@w .. HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Misc. Petition No.181 uf 2007 PETITIONERS: 1. M/s. Hindustan Lever Limited, Block No.2,‘Sector 11, C.B.D. Belapur, Navi Mumbai (Maharashtra) K. Venkat Ramani, Manager and Nominee of M/s. Hindustan Lever Limited, Block No.2, Sector 11, C.B.D. Belapur, Navi Mumbai (Maharashtra) Versus The State of Chhattisgarh, H.C. Panji, Food Inspector, Food and Drugs Administration, Raipur (Chhattisgarh) {Petition under Section 482 of the Code of Criminal Procedure, 1973} RESPONDENT: Present: Mr. Surendra' Singh, Senior Advocate with Mr. Neeraj Mehta, dvocate for the petitioners. Mr. Kishore Bhaduri Additionai Advocate General with Mr. Akhil Mishra, Deputy Govt. Advocate & Mr. Rajendra Tripathi, Panel Lawye for the State/respondent. Single B ench: Hon'ble Mr. T.P. Sharma, J ORAL ORDER (27-8~2009) 1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) is for quashment of criminal proceeding pending before the Court of Judiciai Magistrate First Class, Raipur in Criminal Compiaint Case No.511/2003 for the offence punishabie under Section 7 read with Section 16 of the Prevention of Food “ Adulteration Act, 1954 (for short ‘the Act’). 2. Quashment is prayed on the ground that petitioner No.2 K. Venkatramani is not the nominee appointed by petitioner No.1 in the State of Chhattisgarh under Section 17 (2) of the Act, therefore continuance of criminal proceeding against the person not connected with the commission of offence would amount to abuse of the process of the Court. Quashment is also prayed on the ground that prosecution has been launched against petitioner No.1 intentionally & deliberately after lapse of more than 1 1/2 years of the date of taking sample of the food product which was permitted for use within three months from date of its manufacture and any prosecution without i A r affording opportunity of analysis of the sample by the Central Food Laboratory in terms of Section 13 (2) of the Act has caused serious prejudice to petitioner No.1. . I have heard learned counsel for the parties and perused copy of the complaint & copies of other documents filed on behalf of the p rief facts leading to filing of ts petition are that petitioner No.1 is Company which manufactures Atta and petitioner No.2 is an appointed nominee of petitioner No.1 under Section 17 (2) of the s etitioners. . B hi a Act. Other co-accused persons Shankarlal & Inder Chand are seller and authorized agents of the Company to sell the Atta. On 15-9- 2001, the sample of Atta manufactured by petitioner No.1 wa s purchased from accused Shankarlal which was sold to him by co- accused Inder Chand. After completing the formalities and the procedure prescribed, the sample was sent for analysis to the State Public Analyst and on analysis the Atta was found adulterated vide report dated 22-10-2001. Name of nominee of the Company was enquired by the Food Inspector from the Joint Director, Food & Drugs Administration, Raipur who intimated the Food Inspector the name o petitioner No.2. Again the Food Inspector enquired the matter fro petitioner No.2 on which the Company/petitioner No.1 has intimate the Food Inspector vide letter dated 21-2-2002 that Mr. Pankaj Agrawal is nominee for Raipur area. Finally the complaint was filed on 30-5-2003 before the Judicial Magistrate First Class, Raipur who took cognizance of the offence against the petitioners and two oth’e‘ co-accused persons. The petitioners have filed this petition under Section 482 of the Cod on the ground that on the date of alleged offence, petitioner No.2 was not the appointed nominee under Section 17 (2) of the Act fo 'the Company, therefore, petitioner No.2 is not responsible for any offence. The said Atta was manufactured on 10-8—2001 and the sample was taken on 15—9—2001. It was specifically written in the notice given under Section 7 of the Act that “best use before thre months” and the said time expires on 10-11—2001, but the complaint has been filed much after the said date i.e. on 30-5—2003. The accused has a right to analyze the sample by the Director, Central Food Laboratory in terms of Section 13 (2) of the Act, but his \ f m d ‘ r . e r e \ l4? valuable right of analysis has been denied by the prosecution which caused serious prejudice to the petitioners. . Learned Senior Advocate appearng on behalf of the petitioners argued that petitioner No.1 has intimated the Assistant Commissioner, Local Health Authority, Food & Drugs Administration - Chhattisgarh vide its ietter dated 7—4-2001 that vide resoiution dated 18th December, 2000, the