IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 No. 147 OF 2003 M/s Sethi Brothers ………Applicant. Versus State of Uttaranchal and another. …..…….Respondents. Mr. Lokendra Dobhal, learned counsel for the Applicant. Mr. S.S. Adhikari, learned A.G.A. for the State/Opp. Parties. 30th September, 2008 Hon’ble P.C. Verma, J. This application filed U/s 482 Cr..C. is directed for quashing the order dated 22nd March, 2002 and 15.4.2003 passed by the Chief Judicial Magistrate, Uttarkashi and Sessions Judge, Uttarkashi respectively in Criminal Case No. 883 of 2000 State Vs. Devendra Singh under Section 7/16 of the Prevention of Food Adulteration Act pending in the court of Chief Judicial Magistrate, Uttarkashi. 2. Brief facts of the case are that the complaint case was filed by the Food Inspector under the Prevention of Food Adulteration Act, 1954 against one Devendra Singh, S/o Sri Bachan Singh, General Merchant, R/o Pahi, P.O. Malla, P.S. Maneri, District Uttarkashi. 3. The complaint was for violation of under Section 7/16 of the Prevention of Food Adulteration Act, 1954. 2 This fact is not in dispute that the accused owns a General Merchant Shop near Bhatwari, P.S. Maneri, District Uttarkashi and sells mustered oil. 4. On 24.6.2000 at about 1200 in the noon, the Food Inspector of the Area found accused Devenra Singh selling mustered oil near Bhatwari, P.S. Maneri, District Uttarkashi and he took sample of the mustered oil No. UKI-074/2000 F.J. 009/2000 in three differed dried bottles containing same quantity in each bottle according to the procedure prescribed after paying cost of the same. He prepared all the necessary documents on the spot and got the signatures on the same and thereafter, according to the prescribed procedure, the sample was sent for analysis to Public Analyst, Uttar Pradesh, Lucknow with Memorandum –7 through registered parcel No. 0577 dated 13.7.2000. Rest two samples were sent to Chief Medical Officer (Health), Incharge, Uttarkashi for necessary action with Memorandum –7 of the Prevention of Food Adulteration Act, 1954. Analyst carried on the analysis and reported that the sample was found to be adulterated vide his report No. 7145 dated 25.8.2000. 5. On 1.9.2000, the opposite party no. 2 made an application to Chief Medical Officer, Uttarkashi for sanction to initiate a criminal proceeding against Devendra Singh. On 6.9.2000, the Chief Medical Officer, Uttarkashi granted his written permission to initiate proceedings against Mr. Devendra Singh, S/o Mr. Bachan Singh, R/o Village Pahi, Post Malla, Police station 3 Maneri, District Uttarkashi for adulteration of mustered oil. On 16.1.2002, accused Devendra Singh moved an application under Section 319 of Cr.P.C. read with Section 20(a) of the Prevention of Food Adulteration Act to implead M/s Sethi Brothers, 109, Adarsh Gram, Pushkar Mandir Marg, Rishikesh, District Dehradun, from whom, the accused Devendra Singh had purchased the said mustered oil canister as party in Criminal Case No. 883 of 2000. In support of his contention, accused Devendra Singh filed an affidavit and a receipt dated 23.6.2000. Thereafter, on 22.3.2002, the Chief Judicial Magistrate, allowed the application of Mr. Devendra Singh and directed the present applicant to appear on 29.4.2002 for giving explanation into the matter. Against the said order, the applicant preferred a Revision No. 35 of 2002 M/s Sethi Brothers Vs. State of Uttaranchal and another before the Sessions Judge, Uttarkashi, but the said revision was rejected vide order dated 15.4.2003. Against the said order, the applicant has come up with this application filed under Section 482 of the Cr.P.C. 6. As per the report, the samples were not as per standard prescribed, thus, there was violation of Section 7 (i), 2(10), of the Prevention of Food Adulteration Act, 1954, Rule 44 of the Prevention of Food Adulteration Rules, 1955, accordingly, there was a commission of offence under Section 16(1) of the Prevention of Food Adulteration Act, 1954. Section 7 of the Act is reproduced here as under: 4 “7. Prohibition of manufacturer, sale, etc. of certain articles of food.—No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute— (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority [in the interest of public health;] [***] (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder, [or] [(vi) any adulterant. Explanation—For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in Cl. (iii) or Cl. (iv) if he stores such food for the manufacture therefrom of any article of food for sale.]” 7. A perusal of the above quoted Section shows that the prohibition is only on the manufacturer who either himself or by any person in his behalf manufacture for sale, or store, sell or distribute any adulterated food, any misbranded food or any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence or any article of food the sale of which is for the time being prohibited. Section 16 of the Act provides the punishment for commission of offence 5 under Section 7 of the Prevention of Food Adulteration Act. From the report of the Food Inspector, it is clear that sample has been taken from an opened Canister and on analysis, the material contained in that Canister has been found to be adulterated, which is in violation of Rule 44 of the Prevention of Food Adulteration Rules, 1955, then it is an offence under Section 16 of the Prevention of Food Adulteration Act, 1954, which is prohibited by Section 7 of the Act. 8. Thus, in case, an open Canister of edible oil (mustered oil) is found to be adulterated, then adulteration is attributed to all vender(Devendra Singh and the distributor (present applicant M/s Sethi Brothers). The sample had been taken from the shop of Mr. Devendra Singh, S/o Bachan Singh, but the same was purchased from M/s Sethi Brothers –present applicant, therefore, it cannot be held that only vendor-Mr. Devendra Singh has committed offence of food adulteration and not M/s Sethi Brothers (the distributor). 9. Therefore, applicant appears to be liable for commission of an offence under Section 16 read with Section 7 of the Act and the charges leveled against the applicants appear to be justified. 10. Learned A.G.A. has submitted that the statement of the complainant was recoded under Section 244 Cr.P.C. before the Chief Judicial Magistrate, Uttarakashi and as per the statement of the complainant, the sample was 6 taken from the shop of the accused Devendra Singh and the sample was taken from the open Canister of the mustered oil and the impleadment of the applicant was genuine. 11. In the present case admittedly the Canister fromwhere the samples were taken was found to be tampered/opened, therefore, the liability goes upon both distributor as well as the seller. 12. In view of the facts and circumstances of the case, the provisions of Section 7 of the Prevention of Food Adulteration Act as submitted by the learned Government Advocate are fully attracted. 13. For the reasons recorded above, in exercising of powers under Section 482 Cr.P.C., I find the proceedings initiated against the applicant perfectly justified and the order dated 22.2.2002 and 15.4.2003 passed by the Chief Judicial Magistrate, Uttarkashi and Sessions Judge, Uttarkashi respectively are affirmed. 14. Application filed U/s 482 Cr.P.C. is dismissed. No order as to costs. (P.C. Verma, J.) 30.9.2008 Rathour