Criminal Misc. No. 47519-M of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 47519-M of 2004 Date of Decision: 01.12.2008 1. P.K. Godara, Manager (P&A), Hero Honda Motors Ltd. Daruhera, District Rewari, nominee of Hero Honda Motors Ltd. 2. Hero Honda Motors Limited, Daruhera, through its representative Sh. P.K. Godara, Manager (P&A), Hero Honda Motors Ltd., Daruhera, District Rewari. ... Petitioners Versus State of Haryana through Government Food Inspector, Rewari District, Rewari (Haryana). ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Hemant Bassi, Advocate, for the petitioners. Mr. A.K. Jindal, AAG, Haryana, for the respondent – State. SHAM SUNDER, J. This petition, under Section 482 Cr.P.C., has been filed by the petitioners, for quashing the complaint (Annexure P4), bearing No. 116/21/5/2002, titled 'State Vs. Shri P.K. Godara & Hero Honda', under Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be called as the Act only), pending in the Court of the Chief Judicial Magistrate, Rewari, the order dated 11.11.2003 (Anneuxre P9) and the order dated 09.09.2004 (Annexure P11), as also the subsequent proceedings, arising therefrom. 2. Briefly stated, the facts of the case, are that a sample of curd of mixed milk, was taken on 20.03.2002, from the canteen, set up in the factory of Criminal Misc. No. 47519-M of 2004 2 petitioner No. 2, for its workers. As per the report of the Public Analyst, dated 30.04.2002, the sample, contained 8.04% of milk solids not fat, against the minimum specified limit of 8.5%, as laid down, for curd (dahi), prepared from mixed milk, under item No. A.11.02.04 of the Prevention of Food Adulteration Rules, 1955. Thereafter, a complaint, under Section 7 of the Act, was filed by the Government Food Inspector, against the petitioners. 3. I have heard the Counsel for the parties, and have gone through the record of the case, carefully. 4. The Counsel for the petitioners, in the petition, as also, at the time of arguments, submitted that after the receipt of the report of the Public Analyst, to the effect that the sample of curd was adulterated, the petitioners exercised their right, specifically vested in them, under Section 13 (2) of the Act, for sending the second portion of the sample, for analysis, to the Central Food Laboratory, Mysore. It was further submitted that the second portion of the sample, was produced, in the Court, and was sent for analysis, by the Central Food Laboratory. It was further submitted that the sample was probably not properly packed. The report of the Central Food Laboratory, dated 21.10.2002, was received, as under:- "The liquid portion of the sample bottle was found to have leaked out leaving behind the solid portion, thus, rendering the sample unfit to carry out test/analysis for different constituents of curd as laid down under the provisions of the P F A Act, 1954, and the rules thereof." It was further submitted that, when the report of the Central Food Laboratory, was conveyed to the petitioners, by the Court, they (petitioners) again requested the Court that third portion of the sample, be sent to the Central Food Laboratory for analysis, in pursuance of the right vested in them, under Section 13(2) of the Act. Resultantly, third portion of the sample was produced, in the Court, and the same was sent for analysis by the respondent, at the cost of the petitioners. It was further submitted that the report received from the Director, Criminal Misc. No. 47519-M of 2004 3 Central Food Laboratory, Mysore, dated 06.08.2003, is as under:- "The liquid portion of the sample completely leaked out, leaving behind small quantity of solid mass, thereby rendering the sample unfit to carry out tests/analysis for different constituents laid down for curd under the provisions of PFA Act, 1954, and the rules thereof." It was further submitted that, on account of non-analysis of the second and the third portions of the sample of curd, on account of leakage of the contents thereof, by the Central Food Laboratory, the petitoners were deprived of their valuable right, vested in them, under Section 13(2) of the Act. It was further submitted that the petitioners were deprived of their valuable right, on account of the negligence of the respondent, and there was no fault of their's. It was further submitted that, on account of defeat of the valuable right of the petitioners, due to the negligence and fault of the respondent, the proceedings, against them, initiated by way of complaint, referred to above, could not continue and the orders impugned, were also liable to be set aside. 