Criminal Application No.2871 of 2004

7th January, 2008

Petitioner Counsel: Mr. S. V. SIRPURKAR
Respondent Counsel: Mr. K. S. DHOTE

Cases Cited:
Shashikant Udhavrao Pampattiwar Vs. State of Maharashtra, C.A. No.66/1997, Dt.21.3.2001 [Para 4]

JUDGMENT

JUDGMENT :- By this petition under Section 482 of Code of Criminal Procedure read with Articles 226 and 227 of the Constitution of India, the petitioners seek quashing of Criminal Case No.86/1998 against them pending before Judicial Magistrate, First Class, Warora for violation of the provisions of the Prevention of Food Adulteration Act, 1954.

2. Petitioner no.2 is the proprietor of M/s. Rajesh Kirana Stores situated at Station Road, Warora, district Chandrapur. On 18.7.1995 at about 11 a.m. Shri. S. B. Naragude, the then Food Inspector along with a panch visited M/s. Rajesh Kirana Stores. Petitioner no.1 was present in the shop. Shri. Naragude noticed 100 sealed polly packets of Kusum Chilly Powder weighing 50 grams each kept for sale. Shri. Naragude purchased 9 sealed polly packets of Kusum Chilly Powder of 50 grams each for test and analysis from the said stock, paid Rs.22.50 ps. to petitioner no.1 and obtained cash memo from him. Shri. Naragude gave notice under Section 14-A of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act" for short) to petitioner no.1 who disclosed that packets of chilly powder were purchased from M/s. Kusum Products, Nagpur (of which respondent no.2 is the Proprietor) under Bill No.C-460 dated 21.6.1995. After following due procedure, the sample of chilly powder was sent to Public Analyst, Region Public Health Laboratory, Nagpur on 19.7.1995. On 22.2.1996 report was received to the effect that sample does not conform to the standard given in Prevention of Food Adulteration Rules, 1955. After collecting necessary information, the Joint Commissioner, Nagpur Division, Food and Drugs Administration, Chandrapur, was moved for obtaining his consent to launch prosecution against the petitioners and respondent no.2. After receipt of the consent, complaint was filed against them. The petitioners have challenged the maintainability of the said prosecution.

3. I have heard Shri. S. V. Sirpurkar, Advocate for the petitioners and Shri. K. S. Dhote, APP for respondent no.1-State. Nobody appeared for respondent no.2.

4. Shri. Sirpurkar challenged the prosecution only on two grounds, first that the prosecution is barred by limitation and secondly the petitioners being retailers were protected under Section 19 (2) of the Act. In support of the second ground Shri. Sirpurkar relied on unreported decision of a Single Bench of this Court in Shashikant Udhavrao Pampattiwar and others. Vs. State of Maharashtra and others, Criminal Application No.66/1997 decided on 21.3.2001.

5. As regards the first ground Shri. Sirpurkar submitted that Shri. Naragude purchased chilly packets from the shop of the petitioners on 18.7.1995. Hence the period of limitation starts from that day. The offence alleged is punishable with imprisonment for 3 years. Hence under clause (c) of sub-section (2) of Section 468 of the Code of Criminal Procedure the period of limitation is 3 years. As such the complaint should have been filed within 3 years from 18.7.1995. However, the complaint in the present case has been filed on 6.8.1998 which is obviously beyond the period of 3 years from 18.7.1995. The prosecution is, therefore, barred by limitation and is liable to be quashed.

6. The learned APP on the other hand pointed out that after receiving the report of Public Analyst about the adulteration, Shri. Naragude moved the Authorized Officer for written consent as required under Section 20(1) of the Act on 3.1.1996. The Authorized Officer granted consent on 19.3.1998 which was received by the Food Inspector on 1.4.1998. Thereafter the complaint came to be filed on 6.8.1998. The learned APP pointed out that the period required for obtaining consent in writing of the Authorized Officer will have to be excluded from calculating period of limitation.

7. In this respect sub-section (3) of Section 470 of the Code of Criminal Procedure is material which provides that where under any law for the time being in force, the previous consent of any authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the time required for obtaining such consent shall be excluded. Thus in the present case the period from 3.1.1996 till 1.4.1998 will have to be excluded in computing the period of limitation. If that is done, then the complaint has been filed perfectly within limitation and is not barred by limitation. In view of this position the first contention raised by Shri. Sirpurkar is devoid of any force and will have to be rejected.

8. Shri. Sirpurkar further submitted that it is the case of the Food Inspector himself that the petitioners are retailers. It is also the case of the Food Inspector that he found 100 sealed polly packets of Kusum cilly powder of 50 grams each were kept in the shop of the petitioners and that he purchased 9 sealed chilly packets from the said stock. It is nowhere the case of the Food Inspector that the seal of any of the packets was tampered with. It is also the case of the Food Inspector that in reply to notice under Section 14-A of the Act, petitioner no.1 informed that the sealed packets were purchased from respondent no.2 under Bill no.C-460 dated 21.6.1995. Shri. Sirpurkar invited my attention to sub-clause (ii) of Clause (a) of sub-section (2) of Section 19 of the Act which is to the effect that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article of food from any manufacturer, distributor or dealer, with a written warranty in the prescribed form. Section 14 of the Act mandates that no manufacturer or distributor of, or dealer in, any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor, provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under Section 14.

9. In the present case, Bill No.460 dated 21.6.1995 was issued by Kusum Products, Madhav Nagar, Nagpur in favour of Rajesh Kirana Stores, Warora and the said bill contains a warranty about the nature and quality of the product on the back of it. Thus the petitioners who are retailers cannot be held responsible for the alleged adulteration. It is for the manufacturer viz. respondent no.2 to explain the alleged adulteration.

10. It was vehemently urged by the learned APP that under the provisions of Section 19 (2) of the Act, the burden of proving the defence that they are the retailers and they purchased food article from a manufacturer under warranty lies on the accused namely the petitioners. Unless and until the said burden is discharged by them, they cannot be absolved of the criminal liability. Since the petitioners have not yet adduced defence evidence, it cannot be said that they have discharged the burden lying upon them and as such the prosecution against the petitioners cannot be quashed.

11. The principle set out by the learned APP is quite correct. However, in the present case it is the version of the complainant (Food Inspector) himself that the petitioners are retailers and they disclosed him that they had purchased the packets of chilly powder from respondent no.2 (the manufacturer). Not only this the petitioners also produced Bill No.C-460 dated 21.6.1995 containing warranty about the quality of the chilly powder on the back of the bill. It may further be noted that the manufacturer has also been impleaded as accused no.3. In view of these circumstances there is no force in the submission made by the learned APP that the petitioners have not discharged the burden of proof lying on them. Had the manufacturer not been joined as co-accused, then perhaps it was necessary for the petitioners to lead evidence in support of their defence. But as pointed out above in the present case it is not necessary and the prosecution against the petitioners cannot be proceeded with.

12. Thus the material on record does not disclose any offence against the petitioners and it would be an abuse of the process of law to continue the prosecution against the petitioners. I, therefore, pass the following order :-

The petition is allowed. Criminal Case No.86/1998 pending before the Judicial Magistrate, First Class, Warora is quashed so far as the petitioners (accused nos.1 and 2) are concerned. It is needless to say that the prosecution would proceed against respondent no.2 (accused no.3).

13. R. & P. be sent back to Judicial Magistrate, First Class, Warora for proceeding according to law.

Petition allowed.