HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Misc. Petition No.181 of 2007
1. M/s. Hindustan Lever Limited
2. K. Venkat Ramani
...Petitioners
Versus
The State of Chhattisgarh
...Respondents {Petition under Section 482 of the Code of Criminal
Procedure, 1973}
! Mr. Surendra Singh, Senior Advocate with Mr. Neeraj
Mehta, Advocate for the petitioners.
^ Mr. Kishore Bhaduri, Additional Advocate General with
Mr. Akhil Mishra, Deputy Govt. Advocate & Mr. Rajendra
Tripathi, Panel Lawyer for the State/respondent.
Honble Mr. T.P. Sharma, J
Dated:27/08/2009
: Judgment
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 Judicial
Magistrate First Class, Raipur in Criminal Complaint Case
No.511/2003 for the offence punishable 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 + 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 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.
3. I have heard learned counsel for the parties and perused
copy of the complaint & copies of other documents filed on
behalf of the petitioners.
4. Brief facts leading to filing of this petition are that
petitioner No.1 is a Company which manufactures Atta and
petitioner No.2 is an appointed nominee of petitioner No.1
under Section 17 (2) of the Act. Other co-accused persons
Shankarlal & Inder Chand are sellers and authorized agents of
the Company to sell the Atta. On 15-9-2001, the sample of
Atta manufactured by petitioner No.1 was 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 of petitioner No.2. Again the Food
Inspector enquired the matter from petitioner No.2 on which
the Company/petitioner No.1 has intimated 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 other co-accused persons.
5. The petitioners have filed this petition under Section
482 of the Code 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 for 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 three
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 valuable right of analysis has been
denied by the prosecution which caused serious prejudice to
the petitioners.
6. Learned Senior Advocate appearing on behalf of the
petitioners argued that petitioner No.1 has intimated the
Assistant Commissioner, Local Health Authority, Food & Drugs
Administration – Chhattisgarh vide its letter dated 7-4-2001
that vide resolution dated 18th December, 2000, the Company
has nominated Mr. Pankaj Agrawal as the Nominee of the
Company for the State of 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.
7. 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 others1 in which
the Apex Court has held that in appropriate case if complaint
does not disclose the commission of offence against the
petitioners, then they may directly approach the High Court
under Section 482 of the Code without approaching the Court
of Judicial Magistrate First Class for discharge or otherwise
quashment of the complaint case pending against them.
Learned Senior Advocate further placed reliance in the matter
of G. Sagar Suri and another v. State of U.P. and others2 in
which while dealing with same question the Apex Court has
held that for filing petition under Section 482 of the Code
filing of any application before the Magistrate for discharge
is not sine qua non. Learned Senior Advocate also placed
reliance in the matter of Municipal Corporation of Delhi v.
Ghisa Ram3 in which the Apex Court has held that inordinate
delay in prosecution – Sample becoming decomposed and hence
impossible of analysis – Accused deprived of his valuable
right – Conviction cannot be sustained. Learned Senior
Advocate further placed reliance in the matter of State of
Haryana v. Unique Farmaid P. Ltd. and others4 in which the
Apex Court has held that in case of parallel provisions in
the Insecticides Act, for re-analyzing the sample after
expiry of the period of use of the insecticide, sending of
sample to Central Insecticides Laboratory is of no
consequence and complaint is liable to be quashed. Learned
Senior Advocate also relied upon the matter of Shri Rohit
Mull and another v. The State of Goa5 in which Goa Bench of
the Bombay High Court has held that sending of notices under
Section 13 (2) of the Act after expiry date of product, right
of petitioners-accused to get samples analyzed from CFL
frustrated and proceedings are liable to be quashed. Learned
Senior Advocate further relied upon the matter of Suresh
Narayanan and others v. State of M.P.6 in which the Madhya
Pradesh High Court has held that milk or milk products like
ice cream etc. gets deteriorated within 10 months from date
of lifting, therefore, sending second sample for examination
to Central Food Laboratory is of no use and allowing the
prosecution of accused would therefore be nothing but abuse
of process of court of law.
8. On the other hand, learned Additional Advocate General
appearing on behalf of the State/respondent vehemently argued
that the Food Inspector has enquired the name of nominee of
the Company from the 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 Agrawal
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. The petitioners 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.
9. 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 of justice. 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 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 of justice on the
principle “quando lex aliquid alicui
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
justitiae 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 show exceptional case for
quashment of criminal complaint against them. Para 9 of the
complaint reveals that firstly, the Food Inspector enquired
the matter relating to nominee of the Company, from the
Deputy Director, Food & Drug Administration, Raipur who
informed the name of petitioner No.2. When the Food
Inspector asked consent from petitioner No.2, petitioner No.1
has informed him vide its 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
Company under Section 17 (2) of the Act. It has been
specifically mentioned in the letter dated 15-2-2002 that Mr.
Pankaj Agrawal is 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 such as 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.
