Dhannumal Bansal And Others vs State Of U.P. And Another
2023 Latest Caselaw 19111 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:148838
 
Reserved on 25.5.2023
 
 Delivered on 26.7.2023
 
Court No. - 93
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 4654 of 2006
 
Petitioner :- Dhannumal Bansal And Others
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Sushil Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Sri Sushil Shukla, learned counsel for the petitioners, learned A.G.A. for the State and perused the record.

2. This petition has been filed with a prayer that order dated 08.03.2006 passed by learned Additional District and Sessions Judge, Fast Track Court No.1, Rampur in Criminal Revision No.137 of 2005 and the order dated 04.05.2005 passed by learned Magistrate be quashed.

3. The facts relevant for the purpose of this petition are as below:-

The present petitioners were challaned by the Food Inspector and Complaint Case No.385 of 2005 (State vs. Anil Kumar and Others) under sections- 7/16 Prevention of Food Adulteration Act, 1954 was instituted. The trial court took cognizance and issued summons against the petitioners and one more. The summoning order was challenged by the accused persons/instant petitioners before the revisional court on the ground that no offence under section- 16(1)(c) Prevention of Food Adulteration Act, 1954 was made out against them, hence the order is liable to be set-aside. The lower revisional court considered the matter and took a view that prima-facie offence is made out against them and that there is no incorrectness in the impugned order and dismissed the revision. Now, the petitioners are before this Court assailing both the orders.

4. The story as set-up in the complaint by the Area Food Inspector was that the Food Inspector visited grocery shop of Anil Kumar Gupta and asked him for a sample of 750 ml. of mustard oil. He prepared a notice Form No.VI, Rule- 12 under the relevant rules. Anil Kumar Gupta refused to give sample of the oil, therefore the complainant attempted to take sample by himself but he was prevented in doing so by the vendor. It is further alleged in the complaint (true copy whereof paper no.12 is available on record) that the present petitioners and one Anil Kumar Gupta forcibly prevented the Food Inspector from taking the sample and pushed him forcing him to exit from the shop. Therefore, he could not take the sample; he prepared a report of the incident sitting outside on a bench and filed a complaint under sections-16(1)(c) read with section- 10(1)(a)(1) Prevention of Food Adulteration Act, 1954.

5. Before I proceed to refer to relevant provisions of law, the arguments advanced by the petitioners may be noted.

6. It is contended on behalf of the petitioners that even if the prosecution story be taken as true, the conduct of the petitioners shall fall under offence as defined under section- 332 I.P.C. As far as provisions of section- 16 read with 10(1) of the Prevention of Food Adulteration Act, 1954 are concerned, they will not apply to any person except the vendor or any other person acting on his behalf. It is argued that section- 16(a) of the Act makes it very clear that the provisions are meant to apply to any person, who is selling/storing for sale etc. or any person doing so on his behalf. Any person who is neither a vendor, nor a person acting on his behalf shall not be covered under the relevant provisions; meaning thereby that in case any unconcerned person misbehaves with the Food Inspector, the provisions of relevant section under I.P.C. shall be attracted; and in such circumstances, the Food Inspector was expected to file an F.I.R. and not the complaint under the Food Adulteration Act.

7. Section 10(1)(a)(i) Prevention of Food Adulteration Act, 1954 empowers the Food Inspector to take samples of any article of food from any person selling the same. Section- 10(2) Prevention of Food Adulteration Act, 1954 empowers the Food Inspector to enter and inspect any place where any article of food is manufactured or stored or exposed or exhibited for sale etc. Section 16 of the Prevention of Food Adulteration Act, 1954 provides for penalties.

8. Section- 16 of the Prevention of Food Adulteration Act, 1954 is as below:-

16. Penalties - (1) Subject to the provisions of sub-section (1A) if any person-

(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any article of food-

(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;

(ii) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or

(b) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any adulterant which is not injurious to health; or

(c) prevents a food inspector from taking a sample as authorised by this Act; or

(d) prevents a food inspector from exercising any other power conferred on him by or under this Act; or

(e) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any adulterant which is not injurious to health; or

(f) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extract thereof for the purpose of advertising any article of food; or

(g) whether by himself or by any other person on his behalf, gives to the vendor a false warranty in writing in respect of any article of food sold by him,

he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees:

Provided that-- - - - - - - - - - -

9. A bare perusal of section-16 of the Act goes to show that section- 16(1)(a) and section- 16(1)(c) operate in two different realms. Clause- (a) of sub-section (1) operates when any person by himself or any other person on his behalf is indulged in manufacturing for sale, storing, selling etc. of any article of food i.e. the seller or manufacturer or distributor or the person involved in storage thereof or their agents shall be covered under this clause. They may be the employees or non-employee working for them. On the other hand, no such qualifications have been attached to the persons, who are covered under clause (c) sub-section (1) of section 16. Even a quick look on the above provisions makes it quite obvious that any person, who prevents the Food Inspector from taking a sample shall be covered under the above clause. "Any person" may include the vendor/seller/distributor/manufacturer for sale etc. and shall, in my view, include any other person, who prevents a Food Inspector from taking the sample. Such person can even be an outsider. In my view, section- 16(1) is to be read in conjunction with the provisions of clause- (c) and while doing so clause- (a) has no interference. It appears that section- 16(1)(c) of the Act is meant to apply where otherwise section- 332 I.P.C. would have applied. Where a Food Inspector is acting in discharge of his duties and any person obstructing him in doing so, section- 16(1)(c) of the Act shall apply. A special provision has been inserted in the Act itself, hence general law has no application. On the basis of above provisions of law, I am of the view that where an outsider, who may or may not be acting on behalf of the vendor prevents the Food Inspector from taking sample, he shall be covered under the provisions of section- 16(1)(c). Hence, the argument of the petitioners is not tenable in the eyes of law.

10. This objection has been raised by the opposite side that this is a writ petition under Article 226 of the Constitution of India and no interference can be made in judicial order passed by the judicial courts.

11. The Supreme Court in Pepsi Foods Ltd. and Another vs. Special Judge Magistrate and Others, (1998) 5 SCC 749, has held as below:-

"Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court find that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one under Article 227 or Section 482 of the Cod. it ay not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."

12. In my opinion, where no other deterrent except non mentioning or wrong mentioning of law poses a hurdle in the winding path to justice, the judge ought to play its expected role. The Judge or the Court shall be failing in its duty towards an ordinary man/litigant by not looking for solutions and dismissing the writ on such ground. In this view of the matter, I find it fit to treat this petition as one moved under Article 227 of the Constitution of India.

13. In the light of discussion in para no.9 of this judgment, I am of the view that no ground for interference in orders dated 08.03.2006 and 04.05.2005 is made out.

14. Section- 16(a) of the Act provides that all offences under section- 16(1) Prevention of Food Adulteration Act, 1954 shall be tried in a summary way by Judicial Magistrate Ist class and the provisions of sections- 262 and 265 of Cr.P.C. shall as far as may be apply to such trial. This may be noted that this is probably one of the oldest cases pending since 2006, hence in the interest of justice, it is being provided that in case there is no legal impediment and the accused is so inclined and moves a suitable application, the proceedings under section- 265(a) Cr.P.C. may be undertaken by the concerned Magistrate.

15. It is made clear that the impugned order is not interfered at. However, the learned trial court below is directed to decide the matter expeditiously preferably within a period of three months from the date of production of certified copy of this order and subject to observations as provided in para-14 of this judgment.

16. Accordingly, this petition is disposed of.

Order Date :- 26.7.2023

Saif