Company has nominated Mr. Pankaj Agrawal as the Nominee of the Company for the State o Chhattisgarh under Section 17 (2) of the Act in relation to the storage, sales, distribution and marketing of the entire range of foods including Atta. Further, in reply to the letter dated 7—2—2002, again the Company has intimated the Food Inspector, Food & Drug Administration vide its letter dated 15-2—2002 that Mr. Pankaj Agrawal is nominee under Section 17 (2) of the Act. However, the complainant has not made Mr. Pankaj Agrawal as party and has made petitioner No.2 as party. Therefore, any criminal proceeding against petitioner No.2 is not maintainable and the same is abuse of the process of the Court. . As regards the question of criminal proceeding against petitioner No.1 Company, learned Senior Advocate further argued, it has been specifically mentioned in the food article that “best use before three months", the Atta was manufactured on 10-8-2001, the sample was taken on 15-9-2001 and the same was for use within three months i.e. till 10-11-2001, but the prosecution has been launched on 30-5- 2003 after more than 1 year 6 months. Therefore, even if the Company applies for analysis by the Director, Central Food Laboratory in terms of Section 13 (2) of the Act same would be futile exercise and would be of no help, hence any prosecution and denial of valuable right provided under the Act in favour of the Company would be abuse of the process of the Court. Learned Senior Advocate also submits that the petitioners are competent to approach the High Court directly under Section 482 of the Code without filing any application before the Court concerned who has taken cognizance of the offence against the petitioners. Learned Senior Advocate placed reliance in the matter of M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and othersl in which the Apex Court has held that in appropriate case if complaint ‘ 1 AIR 1998 sc 128 i f l oes t disclose the mmission of oence agait th petitioners, then thy may rectly roh te High Court under St 48 o t e without pproachi the Cour of Juic Magistrate Firs las or discharg or oerwise quashment of th compla case e againt them. Learned nior Advocate fther placed ian in the mater of Sagar ri and another . Sta of nd othersz n which while dealing with me question the ourt s el at for iling petition under Section 482 of t oe filing of ppliction beore he Magstrat or dirge i ot se qua non. Learned Senior Advocate also placed reliance i tter of Muicipa orporation of Delhi v. Gisa 3 in whic the Ape urt that ordinate delay i prosecution — Sample bemi domse nd e me ais — Au lu n cong ecpod a hnce ipossibl of nalys ccsed deprived of his vaable right — Convictio cannot be uaied Learne Snior Advocate further placed reliance in t sstn. d e he maer e of Ha Uqu rad P. a tt of Stat aryan v. nie Fami Ltd. nd ohers4 in x o t i s o ral t which the Ape Curt has held tha n cae f palel vio e nsdes A n r prosins in th Iectici ct, for re-analyzig the sample afte exiry f the piod of u of the insecticide, sending sapl t p o er se of me o Centr Inecticide Labtory is of consequence and colat liabe o be ashe ened Senior Advocae also reli upon th ter of Shr it ll an nother v. e Sat o Ga c Goa Bch f he ombay High Court has held that sending in whih en o t B f notices under Sction 13 (2) of he Act after expiry te of o, right etitioner-accus to get samples aalzed from frsrated ceeings are liable to be uashed. earn enr Advocate further relied on the matter Sresh Nayanan and he v. tate f M.P.6 in whic the Madh re igh Court as held tat milk or milk products like ice crea tc. gs detriorated ithin 10 months from dat o iftin, erore, sendin‘g second sample for examination to Cer Food thef ntal Laorory is o no us and allowig the prosecution accued bat f e n of s ' would therefore be nothing but abuse of process of court of law. On the other hand, learned Additional Advocate General appearing on behalf of the State/respondent vehemently argued that the Food Z AIR 2000 sc 754 ‘ : 2000 1967 AIR Cri.L.J. scw 939 1985 : AIR 1967 c 970 5 2006 (1) FAc 57 .6 2003 (3) M.P.L.J. 60 d no co ff ns e e di appac h ecion 2 f he Cod ang t dial t Cs f e th e int pnding s Se ur relce t G. Su v te U.P. a i sa Apex C ha hd th f he Cd any aa f t ie f scha s n in n the ma nl C h Ram h x Co has held in n al ss ora no mpin is l t qud. Lar t ed e mat i Roh Mu d a Th te f o5 o e t da prduct of psed ny CFL ut and prod q Led Sio up of u ra otrs S o h ya Padsh H h h m e et e w e f lg f . s Inspector has enquired the name of nominee of the Company from