5. The Counsel for the respondent, in reply, as also, at the time of arguments, admitted that the report of the Public Analyst regarding the sample of curd was received that the same was adulterated. It was admitted that the report was conveyed to the petitioners, and they exercised their right, as envisaged by the provisions of Section 13(2) of the Act, for sending the second portion of the sample to the Central Food Laboratory. It was also admitted that the second portion of the sample was sent to the Central Food Laboratory duly packed. If the contents thereof, leaked in the transit, that was not the fault of the prosecution. It was further admitted that the report, with regard to the second sample, was received that the same could not be analyzed, on account of the leakage of contents. Thereafter, an application was moved by the petitioners for sending the third portion of the sample, to the Central Food Laboratory. It was also admitted that the third portion of the sample was sent to the Central Food Laboratory, but again the report was received, that it could not be analyzed, due Criminal Misc. No. 47519-M of 2004 4 to leakage of the contents thereof. It was further submitted that from the proceedings of the Court, where the complaint is pending, it is evident that the second and third portions of the sample, sent were duly packed, and sealed. It was further submitted that the petitioners might have connived with the postal authorities, resulting into leakage of the liquid portion of the samples. It was further submited that had the second and third portions of the sample, been not analyzed, on account of the fault of the respondent, the petitioners could certainly take benefit thereof, that their valuable right, under Section 13(2) of the Act, was defeated. It was further submitted that, on the basis of the report of the Public Analyst, in the circumstances of the case, the prosecution could continue, against the petitioners. 6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is a fit case, in which the petition, should be accepted, 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 Criminal Misc. No. 47519-M of 2004 5 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 powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. 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 order of a Magistrate as contemplated under Section 155(2) of the Code. Criminal Misc. No. 47519-M of 2004 6 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. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon 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. 7. Now adverting to the facts of the instant case, it may be stated here, that the petitioners exercised their right vested in them, under Section 13(2) of the Act, immediately, on receipt of the report of the Public Analyst. It was on the basis of the right, which vested in the petitioners under Section 13(2) and which they exercised, that the second portion of the sample was sent to Central Criminal Misc. No. 47519-M of 2004 7 Food Laboratory. The Central Food Laboratory, could not analyse the same, because the liquid contents thereof, leaked. Similarly, the third portion of the sample could also not be analyzed by the Central Food Laboratory, as the contents thereof, leaked in transit. There was no fault, on the part of the petitioners, in the leakage of the contents of the second and third portions of the sample. Had the petitioners been, at fault, the matter would have been different. Under these circumstances, it would have been said that, on account of their fault, the analysis of the second and third portions of the sample could not be made by the Central Food Laboratory and, as such, they could not be heard to say that their valuable right, under Section 13(2) of the Act, was defeated. In Harbans Lal Vs. State of Punjab, 1997(2) RCR, 759, the sample of curd was found to be adulterated, by the Public Analyst. The second and third portions of the sample, were sent to the Central Food Laboratory, but they leaked and, ultimately, the applicant was acquitted. In Narinder Singh and Another Vs. State of Punjab, 1985(1), Prevention of Food Adulteration Cases, 120, the Public Analyst, gave the report that the sample was adulterated. Thereafter, the second portion of the sample was sent for analysis to the Central Food Laboratory. The same could not be analyzed, on account of decomposition thereof. In these circumstances, it was held, in the proceeding, under Section 482 Cr.P.C., by this Court, that on account of non-analysis of the second portion of the sample, by the Central Food Laboratory, due to decomposition thereof, the valuable right of the petitioners had been seriously breached, and, even if, they were tried in the complaint filed by the Government Food Inspector, no conviction could be recorded, against them, on the basis of the report of the Public Analyst. In these circumstances, it was held that the continuance of the trial of the petitioners, on the complaint of the Government Food Inspector, would amount to the abuse of the process of the Court. Ultimately, the complaint and the subsequent proceedings were quashed. In Ranju Sharma Criminal Misc. No. 47519-M of 2004 8 Vs. State of Haryana, Volume XX-1993, The Criminal Law Times, 329, sample was sent for analysis to the Central Food Laboratory. The bottle was found to be broken, for no fault of the petitioner, and, as such, the sample could not be analyzed. In these circumstances, in proceedings, under Section 482 Cr.P.C., this Court held that the continuance of complaint, as also the subsequent