Criminal Misc. No. M-5675 of 2008.
-1-
In the High Court of Punjab and Haryana at Chandigarh.
Criminal Misc.No.M-5675 of 2008.
Date of decision:12-9-2008.
Shiv Kumar
...Petitioner.
Versus
State of Punjab.
...Respondent.
...
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr. Rajesh Gupta Advocate for the petitioner.
Mr. K. S. Pannu, AAG Punjab.
...
K. C. Puri, J.
Judgment.
This common judgment will dispose of present Criminal
Misc. as well as Criminal Misc.M-13657 of 2008 as both the cases
have arisen out of same facts and relief claimed is also the same.
Facts have, however, been extracted from the instant petition.
In this petition, the petitioner seeks quashing of FIR
Criminal Misc. No. M-5675 of 2008.
-2-
No.305 dated 6.11.2007, under Sections 420/269/270/271 IPC,
Police Station City Samana, District Patiala.
As per allegations, on 6.11.2007, ASI Bhagwan Dass of
Police Station City Samana and HC Viney Kumar, No.2208, HC
Kuldip Singh, No.2728, CD Jaspal Singh No.1079, Constable
Chamkaur Singh No.497, Constable Balkar Singh No. 2018 were
travelling in Government vehicle bearing No.PB11-Y-8104 which
was being driven by OC Shamsher Singh No.849 and were present
at old Bus Stand for the purpose of March and Checking. Then,
special informer informed that Shiv Kumar son of Shri Ram Lal,
caste Aggarwal, resident of Garh Mohalla, Samana who was
running a shop by the name of Ashwani Refreshment at Chakla
Bazar, Samana supplied fake Paneer to the public at his shop.
Because of eating fake Paneer, one can fall sick or dangerous
disease can spread. His action disclosed offences punishable under
Sections 420, 269, 270 and 271 IPC. Smt. Usha Dhingra, C.M.O,
Patiala was requested for sending Food Inspector at the spot. ASI
Bhagwan Dass sent ruqqa through Constable No.2018 to the Police
Station for getting a case registered. On the basis of said facts, FIR
No.305 dated 6.11.2007 under Sections 420/269/270/271 IPC was
registered at Police Station, City Samana.
Criminal Misc. No. M-5675 of 2008.
-3-
The petitioner filed the present petition for quashing the
said FIR on the grounds that the allegations against the petitioner
fall within the ambit of Food Adulteration Act, 1954. It is further
pleaded that under Section 20 of the said Act, no prosecution can
be launched without the written consent of the Central Government
or the State Government or a person authorized by the Government
in this behalf by general or special order by the Central
Government or the State Government. It is further pleaded that the
sample sent for analysis contained 25.32% milk fat of dry matter
against minimum prescribed standard of 50%. The Paneer
recovered from the accused at the most can be said to be
adulterated. So, action can be taken only under the Prevention of
Food Adulteration Act and FIR under Sections 420, 269, 270 and
271 IPC cannot be proceeded with. A prayer has been made for
quashing the said FIR.
Regarding the same occurrence, complaint No.59 dated
3.5.2008, under Section 16 of Prevention of Food Adulteration
Act, 1954 has been filed by the Food Inspector against the accused.
Another petition (Criminal Misc.No.M-13657 of 2008 )
has been filed for quashing the said complaint, Annexure P-1. The
quashing of the said complaint has been sought on the following
Criminal Misc. No. M-5675 of 2008.
-4-
grounds:-
(i) That the petitioner applied for anticipatory bail, in
this case, before the learned Sessions Judge, Patiala
when the above-said FIR was registered against him and
while allowing the same, the learned learned
Additional Sessions Judge, Patiala, in its order dated
1.12.2007 has observed that milk fat was found to be
less than the minimum prescribed standard and it was
not a case of fake Paneer. The learned Court further
observed that it is a case of Food Adulteration Act for
which complaint lies at the behest of Food Inspector.
The offences under IPC are not made out.
(ii)That Hon’ble Karnatka High Court in State of
Karnatka Versus Shetty Ice Cream Company,
Kulai, Mangalore and others has observed that time
is belatedly ripe to have re-look at the standards
prescribed defining as adulteration with regard to the
edibles,unless the product sold is a health hazard.
Merely because it does not conform to the standards
of best quality, the proprietors and manufacturers
should not be subjected to unnecessary harassment of
Criminal Misc. No. M-5675 of 2008.
-5-
prosecution and punishment. There is a change in the
mindset of the people to go for food items with less or
no fat content. The fat content prescribed for Ice
Cream under the Prevention of Food Adulteration Act
is too high and may not be desirable diet in the
modern times. The second quality Ice Cream with
lesser fat content would be advisable medically than
an Ice Cream with rich fat content. In the present case
also fat content was found to be less in the Paneer and
the ratio of the above mentioned case applies in this
case also. In the complaint (P-1) in Para 12, it is
mentioned that the milk fat contained in the Paneer
was 25.32% against the minimum prescribed standard
of 50.0% and the contents of the sample are therefore
adulterated. It may be mentioned here that at best the
fat content was less in the Paneer. In the modern
times people prefer products with lesser fat content
rather than products with more fat contents. Rather in
the present case no raid whatsoever was conducted by
the respondent. In para No.3 of the complaint (P-1), it
is alleged that respondent raided the shop of the
Criminal Misc. No. M-5675 of 2008.
