IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.3600 of 2008 VINOD SHAW @ BINOD SAO Son of Late Gopal Shaw, resident of village Dalpatti, Naya Bazar Lakhisarai, P.S. Lakhisarai and District- Lakhisarai. . . . .. . Petitioner. Versus THE STATE OF BIHAR For the Petitioner : Mr. A.K. Vinayak, Advocate For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------- 9/ 12.04.2010 Heard learned counsel for the petitioner and the State. The petitioner prays for quashing the order dated 15.11.2007, whereby the Additional Chief Judicial Magistrate, Lakhisarai has taken cognizance for the offence under Sections 270, 273 and 420 of the Indian Penal Code and Sections 16(1) G (ii), 16(1- A) (ii) of the Prevention of Food Adulteration Act, 1954 in Lakhisarai (Kabaiya) P.S. case no. 407 of 2007 (G.R. No. 1023 of 2007). The petitioner submits that the Khesari Dal was not recovered from the mill of the petitioner rather the same was seized from a truck standing in front of the mill on the road. Section 20 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as P.F.A. Act) provides that no prosecution for the offence under this Act, should be instituted except by written consent of the Central Government or State Government or a person authorized in this behalf by general or special order by the Central Government or the State Government. He further submits that 44 (A) of Prevention of Food Adulteration Rules, 1955 provides that: “No person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose - 2 - of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale- (a) Kesari gram (Lathyrus sativus) and its products, (b) Kesari dal (Lathyrus sativus) and its products, (c) Kesari dal flour (Lathyrus sativus) and its products, (d) a mixture of Kesari gram (Lathyrus Sativus) and Bengal-gram (Cicer arietinum) or any other gram, (e) a mixture of Kesari dal (Lathyrus Sativus) and Bengal-gram dal (Cicer arietinum) or any other dal, (f) a mixture of Kesari dal (Lathyrus Sativus) flour and Bengal-gram (Cicer arietinum) flour or any other flour”. In support of his submission learned counsel has relied upon a unreported decision in the case of Anil Kumar Vs. State of Bihar disposed of on 08.08.2008 vide Cr. Misc. No. 6273 of 2008. Learned counsel further submits that as there is no notification in the Official Gazette, as such petitioner could not be prosecuted under P.F.A. Act for the alleged violation. Learned counsel also submits that in any view of the matter the seized Kesari Dal was not recovered from his possession nor it was found that the petitioner was selling the same. Learned counsel for the State had produced a copy of notification dated 28.05.2003 issued by the Health Department under 44 (A) of the P.F.A. Rules 1955. He submits that copy of the aforesaid notification was not available earlier and the aforesaid notification was not - 3 - available, as such a few prosecution has been quashed on that ground. It would appear from the aforesaid notification that a copy of the same was transmitted to Superintendent State Publication, Gulzarbagh for being published in the official gazette. In view of the aforesaid fact, I do not find it appropriate to quash the prosecution on the assertion of the petitioner that the same has not been published in the Official Gazette. However, it will be open for the parties to make their respective claims at the time of framing of charge. With the aforesaid observation, this application is disposed of. Uday/ (Samarendra Pratap Singh, J.)