Gauri Shanker Goel vs State
2008 Latest Caselaw 1749 Del

                  Reportable
*     HIGH COURT OF DELHI AT NEW DELHI

+      Crl. Rev. (P). 85/2005 & Crl. M.A. No. 1388/05

                                Date of decision: 26.09.2008

#     GAURI SHANKER GOEL                ..... Petitioner
!             Through : Mr. R. N. Mittal, Sr. Adv.
                        Mr. Sanjay Kumar, Adv.


                              Versus


$     STATE                                     ..... Respondent
^                    Through : Mr. O. P. Saxena, APP
                               SI Harvir Singh

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?             Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                    Yes

                           JUDGMENT

ARUNA SURESH, J. (Oral)

1. By way of this revision petition, petitioner seeks

quashing of charges framed against him by the trial

court vide order dated 1.10.2004 whereby the

petitioner and others have been charged for

offences under Section 273 and 328 of the Indian

Penal Code (hereinafter referred to as IPC) in

Sessions Case No. 95/2003, FIR No. 60/1999 under

Sections 273/328 IPC and Sections 7/16 of

Prevention of Food Adulteration Act (hereinafter

referred to as PFA Act) registered at Police Station

Khazoori Khas.

2. On receipt of complaint from one Krishan Pal on

12.2.1999 regarding sale of adulterated mustard

oil, FIR No. 60/1999 was registered on the same

day at Police Station Khazoori Khas. A raid was

conducted in the premises of accused Ram Lalit

and an open half filled tin of mustard oil was seized

from his shop out of which 50 gm oil was taken as

sample. On Ram Lalit's disclosure that he had

purchased mustard oil from co-accused Kailash

Chand Gupta, the raiding party went to his

premises and recovered two tins of mustard oil.

Kailash Chand Gupta had allegedly purchased

these two tins from petitioner Gauri Shanker Goel,

the manufacturer of the mustard oil. After

investigation all the three accused were charged

for offences under Sections 272/273/328 IPC as

well as under Sections 7/18 of PFA Act.

3. Vide order dated 1.10.2004, the learned trial court

was pleased to frame charges under Sections

273/328 IPC against all the accused persons.

Accused Kailash Chand went in revision against the

said order. This Court vide order dated 25.1.2005

was pleased to allow the revision petition and

Kailash Chand was accordingly discharged. After

this order, the present revision petition has been

filed by co-accused Gauri Shanker Goel.

4. Few observations of this Court in the said order

dated 25.1.2005 are relevant for the purposes of

proper and final adjudication of the revision

petition before me. Paras 2 and 3 of the said

judgment read as follows:

"2. The seizure memo in respect of the recovery of mustard oil from Ram Lalit dated 12.02.1999 shows that the tin from which the sample of mustard oil was taken has not been described at all. All that it says was that the tin was open and it contained half a tin of mustard oil. There is no mention if the tin had any marking of the

manufacturer or of the seller. As against this the tin recovered from the premises of the petitioner bears a label of "Nandi Brand Mustard Oil Kachhi Ghani 15 kg. filtered crushed by kolooh. Manufactured by Haryana Oil Industries, Bhiwani Road, Rohtak" and further a sticker carrying the words "Representative sample tested in competent laboratory and certified unadulterated" were fixed. Further on the cap of the in the words "Nandi Brand double filtered 100% pure mustard oil Haryana Oil Industries Rohtak 124501" were printed. No bill of any kind showing sale of mustard oil by the petitioner to co-accused Ram Lalit has been recovered by the investigation.

3. It appears therefore that the only link between the petitioner, Kailash Chand Gupta and the offence of sale of adulterated mustard oil which was poisonous, is the statement of co- accused Ram Lalit. The investigation has been procured any evidence to show that the contents of the tin recovered from Ram Lalit could not have been supplied to him by anyone other than the petitioner. The label, sticker and the print on the tin recovered from the petitioner showed that the manufacturer of the oil was Haryana Oil Industries. Therefore, the oil recovered from Ram Lalit could have been supplied to him by any manufacturer of oil and even if it was the same oil which was produced by Haryana Oil Industries the same could have been supplied to him directly by Haryana Oil Industries or by any other middle man. Thus, the very foundation of the charge against the petitioner namely the link of the

sale of adulterated/poisonous mustard oil and the petitioner is missing. Thus the petitioner cannot be charged for the offence under Section 328 IPC."