-6-
petitioner on the complaint of the police to local
health authorities. Whereas version of the FIR is that
the raid was conducted by the police and the CMO
had been informed about the same. It shows that the
present complaint (P-1) is false one and has been
instituted only when the respondent felt that it was
not going to succeed in the present case. In this view
of the matter, complaint (P-1) and summoning order
(P-3) deserve to be quashed.
(iii)That the Hon’ble Delhi High Court in State (Delhi
Admn.) Versus Naresh Chand and others, has held
that faulty procedure of taking sample, loss of fat,
once loss of fat takes place due to faulty procedure of
taking samples, the shop-keeper cannot be convicted.
In the present case, what to talk of faulty procedure of
taking sample, no sample whatsoever was taken at the
time of seizure of alleged fake Paneer. For this reason
also, the present complaint and summoning order
deserve to be quashed.
(iv)That Hon’ble Patna High Court in Satish Mishra
Versus State of Bihar and others, has held that
Criminal Misc. No. M-5675 of 2008.
-7-
Prevention of Food Adulteration Act, 1954, is special
statute, is code in itself, by adding sections of IPC,
police cannot make out its own case. It has its own set
of authorities, which are authorized to conduct
investigation, search, seizure and/or launch
prosecution in respect thereof including enquiry into
the matter. If police alleges that the provision of
Prevention of Food Adulteration Act is violated then
it was the authority of the Food Inspector alone and
not the police officer to inspect or seize. So far as the
offences alleged under IPC are concerned, none is
made out on the facts of the case. The present
prosecution as initiated on the basis of the FIR
aforesaid and all subsequent acts thereunder are held
to be wholly without jurisdiction and are quashed.
(v)That para No.3 of the complaint (P-1) says that 150
kg. Paneer was seized from the shop of the petitioner.
Whereas the Act says that the Food Inspector has to
purchase the product from the person concerned and
there is no question of seizing of the whole Paneer.
This shows that complaint (P-1) is false.”
Criminal Misc. No. M-5675 of 2008.
-8-
Both the petitions have been resisted by the State of
Punjab.
I have heard both sides and have gone through the
record of the case.
So far as the facts of the case are concerned, the same
are not in dispute. A raid was conducted at the shop of
accused/revisionist. The Food Inspector visited the shop and had
taken into possession Paneer. Sample of the said Paneer was sent
for analysis and the same contained 25.32% milk fat of dry matter
against minimum prescribed standard of 50% and, on that count,
the Paneer is stated to be adulterated.
So far as the fact that Paneer is fake one, there is no
report to this effect on the file. The Patna High Court in the
authority in case Satish Mishra Versus State of Bihar and
others, 2007(1) FAC 393 has held that when there is a special
statute under the Prevention of Food Adulteration Act, 1954 then
by adding sections of IPC, FIR cannot be launched. Keeping in
view the fact that Paneer was not found to be fake but was found
to be not conforming to the prescribed standard, the proceedings
under the Criminal Act cannot continue. So, FIR No.305 dated
6.11.2007 under Sections 420/269/270/271 IPC, Police Station,
Criminal Misc. No. M-5675 of 2008.
-9-
City Samana and further proceedings arising therefrom stand
quashed.
So far as complaint No.59 dated 3.5.2008 is concerned,
the case of the revisionist himself is that the prosecution can
proceed under the Prevention of Food Adulteration Act. No case
for quashing the complaint under the said Act is made out. The
observations made by the learned Additional Sessions Judge while
deciding the bail application are also to the effect that proceedings
under the Food Adulteration Act can be initiated. So, in these
circumstances, the petitioner who has himself taken a stand that
proceedings under the Food Adulteration Act can only be initiated
could not seek quashing of proceedings under the Act. Authority in
case Karnatka Versus Shetty Ice Cream Company (supra) is not
helpful at this stage of trial. In that ruling, it has been observed that
time is ripe to have re-look at the standards keeping in view the
requirement of people but since there is no change in the
provisions of the Act and unless and until the said Act is amended,
the said Act has to be implemented in letter and spirit.
Authority in case Naresh Chand (supra) is not helpful
to the accused. Whether the sample was taken by the Food
Inspector is a matter of evidence. Prima-facie, there is nothing on
Criminal Misc. No. M-5675 of 2008.
-10-
the file that the sample was not taken in accordance with the
provisions of the Act.
So far as submission made by the counsel for the
petitioner to the effect that sample has to be purchased from the
petitioner and, on that count, proceedings cannot continue is
concerned, the same is without any substance. The said matter can
also be appreciated during the course of trial.
So, keeping in view the totality of circumstances,
petition for quashing complaint No.59 dated 3.5.2008 stands
declined.
It is, however, made clear that anything said above shall
not be taken as an expression of opinion on the merits of the case,
so far as complaint under the Prevention of Food Adulteration Act
is concerned.
A copy of this judment be sent to the learned trial Court
for strict compliance.
September 12th,2008. ( K. C. Puri ) Jaggi Judge