Court No. - 20 Case :- MISC. BENCH No. - 6341 of 2010 Petitioner :- Awdhesh Kumar Agnihotri, Respondent :- State Of U.P., Thru. Secretary, Health & Others Petitioner Counsel :- Praveen Tripathi,Som Nath Respondent Counsel :- G.A. Hon'ble Raj Mani Chauhan,J.
Hon’ble Virendra Kumar Dixit,J.
Heard learned counsel for the petitioner, learned A.G.A. and
perused the record.
This writ petition under Article 226 of the Constitution of India has
been filed by the petitioner for quashing the impugned F.I.R.
registered at Police Station Alambagh District Lucknow in case
Crime No.181 of 2010 under Sections 272, 273 I.P.C. read with
Section 23 (Kha) of Khadya Upmishran Adhiniyam, 1954 and
also for direction to the opposite parties not to arrest the
petitioner in pursuance of the said impugned F.I.R.
The submission of the learned counsel for the petitioner is that
the petitioner Awdhesh Kumar Agnihotri is the Manager of
M/s.Shyam Traders, situated in premises C-7, Talkatora,
Industrial Area, Police Station Alambagh, Lucknow, which
manufactures Gutka/Pan Pasala under the licence granted by the
appropriate authority. The Flying Squad of food departments in
the presence of Smt.Sunita Singh, Deputy Superintendent of
Police inspected the premises of the petitioner and collected the
sample of Gutka observing the requisite formalities. The samples
were sent to the public analyst for its analysis, which after
analysis were found containing “Gambier”. The sample were
accordingly reported to be adulterated.
The learned counsel for the petitioner submits that on the basis
of public analyst report, the Food Inspector had filed three
separate complaints under Prevention of Food Adulteration Act in
the court of Magistrate concerned against the petitioner, which
are still pending. The complainant thereafter lodged the
impugned F.I.R. under Sections 272/273 I.P.C. at Police Station
Alambagh, Lucknow. Learned counsel submits that on the same
facts three complaints were already pending against the
accused-petitioner therefore, the impugned first information
report could not be lodged by the complainant on the same facts
under Section 272 I.P.C. against the petitioner.
Learned counsel submits that the accused in view of provision
under Article 20 (2) of the Constitution of India cannot be
prosecuted and punished for the same offence more than once.
In this case the accused is going to be prosecuted for the fourth
time, which is hit by Article 20 (2) of the Constitution of India. The
further submission of the learned counsel is that the provision
under Section 272 I.P.C. is attracted only when the adulterated
material is found to be noxious. In this case, the public analyst’s
report does not show that the sample was found to be noxious.
Therefore, no offence under Section 272 I.P.C. is made out
against the petitioner-accused. The F.I.R. lodged by the
complainant is, therefore, liable to be quashed.
Learned A.G.A. opposed the petition and argued that in this case
principle of double jeopardy as provided under Article 20 (2) of
the Constitution of India is not attracted. The protection under
Article 20 (2) of Constitution of India will be available only when
there had been prosecution and punishment both. The provision
under Article 20 (2) of the Constitution of India is that no person
shall be prosecuted and punished for the same offence more
than once. The word prosecuted and punished shall be read
together not separately otherwise the word would have been
used as prosecuted or punished. In this case the petitioner can
not avail protection under Article 20 (2) of the Constitution of
India as he is not going to be punished twice for the same
offence. At this stage the F.I.R. lodged against the petitioner is
under investigation. The petitioner can seek the protection of
Article 20 (2) of Constitution of India if he is going to be
prosecuted and punished twice for the same offence which is not
being done. The learned A.G.A. further submits that prevention of
Food Adulteration Act is a Special Act. If any person is guilty of
any offence under prevention of Food Adulteration Act, he may
be prosecuted accordingly irrespective of the fact that the same
act of accused is also offence under the provision of Indian Penal
Code. Unless such offence is deleted from the Indian Penal Code
the accused may be prosecuted under Indian Penal Code too.
Accused, therefore, can be prosecuted under Indian Penal too.
The learned A.G.A. in support of his argument placed reliance in
the case of Shamsul Islam @ Afroz v. State of U.P. and
another, reported in 1999 (38) A.C.C.
We have gone through the record and the allegations made in
the F.I.R. which disclose the commission of cognizance offence.
We do not find any ground to quash the F.I.R., which is liable to
be dismissed.
The petition is devoid of any merits and is accordingly
dismissed.
However, keeping in view the facts and circumstances of the
case, it is observed that in case after investigation the charge
sheet is filed against the petitioner, he may raise his objection
before the trial court. It is further observed that in case the
petitioner appears before the trial court and moves any bail
application, the same will be disposed of by the courts below
expeditiously.
Order Date :- 15.7.2010
Sks