he Deputy Director, Food & Drug Administration, who intimated the name of petitioner No.2, therefore, whether petitioner No.2 was, nominee on the date of commission of offence or another person Mr. Pankaj Agrawai was nominee, is a question of fact and at the stage of petition under Section 482 of the Code it is not possible to enquire about the disputed facts. Thepetitioners have not filed application before the trial Court for their discharge on the aforesaid ground and have directly approached the High Court without making exceptional case. The petitioners are required to show that if the allegation made in the complaint is admitted in its face value, even then conviction would not be possible, and therefore, the criminal proceeding may be quashed. But, in the present case, the petitioners admit the allegation made in the complaint and the same is sufficient for their conviction. This is a petition under Section 482 of the Code for quashment of criminal complaint pending before the Court of Judicial Magistrate First Class, Raipur. Power under Section 482 of the Code is exceptional in nature and should be used sparingly. While dealing with exercise of power under Section 482 of the Code in the matter of M/s. Zandu Pharmaceutical Works Ltd. and others v. Md. Sharaful Haque and others7 the Apex Court has held thus, “8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new ' powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends ofjustice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of 7 AIR 2005 sc 9 t ‘ . a w w , any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration ofjustice on the principle "quando /eX a/iquid a/icui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a ‘ person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justifiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” 10.In the present case, the petitioners have directly approached this Court without filing any petition before the Judicial Magistrate First Class. In the circumstances, the petitioners are required to shows xceptional case for quashment of criminal complaint against them. P r ara 9 of the complaint reveals that firstly, the Food Inspecto enquired the matter relating to nomineeNof the Company, from the eputy Director, Food & Drug Administration, Raipur who informe the name of petitioner No.2. When the Food Inspector asked consent from petitioner No.2, petitioner No.1 has informed him vide ts letter dated 21-2-2002 that Mr. Pankaj Agrawal is nominee of the Company under Section 17 (2) of the Act for Raipur region and the Company had sent different copies of letters to the Food Inspector which the complainant has filed along with the complaint. Letter dated 15—2-2002 reveals that Mr. Pankaj Agrawal is nominee of the ompany under Section 17 (2) of the Act. It has been specifically entioned in the letter dated 15—2-2002 that Mr. Pankaj Agrawal is @ 4 e D d i C m nominee of the Company with regard to storage, sales, distribution and marketing of branded staple foods comprising of salt, wheat and wheat products. The petitioners have filed original intimation dated 7-4-2001 sent to the Assistant Commissioner/Local Health Authority, Food & Drugs Administration — Chhattisgarh much before the taking of sample on 15-9-2001 along with a copy of resolution dated 18-12- 2000, which reveals that Mr. Pankaj Agrawal has been nominated as nominee of the Company under Section 17 (2) of the Act in relation to the storage, sales, distribution and marketing of the entire range of foods business excluding tea, coffee, ice creams and frozen desserts to include in particular, (i) Oils and Dairy Fats (ODF) comprising of Refined Oil, Vanaspati, bakery fats Fat spreads & other Vegetable oil products and Dairy Products; (ii) Culinary Products comprising of jams, squashes, ketchup, soups, tomato paste/puree and other processed fruit/vegetable products; (iii) spices, seasonings and dressings, etc. and pre-mixes thereof; (iv) Bakery products including, yeast, baking powders, Corn flour etc; (v) Staples including Atta, salt, sugar, cereals, pulses and preparations thereof; (vi) Powders/Mixes for Preparation of — Soups, (Broths, Sauces, Desserts, Bakers products, Beverages, Syrups, Jellies, Ice creams, Custard, Snacks & Cakes, Energy drinks and other food products; vii) Spreads suchas mayonnaise, tartar etc. & Gravies and mixes thereof; (viii) Confectionary items viz. Jelly bits etc. in the western region including in specific the states of Maharashtra, Madhya Pradesh, Gujarat, Goa, Chhattisgarh and the Union Territory of Daman & Diu and Silvassa. 