M.P. Varma, J.

These two applications have been beard together, in which prayer has been made to set aside the order taking cognizance in both the cases under Prevention of Food Adulteration Act, (hereinafter referred to as the Act) by the Subdivisional Judicial Magistrate, Patna City and for quashing of the proceedings. Criminal Misc. No. 1570 of 1975 has been filed by Bharat Kasera and Criminal Misc. No. 4163 of 1976 has been filed by Satyanarayan Patwari. Common question of law is involved in both the applications and they have been beard together and this judgment will govern both the cases.

2. petitioner Satyanarain Patwari in Cr. Misc. No. 4163/75 carries on his business in the name and style of a firm known as M/s Jaishree Biscuit company. On 28.11.74, the Food Inspector Sari I.C. Bhusan purchased 600 grams of Sujji (kept for the purpose of manufacturing Buiscuits) from Ram Sundar Das, Managr of the said firm: and after observing all functions of sealing, one such sample was sent to the Public Analyst Bihar, Patna, for analysis. On receipt of the report, that it Was adulterated, the Food Inspector filed a petition of complaint in the court of the Subdivisional Judicial Magistrate, Patna City, against this petitioner Satyanarayan Patwari and the Manager of the Firm for prosecution on which the learned Sub-divisional Judicial Magistrate took cognizance of the offence under section 16 (1) of the Act, and the petitioner was thus put on trial.

3. In the other case, Cr. Misc. 1570 of 1975 petitioner Bharat Kasera was found selling Haldi in his business premises known as ‘Kasera Trading Company’. The Food Inspector took sample of Haldi after observing the formalities from his shop which was sent to the Public Analyst, who found Haldi to be adulterated and it contained excess of lead and lead chrome. The Food Inspector filed a complaint before the Subdivisional Judicial Magistrate, who took cognizance under section 16 (1) of the Act, by order dated 1.3.75 and thus this petitioner also has been put on trial. The prosecution in this case has been challenged on the ground that the case does not fall within the ambit and scope of section 16 of the Act, and there being no allegation in the petition of complaint that the petitioner was either Incharge or responsible for the conduct of the business of the company and the offence was committed with his knowledge, consent or connivance.

4. I have heard the learned counsel for the petitioners and have seen the counter affidavit filed by the Inspector. I have also carefully examined the petition of complaint. In my opinion, It cannot be said that the complaint has been filed only against the firm and It does not constitute any offence against the petitioner. A copy of the petition of complaint is Annexure 2 and on perusal where of, I find that this complaint has been filed on a prescribed form in which column I is meant for mentioning the name of the accused, In column-2 of it, the father's name of the accused is to be noted, In column-3 his address and in column-3 brief description of the offence is to be filled in. There are other columns also which are not relevant for the purpose of deciding the question raised in this petition. From the complaint it is clear that the petitioner himself sold Haldi which was found to be adulterated. In column no. 4 only his address has been noted as M/s Kasera Trading Corporation, Maroofganj, Patna City, but he was present at the time when sample was taken which will be clear from Annexure-1. Thus, it cannot be held that the petitioner was not responsible for sale and conduct of the business of the concerned articles. There is no force in this submission.

5. A common question of law bas been raised in both the applications that the Food Inspector failed to comply with the provision as contained in rule 9 (j) of the Prevention of Food Adulteration Rules, 1955 (hereinafter called the Rules). It has been contended that the rule is a mandatory and non