Criminal Miscellaneous No.4025 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- RAJEEV KUMAR, SON OF SURESH PRASAD GUPTA, MANER SWEETS, MAURYA COMPLEX, PATNA, POLICE STATION- KOTWALI, DISTRICT- PATNA. ... ... PETITIONER. Versus STATE OF BIHAR ... ... OPPOSITE PARTY. ---- For the Petitioner : M/S Ram Suresh Roy,Sr.Adv. Binod Kumar Singh,Adv. For the State : Mr. Damodar Prasad Tiwary,A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of order dated 22.4.1997 passed by Sub Divisional Judicial Magistrate, Patna in Case No.45 (M) of 1997/Trial No.158 of 1997. By the said order, the learned Magistrate has taken cognizance of offence under Section 16(1) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as Adulteration Act). 2. Short fact of the case is that on 29.8.1995, the Food Inspector had taken 600 grams of Chamcham from Maner Sweets, Maurya Complex and same was sent for analysis examination and on - 2 - receipt of analysis report, it transpired that the Chamcham was adulterated. After receiving analysis report and obtaining sanction from the competent authority, a prosecution report was submitted in the court of Chief Judicial Magistrate, Patna for prosecuting the petitioner under Section 16(1) of the Food Adulteration Act. After submission of the prosecution report by order dated 22.4.1997, the learned Sub Divisional Judicial Magistrate took cognizance of the offence under Section 16(1) of the Act. 3. Aggrieved with the order of cognizance dated 22.4.1997, the petitioner approached this Court, while invoking its jurisdiction under Section 482 of the Code of Criminal Procedure. The present petition was admitted on 28.7.1999. While admitting the case, this Court had directed that during the pendency of this application, further proceedings in Case No.45(M) of 1997/T.R. No.1581 of 1997 pending in the court below shall remain stayed and order of stay is still continuing. 4. While challenging the order of cognizance, Shri Ram Suresh Roy, learned Senior Counsel submits that in the present case, no offence as alleged was committed. He submits that - 3 - no offence under Section 16(1) of the Act is made out on the basis of materials available on record of the case. Learned Senior Counsel for the petitioner, while referring to analysis report, i.e. part of the prosecution report of Annexure-1 at page-18 of the brief, submits that merely on the basis of Chamcham containing starch (Maida), it cannot be said that the said Chamcham was adulterated. Shri Roy, learned Senior Counsel appearing on behalf of the petitioner, while referring to Section 2(ia)(m), submits that merely on the ground that the said Chamcham was added with starch, it cannot be said that the Chamcham was adulterated. He has argued that there is no assertion either in the analysis report or in the prosecution report that the said Chamcham was injurious to health and in absence of such assertion, the Chamcham in question cannot be considered as adulterated and as such the petitioner cannot be prosecuted for being punished for the offence under Section 16(1) of the Act. At this stage, it would be appropriate to quote the provision contained in Section 2(ia)(m), which is as follows : “2(ia) “adulterated”- an article of - 4 - food shall be deemed to be adulterated ............. (m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub- clause. Explanation.- Where two or more articles of primary food are mixed together and the resultant article of food- - 5 - (a) is stored, sold or distributed under a name which denotes the ingredients thereof; and (b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause.” 5. Shri Ram Suresh Roy, learned Senior Counsel for the petitioner has also argued that for the purpose of preparing Chamcham starch is essential ingredient and without adding starch, there is no possibility for preparing a Chamcham. In course of hearing, learned Senior Counsel for the petitioner submitted that recipe for preparing Chamcham is Chhena, Sugar, Milk and Starch (Maida). He has relied upon a recipe book under the heading of “Mithai” written by Tarla Dalal. Learned counsel has referred to page-31 of the said book, which describes ingredients and the method for preparation of Chamcham. On perusal of page-31, it is evident that starch (Maida) is one of the essential ingredient for preparing Chamcham. 6. On the basis of aforesaid submission, learned Senior Counsel for the petitioner has - 6 - argued that merely because of the fact that certain quantity of starch was found in the Chamcham, which was taken by the Food Inspector, it cannot be considered as adulteration and, accordingly, on the basis of prosecution report as well as analyst report, no offence is made out under the Act. He has prayed for quashing of order of cognizance and all subsequent proceeding pursuant to the prosecution report i.e. Annexure-1 to the petition in Case No.46(M) of 1997 pending in the court of Sub Divisional Judicial Magistrate, Patna. 7. In this case, a counter affidavit has also been filed on behalf of the opposite party- State. Learned counsel for the State Shri D.P.Tiwary, A.P.P. has vehemently opposed the prayer of the petitioner. He submits that Chamcham in question was taken from the Maner Sweets and thereafter, it was sent to public analyst for obtaining report to verify whether the collected Chamcham was adulterated or not. He submits that the analyst report categorically indicates that sample of Chamcham was found adulterated and subsequently, after obtaining sanction from the competent authority, the present prosecution - 7 - report was filed. Learned A.P.P. submits that the learned Magistrate has rightly taken cognizance of offence under Section 16(1) of the Act. It was also argued that at the initial stage that too, while exercising power under Section 482 of the Code of Criminal Procedure, this Court may not interfere. He submits that in this case on the basis of materials available on record, cognizance order was passed and entire materials will be seen by the trial court at appropriate stage. Accordingly, he has prayed for rejection of the present petition. 8. Besides hearing, learned counsel for the parties, I have also examined the materials available on record. It is true that the analyst report mentions that the sample of Chamcham was adulterated as it contain starch (Maida). However the analyst report at page-18 does not specify the quantity of starch (Maida) found in the sample of Chamcham. It also does not indicate as to whether the sample was injurious to health or not. For the purpose of prosecuting the petitioner under the provisions of the Act, it was necessary to indicate that the sample was actually adulterated, which was injurious to health. Besides this, the - 8 - material further indicates that starch was important ingredient for preparation of Chamcham. Meaning thereby that without adding starch, there is no possibility to prepare Chamcham and as such merely because of the fact that sample was found containing starch may not be considered that the petitioner had committed an offence of adulteration. In this case, the sample was collected long back in the year 1995 and the analyst report was prepared in the year 1995. However, prosecution report was filed in the year 1997 vide Case No.45(M) of 1997. Subsequently, order of cognizance was passed on 22.4.1997. However, without any progress in the case by order dated 28.7.1999 passed by this Court, further proceeding in Case No.45(M) of 1997/Trial No.1581 of 1997 was directed to remain stayed and since then, the stay order is continuing. Meaning thereby that for an occurrence, which has taken place in the year 1995, the proceeding has remained pending for such a long time. 9. Keeping in view the fact and circumstances of the present case particularly on the fact that no definite finding was recorded regarding adulteration in strict compliance with - 9 - the act, coupled with the fact of pendency of the case for such a long time, I am of the view that further prosecution in the present case would not be appropriate and as such with a view to prevent abuse of the process of the court and also for the ends of justice, it is necessary to interfere at the initial stage of cognizance and as such the order of cognizance dated 22.4.1997 passed in Case No.45(M) of 1997 is quashed and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 14th May,2010 N.A.F.R./N.H.