ORDER
S.S. Parkar, J.
1. Heard Mr. Apte for the petitioner and Mr. Deshpande, A.P.P. for respondent No. 2. The respondent No. 1 though served is neither present nor represented by any Advocate.
2. This writ petition has been filed challenging the order dated 25-4-90 passed by the learned Chief Judicial Magistrate, Thane discharging the respondent No. 1 accused who was being prosecuted in Criminal Case-No. 717 of 1986 on the complaint dated 5-12-86 filed by the Food Inspector under the provisions of the Prevention of Food
Adulteration Act, 1954. The allegations in the complaint were that the accused had contravened the provisions of section 7(1) of the Prevention of Food Adulteration Act, 1954 read with Rules of 1955 under Item A. 25.01, the Hard-boiled sugar confectionery. The respondent No. 1 was running a shop known as ‘Prabhat Agency’ and inter alia dealt in retail sale of biscuits, chocolates etc. and the hard-boiled confectionery under Licence No. B-19. The petitioner visited the shop on 19th March 1986 at 9.30 a.m. and purchased 3 sample of hard boiled sugar confectionery (Lemon and Orange) when the respondent No. 1, the owner was present in the said shop and himself sold the articles. The petitioner suspected adulteration and therefore purchased 900 gms. of hard boiled sugar from a plastic bag stamped as Murphy sweets and paid the price against the receipt. He also obtained the signatures of the respondent No. 1 and the pancha on the said receipt. He followed the prescribed procedure for obtaining the sample which was sent to the Public Analyst. The report of the Public Analyst dated 8-5-1986 in Form No. Ill appears on page 49 of the R & P received from the lower Court. According to the said report the sample did not conform to the standards of hard-boiled sugar confectionery as per PFA Rules, 1955. In the above Report of the Public Analyst it is shown that the sample contained Sulphaled Ash 0.1% and Ash insoluble in dil. HCI-nil. The respondent No. 1 accused filed the application dated 3-11-1989 in the Court of the Chief Judicial Magistrate, Thane for discharge on the ground that the ingredients shown in the report of the Public Analyst do not show that the food sample had exceeded the prescribed limits of standards laid down in the Rules. It is pointed out that the report of the Public Analyst tallied with the standards laid down under Rule A. 25.01 which is as follows :
“Hard boiled sugar confectionery.—Hard boiled sugar confectionery shall mean a confectionery product which is a super-cooled solution of a combination of sucrose and liquid glucose (or cane sugar alone) treated with a doctoring agent, such as, cream of tartar (potassium acid tartarate) with or without the addition of one or more of the following:
(a) Permitted flavouring agent;
(b) Permitted colours;
(c) Acidulant;
(d) Filling;
(e) Any other wholesome ingredient, such as, fruit or fruit products or edible fat or milk products or cocoa products or nut products or other wholesome ingredients.
It shall conform to the following specifications;
(i) Ash, sulphated, per cent, by weight [Not more than 1.5].
(ii) Ash insoluble in dilute hydrochloric acid percent, by weight- [Not more than 0.2].
It may contain sulphur dioxide in concentration not exceeding 350 parts per million.”
3. The learned Chief Judicial Magistrate after hearing both the sides by his order dated 25th April 1990 was pleased to discharge the respondent No. 1 accused on the ground that the report of the Public Analyst did not show that the sample in question did not conform to the standards of hard-boiled sugar confectionery. On the contrary the ingredients shown in the report were in accordance with the standard of the Rule which is quoted above.
4. Against the said order of discharge the petitioner who is the Food Inspector who had filed the complaint against the respondent-accused under the provisions of the above Act filed this writ petition challenging the order of discharge.
5. I have heard Mr. Apte for the petitioner and Mr. Deshpande, learned A.P.P. on behalf of the State. I have also perused the complaint as well as the original report of the Public Analyst dated 8-5-1986 and the reasons given by the learned Chief Judicial Magistrate, Thane for recording the order of discharge in favour of the respondent-accused. In the report the Public Analyst opined that the sample did not conform to the standards of hard-boiled sugar confectionery as per PFA Rules, 1955. The ingredients shown in the said report do not exceed the outer limits laid down in the aforesaid Rule. The learned Chief Judicial Magistrate is right when he says that the provision shows the outer limits which he calls as exceeding limits and not minimum limits and the ingredients found by the Public Analyst in the food article as regards Sulphated Ash and Ash insoluble in Oil. HCI were within the limits prescribed under the Rules and, therefore, prima facie, there is no contravention of the Rules.
6. Mr. Apte, the learned Advocate appearing on behalf of the petitioner contends that it is the Public Analyst who will at the time of trial prove as to how the food sample was found not to conform to the standards laid down in the Rules. The contention is devoid of merit. The report of the Public Analyst is admissible in evidence and it is in the form of opinion. When the allegations are made against the accused there must be some basis for the same. The report does not show as to how the food sample did not conform to the standards laid down under the Rules. On the contrary as stated earlier the percentage of Sulphated Ash and Ash insoluble in Dil. HCI shown in the report does not exceed the limits prescribed under the Rules. Hence, prima facie no case is made out against the accused for having contravened the provisions of the Food Adulteration Rules. Neither in the reply filed to the application for discharge on behalf of the prosecution in the lower Court nor in the grounds mentioned in this petition it is demonstrated how the food sample did not conform to the standards laid down under the rules. Even Mr. Apte, the learned Advocate appearing on behalf of the petitioner on being questioned was not in a position to demonstrate on what basis the opinion was given by the Public Analyst that the food sample did not conform to the standards laid down by the Rules of 1955.
7. It that view of the matter there is no substance in the petition. Mr. Apte argued that the accused could not have been discharged under section 239 of the Cr.P.C. as no charge-sheet was filed by the police and the said provision would not be applicable in this case. He further contended that the evidence of the Public Analyst would be led to show how the food sample did not conform to the prescribed standards.
8. As stated earlier the basis has to be laid in the report itself which is in the form of opinion and the opinion cannot be given without pointing out as to how that opinion is formed specially when the contents of the food sample shown in the report go to show that the food sample did conform to the standards laid down under the Rules. Secondly, when the complaint itself does not make out a prima facie case against the accused the Court cannot be asked to take cognizance and make the accused undergo the pangs of trial in a criminal case. If the complaint does not prima facie disclose any offence there is no bar to drop proceedings against the said accused without invoking section 239 of Cr.P.C. The judgment of the Supreme Court in the case of KM Mathew v. Sfafe of Kerala, is very clear on this point.
9. I, therefore, find no substance in this petition and dismiss the same. Rule is discharged.
10. Petition dismissed.