5. Kailash Chand Gupta had allegedly purchased the

said two tins recovered from his premises from the

petitioner. The said two tins bore the label of

"Nandi Brand Mustard Oil Kachhi Ghani 15 kg.

filtered crushed by kolooh, manufactured by

Haryana Oil Industries, Bhiwani Road, Rohtak".

The said two tins also carried sticker carrying the

words "Representative sample tested in competent

laboratory and certified unadulterated". Besides,

the cap of the tin also carried the words "Nandi

Brand double filtered 100% pure mustard oil

Haryana Oil Industries Rohtak 124501".

6. The investigating officer could not collect any bill

indicating that Kailash Chand Gupta sold the said

oil to co-accused Ram Lalit. Thus, prima facie it is

clear that petitioner was supplying the mustard oil

containing all the requisite information on the tins

to co-accused Kailash Chand Gupta. However, if

the mustard oil which was manufactured by the

petitioner and supplied to Kailash Chand was

actually sold to Ram Lalit is not known. There is no

evidence to indicate that adulterated mustard oil

recovered from Ram Lalit's premises was the same

which was recovered from the premises of Kailash

Chand Gupta. It is not the case of prosecution that

Gauri Shanker had been supplying mustard oil

manufactured by him directly to Ram Lalit. It is

pertinent to mention here that the tin which was

allegedly recovered from the premises of Ram Lalit

did not bear any trademark or any other sticker or

label to indicate the name of the manufacturer who

was responsible for manufacturing the alleged

adulterated oil and therefore, necessary evidence is

missing in this case to connect the petitioner with

the supply of adulterated mustard oil to Ram Lalit.

There is one document placed on record purported

to have been written by the petitioner admitting

that he used to purchase oil from outside and pack

them under his own brand of Nandi and used to

supply them to various distributors etc. and he

himself was not manufacturing any oil. This

document also prima facie does not indicate that

the oil which was recovered from Ram Lalit's shop

was the oil which might have been supplied by the

petitioner through Kailash Chand Gupta.

Admittedly the prosecution did not lift any mustard

oil tins from the business place of the petitioner

nor took out any sample and sent them for testing.

7. Also as per the ingredients of Section 273 and 328

IPC it is essential that the accused should have

knowledge or intention of poisoning the

complainant which is not so the case. The tins

containing the oil manufactured by the petitioner

bear the labels showing that the oil is filtered and

edible and is unadulterated, which do not in any

way point out that the petitioner was having the

intention or knowledge of contamination of the

mustard oil produced or marketed by his factory in

order to poison the people consuming it.

8. Considering the fact that Kailash Chand, who was

the distributor of the alleged contaminated oil has

been discharged by this court since there was no

sufficient material available to make out an offence

against him and also since the ingredients of

Section 273 and 328 have not been fulfilled, and

there is no circumstance or fact brought out in the

investigation to bring up a chain of events making

the petitioner involved in the commission of the

offence of which he is charged by the trial court.

9. To invoke the provisions of Section 273 IPC, prima

facie it has to be shown that the offender knew or

had reason to believe that the commodity was

noxious. In the present case there is no such

evidence or even a presumption. The labels and

stickers on the tins which were recovered showed

that whoever would purchase the oil would have

reason to believe that it was of hundred percent

purity and also that purity had been tested by

competent authority. Admittedly, the tins

recovered from the premises of Kailash Chand

were sealed. Therefore, necessary ingredients of

Section 273 IPC of knowledge and reason to

believe that the mustard oil was noxious are

missing in the present case. The evidence

collected by the prosecution during the

investigation of the case as against the petitioner is

very weak in nature which is not likely to result

into his conviction for the offences he has been

charged with.

10. In view of the discussion as above, petitioner

cannot be charged for any of the offences either

under Section 273 IPC or under Section 328 IPC.

The revision petition is accordingly allowed.

Petitioner is discharged of the offences charged

with. The interim order of stay dated 24.5.2005

stands vacated and the trial court shall hold trial

against accused Ram Lalit in accordance with law.

11. Trial court record along with attested copy of this

order be sent back immediately.

ARUNA SURESH (JUDGE) September 26, 2008 jk