Explanation.-Where a company has
different establishments or branches or
different units in any establishment 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 responsible 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 be launched. It is clear from the enquiry
made by the Food Inspector and the reply received by the Food
Inspector which has been mentioned in para 9 of the complaint
itself that Mr. Pankaj Agrawal was nominated as nominee of
the Company relating to food products 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, admittedly, the
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 + years of its manufacture on 30-5-2003. The
Prevention of Food Adulteration Act, 1954 is a special Act
which 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 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 his 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 have 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 case 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 complaint.
There cannot be two opinions about that.
Then in order to safeguard the right of the
accused to have the sample tested from the
Central Insecticides Laboratory, it is
incumbent on the prosecution to file the
complaint expeditiously so that the right of
the accused is not lost. In the present
case, by the time the respondents were asked
to appear before the Court, expiry date of
the insecticide was already over and sending
of sample to the Central Insecticides
Laboratory at that late stage would be of no
consequence. This issue is no longer res
integra. In State of Punjab v. National
Organic Chemical Industries Ltd., (1996) 10
JT (SC) 480 this Court in somewhat similar
circumstances said that the procedure laid
down under Section 24 of the Act deprived the
accused to have sample tested by the Central
Insecticides Laboratory and adduce evidence
of the report so given in his defence. This
Court stressed the need to lodge the
complaint with utmost dispatch so that the
accused may opt to avail the statutory
defence. The Court held that the accused had
been deprived of a valuable right statutorily
available to him. On this view of the
matter, the Court did not allow the criminal
complaint to proceed against the accused. We
have cases under the Drugs and Cosmetics Act,
1940 and the Prevention of Food Adulteration
Act, 1954 involving the same question. In
this connection reference be made to
decisions of this Court in State of Haryana
v. Brij Lal Mittal, (1998) 5 SCC 343 : (1998
AIR SCW 2240 : AIR 1998 SC 2327 : 1998 Cri LJ
3287) under the Drugs and Cosmetics Act,
1940; Municipal Corporation of Delhi v. Ghisa
Ram, AIR 1967 SC 970 : (1967 Cri LJ 939);
Chetumal v. State of M.P., (1981) 3 SCC 72 :
(AIR 1981 SC 1387 : 1981 Cr LJ 1009) and
Calcutta Municipal Corporation v. Pawan Kumar
Saraf, (1999) 2 SCC 400 : (1999 AIR SCW 346 :
AIR 1999 SC 738 : 1999 Cri LJ 1125) all under
the Prevention of Food Adulteration Act,
1954.
17. In the case of State of Haryana (supra), while
discussing right of accused to get sample re-analysed from
Central Insecticides Laboratory, the Apex Court has taken
into consideration the earlier provisions contained in the
Act and after discussing the authorities under the Act, the
Apex Court has held that sending of sample to Central
Insecticides Laboratory at late stage is of no consequence
and the complaint is liable to be quashed.
18. Further, while dealing with the same question in the
matter of Suresh (supra) and placing reliance in the matters
of Municipal Corporation (supra) & State of Haryana (supra),
the Madhya Pradesh High Court has held that in such
circumstances allowing the prosecution of accused would
therefore be nothing but abuse of the process of the Court.
Same view has been taken by Goa Bench of the Bombay High
Court in the matter of Shri Rohit (supra) in which it has
been held that in case of adulteration of chocolates, notices
under Section 13 (2) of the Act sent to the accused after two
days before date of expiry of the product, right of
petitioners-accused to get samples analyzed from CFL
frustrated and the proceedings are quashed.
19. Dictum of the aforesaid authorities is applicable in the
present case. Launching of prosecution after more than 1 +
years has seriously caused prejudice and the
accused/petitioner No.1 is deprived of its valuable right of
analyzing the sample from the Central Food Laboratory. In
accordance with sub-section (3) of Section 13 of the Act,
certificate or report of the Director of the Central Food
Laboratory is final and supersedes the report given by the
public analyst.
20. In the present circumstances of the case, I am of the
view that the petitioners have been able to make out
sufficient case for quashment of criminal proceeding, under
Section 482 of the Code without approaching the Judicial
Magistrate concerned, and the instant petition is
maintainable as held in the matters of M/s. Pepsi (supra) &
G. Sagar (supra).
21. In the light of the dictums of the Apex Court in the
matters of Municipal Corporation, State of Haryana, Shri
Rohit & Suresh (supra), continuance of criminal proceeding
would amount to abuse of the process of the Court relating to
petitioner No.1.
22. For the foregoing reasons, I deem it a fit case for
invoking the inherent jurisdiction in terms of Section 482 of
the Code. Accoridngly, the petition is allowed. Criminal
proceeding pending before the Judicial Magistrate First
Class, Raipur in Criminal Complaint Case No.511/2003 against
the petitioners namely, M/s. Hindustan Lever Limited & K.
Venkat Ramani is hereby quashed.
JUDGE