Delhi High Court

S. Nagrajan vs State on 6 March, 2012

Author: V.K.Shali

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+CRL. M.C. Nos. 833/2001, 837/2001, 2157/2004 and
2647/2001

                                   Date of Decision : 06.03.2012
CRL. M.C. No. 833/2001

S. NAGRAJAN                                    ...... Petitioner
                                Through: Mr. D.C. Mathur, Sr.
                                         Adv. with Mr. Mohit
                                         Mathur, Adv.

                                 Versus

STATE                                     ......       Respondent
                                Through: Ms. Jasbir Kaur, APP

Crl. M. C. 837/2001

S. NAGRAJAN                                    ...... Petitioner
                                Through: Mr. D.C. Mathur, Sr.
                                         Adv. with Mr. Mohit
                                         Mathur, Adv.

                                 Versus

STATE                                     ......       Respondent
                                Through: Ms. Jasbir Kaur, APP

Crl. M. C. No. 2157/2004

S. NAGRAJAN                                    ...... Petitioner
                                Through: Mr. D.C. Mathur, Sr.
                                         Adv. with Mr. Mohit
                                         Mathur, Adv.

                                 Versus


Crl.M.C.Nos.833, 837, 2647/2001 & 2157/2004          Page 1 of 17
 STATE                                     ......       Respondent
                                Through: Ms. Jasbir Kaur, APP

Crl. M. C. 2647/2001

S. NAGRAJAN                                    ...... Petitioner
                                Through: Mr. D.C. Mathur, Sr.
                                         Adv. with Mr. Mohit
                                         Mathur, Adv.

                                 Versus

STATE                                     ......       Respondent
                                Through: Ms. Jasbir Kaur, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. These are petitions against the order passed by the

learned Magistrate directing framing of notice under

Section 272/273 IPC, which was challenged before the

Sessions Court by way of a revision petition, which was

also dismissed, and hence, separate petitions under

Section 482 Cr.P.C. have been filed.

2. In the Crl. M.C. No. 833/2001, the facts are one Mazhar

Ansari along with his wife was treated at AIIMS for

alleged epidemic dropsy. The police had recorded the

statement of Mazhar Ansari, wherein he had stated that

he had purchased one packet of Dhara Mustard Oil from

Jamia Millia Super Bazar, Delhi. After consuming the

same, he developed medical complications which were

diagnosed as dropsy. On his statement, an FIR bearing

no. 804/1998, under Section 324/272/273 IPC was

registered by P.S. Sri Niwas Puri, New Delhi. The police

also seized the open packet of Dhara Oil. The oil was

sent to the Public Analyst of Directorate of Prevention of

Food Adulteration, Food Laboratory, Government of

India, who opined that the mustard oil is adulterated, on

account of presence of argemone oil, which is responsible

for causing dropsy. The present petitioner was a Junior

Executive (Quality) with M/s National Dairy Development

Board and he was also appointed as a nominee under

Section 17 of the Prevention of Food Adulteration Act.

Since, he was alleged to be responsible for checking the

quality control before packaging of mustard oil,

therefore, the case was registered against him and after

investigation, the charge sheet was filed against him for

an offence under Section 324/272/273 IPC. The learned

Magistrate after hearing arguments framed a notice on

13.07.2000 against the petitioner under Section 272/

273 IPC while as no notice under Section 324 IPC was

given. The petitioner had assailed the framing of notice

under Section 272/273 IPC on the ground that there was

absence of mens rea on his part which was prima facie to

be established before a notice is given for an offence

under the Indian Penal Code, therefore, it had been

contended that he deserves to be discharged. The

revision petition of the petitioner for discharge was

rejected by Ms. Ina Malhotra, the learned Additional

Sessions Judge on 01.02.2001, and hence, the present

petition bearing no. 833/2001 was filed.

3. In Crl.M.C. No. 837/2001, an FIR was registered in

similar circumstances. On the basis of a complaint of

Ishrat Ahsan, an FIR No. 798/1998, under Section

324/272/273 IPC by P.S. Sri Niwaspuri, New Delhi was

registered. The learned Magistrate had directed framing

of notice on 14.07.2000. In this case, FIR was registered

only under Section 272/273 IPC and a revision petition

was preferred by the nominee S. Nagrajan, raising the

same plea of absence of mens rea apart from other pleas

which was dismissed by the same Sessions Judge on

01.02.2001.

