Criminal Misc. No. M-44558 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-44558 of 2007 Date of Decision: 08.01.2010 Ajay Kumar Sharma s/o Sh. Raj Kumar Sharma, Prop. Sharma Karyana Store, Nangal Road, Garhshankar, Distt. Hoshiarpur (Punjab). ... Petitioner Versus State of Punjab through Dr. Harjit Lal (complainant) Govt. Food Inspector, I/C SHC Baddon, Distt. Hoshiarpur, at present Medical Officer, Civil Hospital, Bathinda. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. G.S. Sawhney, Advocate, for the petitioner. Mr. Abhishek Chautala, AAG, Punjab, for the respondent – State . SHAM SUNDER, J. This petition, under Section 482 Cr.P.C., for quashing the complaint (Annexure P4), dated 02.06.07, under the Prevention of Food Adulteration Act, 1954 (hereinafter to be called as the 'Act' only), pending in the Court of Judicial Magistrate 1st Class, Garhshankar, and, the subsequent proceedings, arising therefrom, has been filed by the petitioner. 2. The facts, in brief, are that, on 10.03.06, at about 2.30 PM, Dr. Harjit Lal, Food Inspector, alongwith Dr. Amarjit, Blood Criminal Misc. No. M-44558 of 2007 2 Transfusion Officer, Civil Hospital, Hoshiarpur, inspected Sharma Karyana Store, where, Ajay Kumar Sharma/petitioner, was found present. He was having about 10 bottles of Kamal Agmark double filtered mustard oil, in his possession, for sale to the public, for consumption. The Food Inspector, disclosed his identity, to the owner of the said concern, and also served a notice, under the Act, on Form No. VI. Thereafter, he demanded the sample out of the aforesaid bottles. The aforesaid form, was signed by the Food Inspector, Ajay Kumar Sharma, the owner of the said concern, Dr. Amarjit, and, Kuldeep Singh, independent witness, joined from the public. Thereafter, the Food Inspector, noted the description, given on the label of the bottle. Ajay Kumar, accused-petitioner, disclosed that, he purchased the bottles of the mustard oil, from Ajit Singh Om Parkash Ltd., Nawanshahr, Doaba, on 11.02.06. The Food Inspector, purchased three bottles of the mustard oil, weighing one liter each, for Rs. 150/-, from Ajay Kumar, accused-petitioner, against proper receipt. The receipt, was signed by the Food Inspector, and Ajay Kumar, and, attested by the aforesaid witnesses. Thereafter, the aforesaid bottles, so purchased, were labelled and wrapped, in a thick paper. A paper slip, duly signed by the Local Health Authority of Hoshiarpur, bearing No. 13815, and Code No. MK/34/2006, was pasted, on the sample bottles, duly sealed, with the seal, bearing impression 'CH'. The signatures of the accused-petitioner, were taken, partially on the slip and partially on the wrapper. The Food Inspector, also signed the same, in the same manner. Thereafter, a Criminal Misc. No. M-44558 of 2007 3 spot memo, duly signed by the Food Inspector, the accused- petitioner, and attested by the aforesaid witnesses, was prepared. One of the sample bottle, duly sealed, was sent, to the Public Analyst, Punjab, Chandigarh, on 10.03.06, through Ashok Kumar, Special Messenger, office of the Civil Surgeon, Hoshiarpur. The remaining two sample bottles, duly sealed, were deposited with the Local Health Authority, on the same day. The report of the Public Analyst, Punjab, was received, who opined, that Agmark Label Number, had not been given, which was mandatory, under the provisions of Rule 15 of the Prevention of Food Adulteration Rules, 1955 (hereinafter to be called as the Rules). It was further opined that green symbol, indicating the product, as vegetarian food, had also not been given. Label declaration that the representative sample, was tested in competent Laboratory, and was certified to be unadulterated, did not comply with Rule 37 of the Rules. Ultimately, it was held, by the Public Analyst, that the sample was misbranded. After completing the formalities, a criminal complaint was filed. 3. Feeling aggrieved, the instant petition, has been filed, by the petitioner. 4. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 5. The Counsel for the petitioner, submitted that, affixing of labels, on the bottles, was the duty of the manufacturer. He further submitted that the bottles, on which, the labels, were affixed, were taken as sample, by the Food Inspector. One sample bottle was sent, Criminal Misc. No. M-44558 of 2007 4 to the Laboratory. He further submitted that, as per the report of the Laboratory, the sample bottle, was having a label 'Kamal Agmark Double Filtered Mustard Oil', with batch number thereon. He further submitted that, the bottles, out of which, the sample, was taken, were kept, by he petitioner, in the same condition, in which, the same, were purchased, by him, from the distributor/manufacturer. He further submitted that, as such, no offence, was committed, by the petitioner, but the Court below, wrongly summoned him, to face trial. He also placed reliance, on Anil Kumar Vs. State of Punjab and another, Criminal Misc. No. M-13035 of 2009, decided on 15.12.09 and M/s Ram Dhan Rikhi Ram Vs. State of Punjab, 2001 (4), RCR (Criminal), 529, in support of his contention. 