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2015 Supreme(MP) 722
MADHYA PRADESH HIGH COURT
Sujoy Paul, J.
Sri Prakash Desai and another v. State of M.P.
Miscellaneous Criminal Case No.629 of 2012 (Gwalior);
Decided on 21.9.2015.
Surendra Singh with Sourabh Agrawal for petitioner;
Amit Bansal, Deputy Government Advocate for respondent/State.
Headnote:Criminal P.C., 1973 -- Ss.245(1) and 482 -- Prevention of Food Adulteration Act, 1954 -- S.13(2) -- Prevention of Food Adulteration Rules, 1955 -- R.41 -- petition to quash charge framed under -- petitioner entitled to use word "pure" till 31.12.2001 -- sample taken on 16.5.2001 -- complaint fileld on 22.9.2003 hence has no basis -- charge must be specific, precise and pregnant with necessary details -- action of petitioner does not fall within ambit and scope of misbranded -- after shelf life of product is over -- remedy under section 13(2) of PFA Act is of no use to accused -- impugned order and complaint being vulnerable set aside -- application under section 245(1) of CrPC allowed -- petition allowed.
Held : It is clear that use of word “pure”, by no stretch of imagination, can amount to “misbranding”. Thus, in my judgment, the petitioner should not be compelled to undergo the rigmarole of criminal proceedings. Apart from this, the letter dated 20.9.2001 of Directorate General of Health Service makes it clear that the petitioner was even otherwise entitled to use the word “pure” till 31.12.2001. Admittedly, the sample was taken before the said date on 16.5.2001. For this reason also, the complaint has no basis.
Admittedly, in the present case, the whole case of prosecution is based on the alleged use of word “pure” on the bottle. As analyzed above, the said action of the petitioner does not fall within the ambit and scope of “misbranded”. Thus, the prosecution is like house of cards and cannot sustain judicial scrutiny.
As per forgoing analysis, impugned order and complaint proceedings have become vulnerable. Accordingly, the impugned order dated 11.8.2011 is set aside. The application of petitioner preferred under section 245(1), CrPC, (Annexure P-9) is allowed. Consequently, complaint Case No.494/2003 (renumbered as 534/2004) is set aside. 129(2006) DLT 522 and 2012(4) MPHT 26 relied on. AIR 1992 SC 604, (2014)8 SCCF 340, Criminal Application 3439/2006 decided on 21.6.2010, AIR 1967 SC 970, (1999)8 SCC 190, 2008(3) Scale 563 and 2011(1) FAC 41 referred to.
naM izfØ;k lafgrk] 1973 && /kkjk 245¼1½ rFkk 482 && [kk| vifeJ.k fuokj.k vf/kfu;e] 1954 && /kkjk 13¼2½ && [kk| vifeJ.k fuokj.k fu;e] 1955 && fu-41 && mica/kksa ds v/khu fojfpr vkjksi vfHk[kafMr djus gsrq ;kfpdk && ;kph 'kCn ß'kq)Þ dk 31-12-2001 rd mi;ksx djus dk gdnkj && uewuk 16-5-2001 dks fy;k x;k rFkk ifjokn 22-9-2003 dks izLrqr blfy, dksbZ vk/kkj ugha && vkjksi vko';d C;kSjs ds lkFk fofufnZ"V] ;Fkkor~ rFkk lkjxfHkZr gksuk pkfg, && ;kph dk dk;Z feF;k Nkioyh ifjf/k rFkk O;kfIr esa ugha vkrk && mRikn ds 'ksYQ thou ds lekIr gksus ds i'pkr~ && vfHk;qDr ds fy, [kk| vifeJ.k vf/kfu;e dh /kkjk 13¼2½ ds v/khu mipkj fdlh mi;ksx dk ugha && vk{ksfir vkns'k rFkk ifjokn lgtes| gksus ls vikLr && naM izfØ;k lafgrk dh /kkjk 245¼1½ ds vèkhu vkosnu eatwj && ;kfpdk eatwjA
vfHkfu/kkZfjr % ;g Li"V gS fd 'kCn ß'kq)Þ dk iz;ksx fcuk fdlh dYiuk ds mM+ku ds ßfeF;k NkioyhÞ dh dksfV esa vk ldrk gSA bl izdkj] esjs fu.kZ; esa ;kph vuki&'kuki vkijkf/kd dk;Zokgh Hkqxrus ds fy, ck/; ugha gksuk pkfg,A blds vfrfjDr] izca/k funs'kd LokLF; lsok dk i= fnukad 20-9-2001 bls Li"V djrk gS fd ;kph vU;Fkk Hkh 'kCn ß'kq)Þ dk 31-12-2001 rd iz;ksx djus ds fy, gdnkj FkkA LohÑr :i ls] uewuk dfFkr fnukad 16-5-2001 ds iwoZ fy;k x;k FkkA bl dkj.k ls Hkh ifjokn dk dksbZ vk/kkj ugha gSA
LohÑr :i ls izLrqr ekeys esa vfHk;kstu dk iwjk ekeyk cksry ij dfFkr 'kCn ß'kq)Þ ds mi;ksx ij vk/kkfjr gSA tSlk fd mi;qZDr fo'ys"k.k fd;k x;k] ;kph dk dfFkr dk;Z ßfeF;k NkioyhÞ dh ifjf/k rFkk O;kfIr esa ugha vkrk gSA bl izdkj vfHk;kstu jsr dh nhokj dh rjg gS rFkk U;kf;d tk¡p dk;e ugha j[kh tk ldrhA
iwoZorhZ fo'ys"k.k ds vuqlkj] visf{kr vkns'k rFkk ifjokn dk;Zokgh lgtes| gks pqdh gS] rn~uqlkj vk{ksfir vkns'k fnukad 11-8-2011 vikLr fd;k tkrk gSA ;kph dk naM izfØ;k lafgrk dh /kkjk 245¼1½ ds v/khu izLrqr fd;k x;k vkosnu ¼vuqyXu ih&9½ eatwj fd;k tkrk gSA ifj.kkeLo:i] ifjokn ekeyk Ø-494@2003 ¼iqu% la[;kafdr 534@2004½ vikLr fd;k tkrk gSA 129 ¼2006½ Mh,y Vh 522 rFkk 2012¼4½,e ih,p Vh 26 voyafcrA, vkb vkj 1992 ,l lh 604] ¼2014½8 ,l lh lh 340] nkafMd vkosnu 3439@2006 fu.khZr fnukad
