Criminal Misc. No. M-22827 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-22827 of 2009 Date of Decision: 03.03.2010 Sh. Amit s/o Sh. Sardhanand Sharma, M/s Lemon Soda Water Factory, manufacturer of Soda Water, Hospital Area, Nilokheri, Distt. Karnal. ... Petitioner Versus 1. State of Haryana. 2. Government Food Inspector, Nilokheri, District Karnal. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Pankaj Mehta, Advocate, for the petitioner. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondents. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 99, dated 03.05.07, under Sections 269, 271, 272, 273 and 420 IPC and Section 7 of the Essential Commodities Act, has been filed by the petitioner. 2. The facts, in brief, are that, Government Food Inspector, respondent No. 2, inspected the premises of the petitioner, on 03.05.07, at about 12.30 Noon, at Hospital Area Nilokheri, District Karnala, where he was found in possession of 192 bottles of Criminal Misc. No. M-22827 of 2009 2 carbonated lemon water (banta bottles), for public sale, contained in 8 crates. The Food Inspector, purchased 9 bottles of the carbonated lemon water, from the petitioner, in the presence of the witnesses, which were separated into three equal parts duly sealed. A paper slip, issued by the Local (Health) Authority/District Health Officer, bearing Code No. KN-DH/F1-1/F1-2 Serial No. 2304, duly signed, was pasted, on all the three sample bottles. The seals of the Food Inspector, as also of the Medical Officer, were also affixed thereon. The signatures of the petitioner, were also obtained, on each sample bottles. The signatures of the witnesses were also obtained, on various documents. The impression of the seals, used in sealing the sample bottles, was also taken, on Form VII. Thereafter, a sample bottle alongwith the aforesaid Form VII, were sent, to the Public Analyst, Haryana, Chandigarh. The remaining sample bottles alongwith two copies of Form VII, was deposited with Dr. R.M. Singh, Local (Health) Authority, Karnal. The Public Analyst, vide his report dated 07.07.07, opined that the bottles of the sample, did not carry a label, as required, under Rule 32 of the Prevention of Food Adulteration Rules, 1955, and, as such, the samples, were misbranded. It was further opined, that the samples, did not conform, to the prescribed standards, laid down, for sweetened carbonated water and were, thus, adulterated. The petitioner was, thus, selling the duplicate soda, by representing the same to be genuine, and cheating the public. Consequently, the aforesaid FIR, was registered. 3. I have heard the Counsel for the parties, and, have gone Criminal Misc. No. M-22827 of 2009 3 through the documents, on record, carefully. 4. The Counsel for the petitioner, submitted that the premises of the petitioner, were inspected, by the Government Food Inspector, District Karnal, on 03.05.07, and, 192 bottles of carbonated water lemon (banta bottles), for public sale, were recovered. He further submitted that, the sample, was found to be misbranded, and the complaint, under the Food Adulteration Act was filed. He further submitted that, on the same facts, the instant FIR, under Sections 269, 271, 272, 273 and 420 IPC, could not be registered against the petitioner, and one Manoj Kumar, as the offences, were not constituted. He further submitted that the aforesaid FIR, is nothing but an abuse of the process of the Court. 5. On the other hand, the Counsel for the respondents, submitted that, since the petitioner, was unlawfully preparing duplicate soda water, which he knew, or, had reason to believe, that the same, could spread infection, and by selling the noxious drink, the offences, punishable under Sections 269, 271, 272 and 273 IPC, were made out. He further submitted that, even the petitioner, was cheating the public, at large, by selling the adulterated carbonated soda water, representing the same, to be the genuine soda water and charging the price, from them, for the genuine soda water. He further submitted that the petitioner, thus, committed the offence, punishable under Section 420 IPC. He further submitted that, the mere fact, that a complaint, under the Food Adulteration Act, 1954, was filed, against the petitioner, that the sample of soda water, was found to be Criminal Misc. No. M-22827 of 2009 4 misbranded and adulterated, did not debar the Police, from registering the case, for the aforesaid offences. He further submitted that continuation of the FIR and further proceedings, would not amount to sheer abuse of the process of the Court. 6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered 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 the 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 the 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 Criminal Misc. No. M-22827 of 2009 5 Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category 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 Criminal Misc. No. M-22827 of 2009 6 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. 5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever 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 Criminal Misc. No. M-22827 of 2009 7 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, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. Since the allegations, contained in the FIR, prima-facie constituted the offences, punishable under Sections 269, 271, 272, 273 and 420 IPC, the Police, had the authority, to register a case. The complaint, under Section 7 read with Section 16 of the Food Adulteration Act, 1954, was filed, by the Food Inspector, against the petitioner, only, on the ground, that the sample of soda water, was found to be adulterated. That complaint was not, with regard to the factum, that it was duplicate soda water, which was being prepared, by the petitioner, unlawfully, which he had reason to believe that the same could spread infection. He was selling the said duplicate soda water, representing the same to be genuine soda water and charging the same price, as for the genuine soda water, thereby, cheating the public, at large. In these Criminal Misc. No. M-22827 of 2009 8 circumstances, it could not be said, that the FIR, referred to above, would be sheer abuse of the process of the Court. The same, is not liable to be quashed. 8. For the reasons recorded above, Criminal Misc. No. M-22827 of 2009, 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. 9. It is further directed that the trial Court, shall proceed with both the cases simultaneously, and decide the same, on the same day. 10. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately. 03.03.2010 (SHAM SUNDER) Amodh JUDGE