4. In the Crl. M. C. No. 2157/2004, on 13.08.1998, an FIR

bearing No. 528/1998, under Section 272/273 IPC, by

P.S. Bhajanpuri, Delhi was registered on the complaint of

one Beeru who had fallen sick after eating vegetables

prepared in the mustard oil. The learned ASJ discharged

the petitioner on 02.2.2001 of commission of offence

under Section 328 IPC and remanded the matter back to

the learned Magistrate for offences under Section

272/273 IPC. The learned Magistrate, vide order dated

21.03.2001 directed the framing of charge against the

petitioner under Section 272/273 IPC. The petitioner

moved an application on 01.12.2001, seeking dropping of

proceedings on the ground that there was no material to

attract the ingredients of Section 272/273 IPC which was

dismissed by the learned Magistrate on 07.04.2004, and

hence, the present petition under Section 482 Cr.P.C was

filed for quashing of the proceedings.

5. In the Crl. M. C. 2647/2001, the facts were that on

29.08.1998, the complainant Fakir Chand Mandi along

with one of his friends was admitted to AIIMS for swelling

in the legs and on his statement, an FIR No. 450/1998,

under Section 324/272/273 IPC was registered by P.S.

Hazrat Nizamuddin, New Delhi. After completion of the

investigation, a charge sheet was filed on the basis of

allegations that the complainant had consumed Dhara

Mustard Oil, manufactured by M/s NDDB and suffered

illness. On 02.08.2000, the learned Magistrate was

pleased to frame a notice under Section 272 IPC which is

a non-cognizable offence and discharged the petitioner

for an offence under Section 324/273 IPC. The petitioner

feeling aggrieved by the said order preferred a criminal

revision petition bearing no. 33/2001, under Section 397

read with section 399 Cr.P.C. before the Sessions Court,

which was dismissed vide order dated 26.03.2001.

6. Thus in all these four cases, although the facts are

different but what is essentially in issue is the notice

given to the petitioner under Section 272 and 273 IPC for

having committed an offence under the penal Code. For

this purpose, the petitioner has been enroped only on

account of being a nominee of the NDDB under Section

17 of the Prevention of Food Adulteration Act.

7. I have heard Mr. Dinesh Mathur, the learned senior

counsel for the petitioner as well as Ms. Jasbir Kaur, the

learned APP for the State and have also gone through the

record. The learned senior counsel has assailed both the

orders of the Magistrate directing the framing of charges

under Section 272/273 IPC as well as the rejection of the

revision petition by the learned Sessions Court on the

ground that the offence under section 272 IPC deals with

the situation where a person adulterates any article of

food or drink, so as to make such article noxious as food

or drink, intending to sell such article as food or drink, or

knowing it to be likely that the same will be sold as a

food or drink, shall be punished with imprisonment of

either description for a term which may extend to six

months, or with fine which may extend to one thousand

rupees, or with both.

8. Similarly, it was contended that Section 273 IPC also

contemplates a situation where a person sells, or offers

or exposes for sale, as food or drink, any article which

has been rendered or has become noxious, or is in a

state unfit for food or drink, knowing or having reason to

believe that the same is noxious as food or drink shall be

punished with imprisonment of either description or a

term which may extend to six months, or with fine which

may extend to one thousand rupees, or with both.

9. It was contended that by reading of both these Sections

the main ground for putting a person for trial for an

offence under Section 272/273 IPC is to show to the

Court, prima facie, that it is the petitioner who has

adulterated the article of food or drink while as in the

instant case, there is no evidence to show on record that

it was the petitioner Mr. S. Nagrajan who had adulterated

the mustard oil on account of presence of argemone oil.

It has been contended by the learned senior counsel for

the petitioner that he has been enroped for the offences

under Section 272/273 IPC only in the capacity of a

nominee having been declared under Section 17 of the

Prevention of Food Adulteration Act while as the

prosecution cannot rely upon Section 17 of the

Prevention of Food Adulteration Act to enrope the

nominee. It has also been contended that though the

offence of adulteration under Prevention of Food

Adulteration Act can enrope a person to trial, who has

nothing to do with the offence but has been named as a

nominee, by way of vicarious liability but under the

Indian Penal Code, a person cannot be charged of an

offence of adulteration under Section 272 or 273 IPC

unless and until a positive act or omission is shown on

his part coupled with his intention to adulterate which

would constitute mens rea and therefore, not only the

order passed by the learned Magistrate or the learned

Sessions Judge, directing framing of notice against the

petitioner, is unsustainable in the eyes of law, but the

complaint itself is not maintainable.

