time, and, as such, the report submitted by him, in the instance case, could not be said to legal and valid. In M/s Rameshwar Dass Chhotey Lal's case (supra), it was held by the Apex Court that the validity of the appointment of Public Analyst and Food Inspector, should be raised before the trial Magistrate, and is required to be decided by that Court on the material, that may be placed before it. In Deep Chand Jain's case (supra), decided by a single Bench of the Patna High Court, it was held that since a Public Analyst was not assigned the local area, where from the sample was taken, and analysed by him, and, as such, he had no jurisdiction to give any report, in respect of that sample. In Delhi Administration's case (supra), decided by a single Bench of Delhi High Court, the Public Analyst analysed the sample of ice-cream, and it was found that he was not legally appointed, as such, the Magistrate discharged the accused, and in the revision, the order was upheld. There is no dispute with the proposition of law, laid down, in Rameshwar Lal and others' case (supra). In view of the principle of law, laid down, in Gokaraju Rangarju's case (supra), decided by a three Judge Bench of the Supreme Court, which is applicable to the case, in hand, on all fours, any principle of law, laid down, to the contrary, on the same point, in Deep Chand Jain and others' and Delhi Administration's cases (supra), shall not hold the field. In this view of the matter, no help can be drawn, by the Counsel for the petitioner, from the cases, relied upon by him, and referred to, in this paragraph. The orders impugned, therefore, in my considered opinion, do not suffer from any illegality or infirmity, and are Crl. Misc. No.50367-M of 2006 6 liable to be upheld. 8. For the reasons recorded above, the petition, under Section 482 Cr.P.C., for quashing the impugned orders dated 23.5.2006, (Annexure P-1), and dated 12.1.2006, (Annexure P-2), being devoid of merit, is dismissed. Any observation made, in this order, shall not be taken, as an expression of mind, on merits of the case. October 23, 2008 (SHAM SUNDER) Vimal JUDGE