11.The provisions of Section 17 (2) of the Act read as follows: — “Any company may, by order in Writing, authorize any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated. Exp/anation.——Where a company has different establishments or branches or different units in any estabiishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsibie in respect of such establishment, branch or unit.” 12.Section 17 (2) of the Act authorizes the Company to nominate a nominee of the Company against whom the prosecution may b launched. It is clear from the enquiry made by the Food Inspector and»the reply received by the Food Inspector which has bee mentioned in para 9 of the complaint itself that Mr. Pankaj Agrawal was nominated as nominee of the Company relating to food product especially of wheat & wheat products. Atta is admittedly a wheat product. Details of food products have been mentioned in the resolution dated'18-12-2000 where the specific word ‘Atta’ has also been mentioned. Therefore, admittedly, launching of prosecution against petitioner No.2 after knowing the fact that petitioner No.2 was not the nominee of the Company on the date of alleged commission of the offence and one Mr. Pankaj Agrawal was nominee of the Company, is not sustainable under the law and continuance of such proceeding would amount to abuse of the process of the Court. 13.Section 17 of the Act specifies as to who may be the accused in case of offences by companies i.e. according to clause (a) the nominee and according to clause (b) the company, if nominee is nominated or authorized under sub-section (2) of Section 17 of the Act. 14.As regards the question of continuance of criminal proceeding against petitioner No.1 Company, admittedlyythe Atta was for best use within three months from the date of its manufacture. Report of the analysis reveals that the Atta was found adulterated on 20-10— 2001 much before the date of its best use,i.e. 10—11-2001, but the prosecution has not been launched before 10-11-2001 and it has been launched after 1 1/2 years of its manufacture on 30—5—2003. The Prevention of Food Adulteration Act, 1954 is a special Actwhich provides deterrent punishment and also provides safeguard to the accused. The Act further provides valuable right to analyze the sample from the Director, Central Food Laboratory under Section 13 ‘ (2) of the Act which reads as follows: - “On receipt of the report of the result of the analysis under sub—section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the @ e n s . persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analyzed by the Central Food Laboratory.” 15.As held by the Apex Court in the case of Municipal Corporation supra), inordinate delay in prosecution, sample becoming decomposed and hence impossible of analysis, accused deprives of is valuable right. Para 7 of the said judgment reads thus, “(7) It appears to us that when a valuable right is conferred by S. 13 (2) of the Act on the vendor to thave the sample given to him analysed 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 certificate 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 able 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.” 16.While dealing with the question of valuable right of the accused in ase of the Insecticides Act, the Apex Court has held in the matter of State of Haryana (supra), that sending of sample to Central Insecticides Laboratory at late stage is of no consequence and the complaint is liable to be quashed. Para 11 of the said judgment reads thus, “11. Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory prOVISIons of the Act, the accused have no remedy Procedure for testing the sample is prescribed and if It Is contravened to the prejudice of the accused he certainly has the right to seek dismissal of 'the ( h c 10 complaint. There cannot be two opinions about that. hen i rder to safeguard the right of the accuse o have he saple tested from the Central Insecticis Labratory, it is incumbt on the prosecutio to fe th complaint expeditiously so that the rig of the accused is not lost. In the asked present to c, p £efe the time the Court, he respondents expiry date of were he insectide w already over and sending f sample to the Central Insecticides Larato at hat late tage would be ‘of no consequece. is issu n longer res integr In State of Punjab v. Natial Organic Chic ndustries d., (1996) 10 JT (SC) 480 ts Cur somewhat imilar circumstances said tha t procedu laid down under Section 2 of the A depriv the ccused to hav samle tested y the Centra Insecticides