proceedings, arising therefrom, would amount to the abuse of the process of Court. Ultimately, the proceedings, were quashed. In Municipal Corporation of Delhi Vs. Ghisa Ram, AIR, 1967, SC, 970, the Apex Court, recognized that the right vested in the accused, under Section 13(2) of the Act, was a valuable right, to get the sample reanalyzed from the Central Food Laboratory. In paragraph 7, the Apex Court, held, as under:- "It appears to us that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analyzed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that, that right will not be denied to him. The right is a valuable one, because the cetificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be also to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein." 8. Relying on the principle of law, laid down, in the aforesaid cases, cited by the Counsel for the petitioners, only one and one conclusion, that can be arrived at, is that, on account of the negligence and fault of the respondent, the second and third portions of the sample could not be reanalyzed by the Central Food Laboratory, as a result whereof, the valuable right of the Criminal Misc. No. 47519-M of 2004 9 petitioners, under Section 13(2) of the Act, was defeated. The report of the Central Food Laboratory supersedes the report of the Public Analyst. As stated above, had there been any fault, on the part of the petitioners, it would have been said that they could not claim that their valuable right, under Section 13(2) of the Act, was defeated. This case is covered by category 6 enumerated in Bhajan Lal's case (supra). In this view of the matter, the complaint (Annexure P4), bearing No. 116/21/5/2002, titled 'State Vs. Shri P.K. Godara & Hero Honda', under Section 7 of the Act, pending in the Court of Chief Judicial Magistrate, Rewari, the order dated 11.11.2003 (Anneuxre P9), the order dated 09.09.2004 (Annexure P11), and the subsequent proceedings, arising therefrom, if allowed to continue, that would amount to sheer abuse of the process of Court and promote injustice. In these circumstances, the complaint aforesaid, the orders passed therein and the subsequent proceedings, arising therefrom deserve to be quashed. 9. The Counsel for the respondent, however, submitted that, if the contents of the second and third portions of the sample leaked during transit, there was no fault of the prosecution. He further submitted that, under these circumstances, the report of the Public Analyst, could be relied upon, for coming to the conclusion, that the sample was adulterated. He further submitted that even in Municipal Corporation of Delhi's, case (supra), such a principle of law, was laid down, by the Apex Court. The submission of the Counsel for the respondent, in this regard, does not appear to be correct. If the contents of the second and third portions of the sample, leaked, it could be inferred that the same were not properly packed. Had the same been properly packed, the question of leakage of contents of the same, would not have arisen. There is nothing, on the record, to indicate that the petitioners had, at any point of time, access to the second and third portions of the sample, during the transit thereof. Whatever may be the case, since there was no fault of the petitioners, on Criminal Misc. No. 47519-M of 2004 10 account whereof, the contents of the second and third portions of the sample leaked, non-analysis thereof, by the Central Food Laboratory, certainly defeated their valuable right. In these circumstances, the report of the Public Analyst cannot be taken into consideration, for holding that the sample was adulterated. In Municipal Corporation of Delhi's, case (supra),the Apex Court, only held that, in case, the second portion of the sample, could not be reanalyzed, by the Central Food Laboratory, on account of the fault of the accused/petitioners, then the report of the Public Analyst, could be taken into consideration, and the accused will not become entitled to acquittal. In the instant case, the facts are clearly different. No help, therefore, can be drawn, by the Counsel for the respondent, from the proposition of law, laid down, in Municipal Corporation of Delhi's, case (supra), that, on the basis of the report of the Public Analyst, the prosecution, could continue, when the second and third portions of the sample, could not be re-analyzed, for no fault of the prosecution. In this view of the matter, the submission of the Counsel for the respondent, being without merit, must fail, and the same stands rejected. 10. For the reasons recorded above, petition, under Section 482 Cr.P.C., is accepted. The complaint (Annexure P4), bearing No. 116/21/5/2002, titled as 'State Vs. Shri P.K. Godara & Hero Honda', under Section 7 of the Food Adulteration Act, 1954 (hereinafter to be called as an Act only), pending in the Court of Chief Judicial Magistrate, Rewari, the order dated 11.11.2003 (Anneuxre P9), the order dated 09.09.2004 (Annexure P11), and the subsequent proceedings, arising therefrom, are quashed. 01.12.2008 (SHAM SUNDER) Amodh JUDGE