21-6-2010] , vkb vkj 1967 ,l lh 970] ¼1999½8 ,l lh lh 190] 2008¼3½ Ldsy 563 rFkk 2011¼1½,Q, lh 41 fufnZ"VA
1. This petition filed under section 482 of the Code of Criminal Procedure (CrPC), challenges the order dated 11.8.2011 passed by JMFC, Ganj Basoda, whereby the application of the petitioner filed under section 245(1) CrPC (Annexure P-9) is rejected by the Court below.
2. Draped in brevity, the admitted facts are that on 16.5.2001, the complainant/Food Inspector visited the premises of retailer at Ganj Basoda and obtained the sample of Kinley Packaged Drinking Water. The sample was sent to public analyst. The said analyst opined that the sample is misbranded as per the Prevention of Food Adulteration Act, 1954 (for short, the “PFA Act”). Based on the said report, the instant complaint was filed. The Court below took cognizance of the matter and other party was summoned. In the said case, the analyst’s report dated 25.6.2005 is filed (Annexure P-4). In the report, it is mentioned that “sample is clear free from suspended matter”. However, in the opinion, it is mentioned that sample is “misbranded”.
3. Shri Surendra Singh, learned senior counsel contended that the public analyst’s report is vague. It does not specify as to how product was ‘misbranded’. Thus, the petitioner filed an application for discharging him under section 245(1) CrPC (Annexure P-9).
4. In reply to this application, it is stated by the complainant that “prosecution was lodged as on the label of Kinley Packaged Drinking Water the word ‘pure’ was mentioned, which is not permissible and hence, the application filed by the accused is liable to be dismissed”.
5. Learned senior counsel criticized the order dated 11.8.2011, whereby the aforesaid application of petitioner was rejected by the court below. It is urged that neither prosecution nor the Court below was aware as to how product can be treated as “misbranded”. He submits that the sample was taken on 16.5.2001 whereas complaint was filed on 22.9.2003. It is evident from the declaration mentioned in statutory Form VI under rule 12 (Annexure P-3) that the shelf life of the water bottle in question was only for six months. The bottle in question was packed on 12.4.2001. He submits that the Court below opined that if the petitioner was not satisfied with the report of public analyst, he could have invoked section 13(2) of the PFA Act and should have got his product examined in Central Food Laboratory. He submits that since shelf life of the product came to an end before filing of complaint, the petitioner could not have invoked section 13(2) of PFA Act. In nutshell, he challenged the impugned order and prosecution on following grounds :
(i) The use of word “pure” does not fall within the ambit of “misbranding”.
(ii) As per the letter of Directorate General of Health Service, dated 20.9.2001, the permission was accorded to use the word “pure” on the packed bottle till 31.12.2001. Thus, the petitioner used the same during the permissible limit.
(iii) Remedy under section 13(2) of the PFA Act was not available to the petitioner because of inordinate delay in filing the complaint.
(iv) The complaint proceedings cannot be permitted to continue unless it is made clear as to what is the exact nature of accusation against the petitioner. On the basis of vague and tangent allegation, which does not fall within the ambit of “misbranded”, the complaint proceeding can not be permitted to continue.
In support of contentions, learned senior counsel relied on certain High Court judgments.
6. Per Contra, Shri Amit Bansal, learned Deputy Government Advocate supported the order passed by the Court below. It is urged that the Court below earlier passed the order dated 11.8.2011 and opined that the petitioner has not made any effort to get the product tested from Central Food Laboratory and, therefore, he has waived his right. This order of Court below dated 11.8.2011 has attained finality. Thus, the petitioner cannot be permitted to raise the same point again. In addition, Shri Bansal relied on rule 41 of the Prevention of Food Adulter