6. On the other hand, the Counsel for the respondent, submitted that the petitioner, could take defence, that the bottles, were kept, in the same condition, and were not tampered with, before the sample, was taken therefrom. He further submitted that, at this stage, the Court, is only required, to go though the allegations, contained in the complaint, and the documents, attached therewith. He further submitted that, at this stage, it could not be said that, no offence, punishable under the Act, was constituted, from the allegations, contained in the complaint, and the documents attached therewith. He further submitted that the facts of the aforesaid cases, are distinguishable, from the facts of the instant case. 7. After giving my thoughtful consideration to the contentions, raised by the Counsel for the parties, in my considered Criminal Misc. No. M-44558 of 2007 5 opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in following categories of cases, the High Court in exercise of its powes, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable/ non-cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. Criminal Misc. No. M-44558 of 2007 6 However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1)Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2)Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4)Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an Criminal Misc. No. M-44558 of 2007 7 order of a Magistrate as contemplated under Section 155(2) of the Code. 5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudgent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused. 6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge. 8)Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon Criminal Misc. No. M-44558 of 2007 8 and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 8. Now adverting to the facts of the instant case, let us see, as to whether, the allegations, contained in the complaint, do not disclose the commission of an offence, or whether the same are so absurd, as no prudent man, would be able to act upon the same, so as to come to the conclusion, that an offence had been committed by a particular person. The sample was taken from the premises of the petitioner, in accordance with the provisions of law, by the complainant, and when the same, was sent, to the Laboratory, it was found, that Agmark Label number, had not been given, under the provisions of Rule 15 of the Act. Green Symbol, indicating the product, as vegetarian food, had not been given. Label declaration that the representative sample was tested, in the competent Laboratory and was certified unadulterated did not comply with Rule 37 of the Act. The Laboratory, ultimately, vide its report, dated 10.04.05, came to the conclusion, that the sample, was mis-branded. If the sample bottle, which was purchased by the complainant, was supplied by the manufacturer or distributor, against warranty, to the petitioner, it being a defence, which is available, to him, during the trial of this case, cannot be taken into consideration, at this stage of exercising inherent powers, under Section 482 Cr.P.C. It is well settled principle of law, that the Court while exercising its inherent Criminal Misc. No. M-44558 of 2007 9 jurisdiction, under Section 482 Cr.P.C., is only required to take into consideration the allegations, contained in the complaint, and the documents, accompanying the same, and not the probable defence, which might be available to the petitioner, during the course of trial. Section 19 of the Act, reads as under :- “19. Defence which may or may not be allowed in prosecutions under this Act – (1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him, or that the purchaser having purchased any article for analysis was not prejudiced by the sale. (2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves - (a) that he purchased the article of food - (i)in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer, (ii)in any other case, from any manufacturer, distributor or dealer, with Criminal Misc. No. M-44558 of 2007 10 a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. (3) Any person by whom a warranty as is referred to [in Section 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence.” 9. The heading of the Section is very clear, and unambiguous. It relates to the defence, which may, or may not be allowed in prosecution, under this Act. It means that such defence can only be taken by the accused, during the course of trial of the case, and not for the purpose of quashing the proceedings, at the initial stage, under exercise of the inherent jurisdiction, under Section 482 Cr.P.C., by this Court. Not only this, according to Section 19(2)(b), the vendor/dealer is required to prove that the article, while in his possession, was properly stored, and that he sold it in the same state, as he purchased it. No doubt, there is an averment, in the petition, that the bottle was sealed, which was taken as a sample. However, there is no averment, in the petition, that it was properly stored, after the purchase of the same, from the manufacturer. The disputed facts, cannot be adjudicated upon, by this Court, in exercise of its jurisdiction, under Section 482 of the Cr.P.C. The same are required to be adjudicated upon, by the trial Criminal Misc. No. M-44558 of 2007 11 Court. The facts of M/s Ram Dhan Rikhi Ram's and Anil Kumar's cases (supra), are clearly distinguishable, from the facts of the instant case. No help, therefore, can be drawn, by the Counsel for the petitioner, from the principle of law, laid down, therein. The submission of the Counsel for the petitioner, in this regard, being without merit, must fail, and the same stands rejected. 10. No ground, whatsoever, is made out for quashing the complaint, as also the subsequent proceedings, arising therefrom. The petition is, thus, liable to be dismissed. 11. For the reasons recorded above, Criminal Misc. No. M-44558 of 2007, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 12. The Registry shall comply. 08.01.2010 (SHAM SUNDER) Amodh JUDGE