10. The third submission which was made by the learned

senior counsel was to the effect that an offence under

Section 272/273 IPC is a non-cognizable offence, which

cannot be investigated by the local police without

complying with the Section 155 (2) Cr.P.C. by virtue of

which the prior permission of the learned Magistrate is to

be obtained before investigation. It was contended that

this embargo on the power of police to investigate the

non-cognizable offence could not be circumvented by

adding a section like 324/328 IPC which was a cognizable

offence, and thereby, initiating the investigation into the

matter against the present petitioner.

11. The learned senior counsel for the petitioned relied upon

the case titled Basir-Ul-Huq Vs. State of West Bengal

AIR 1953 SC 293 of the Apex Court to contend that such

a camouflage and use of power to investigate the matter,

it could not have been done and thus the entire

proceedings are ab initio void.

12. The learned APP could not refute any of the submissions

made by the learned senior counsel for the petitioner to

the satisfaction of the Court or give any plausible answer

as to why the Magistrate had ordered directing the

framing of notice and the revision petition dismissing the

appeal against the order of Magistrate. The learned APP

has not been able to show as to how the complaint

against the petitioner under Section 272/273 IPC is

sustainable when there is no prima facie evidence against

the petitioner having done any act or commission, which

resulted in adulteration of oil.

13. I have carefully considered the submissions made by the

learned senior counsel for the petitioner and have gone

through the record.

14. I find merit in the submissions made by the learned

senior counsel for the petitioner. No doubt, Section

272/273 IPC makes it an offence where a person who is

responsible for adulteration of any article of food or

drink, therefore, whoever has actually adulterated the

article of food or the edible oil will have to be put to trial.

But a person cannot be put to trial for an offence under

Section 272/273 IPC by invoking Section 17 of the

Prevention of Food Adulteration Act dealing with a

nominee. Under the Prevention of Food Adulteration Act,

the offence of adulteration is a strict liability offence and

the offence does not require proof of mens rea while as

under Section 272/273 IPC of a person must have mens

rea for being charged. Under the Prevention of

Corruption Act, the manufacturing company can declare

a person as a nominee by completing certain pre-

requisite formalities. Once these formalities are

completed, this nominee would be responsible, in case,

any adulteration in the article of food or the drink is

found to be in existence but then the prosecution has to

be under the Prevention of Food Adulteration Act.

Similarly, in the event of a Director or the Managing

Director being made liable, it has to be established that

the Director is in-charge and responsible for the day to

day conduct of the business of the company before he

can be charged. There is no dispute about the fact that

the authority which is competent to lodge the prosecution

for an offence of food adulteration punishable under

Section 17 of the Prevention of Food Adulteration Act can

also resort to Section 272/273 IPC and seek the

prosecution of the accused by joining trial for both these

offences, but in the absence of such a joining trial for

both these offences, it is not open to the prosecution

while initiating a prosecution against the accused for an

offence under Section 272/273 IPC to resort to provisions

of Prevention of Food Adulteration Act which has been

precisely done in the instant case. Therefore, this is

totally against the provisions of law prescribed under the

Indian Penal Code.

15. I, accordingly, feel that a complaint which is filed

essentially only under Section 272/273 IPC against the

nominee, is in itself not sustainable in the eyes of law.

If the complaint itself is not sustainable against the

nominee, as he is not the person who has adulterated

the article of food or the drink which happens to be

mustard oil in the instant case, obviously, no notice

under Section 272/273 IPC could be framed against him

much less the same could have been sustained by the

Sessions Court.

16. There is another aspect of the matter which has been

shown to be in existence in the instant case that it is the

violation of Section 155(2) Cr.P.C. which puts an

embargo on the powers of the prosecuting agency to

investigate a non-cognizable offence. It is not in dispute

that both the offences under Section 272/273 IPC are

non-cognizable offences, and therefore, the said offences

could not be investigated by the police on account of the

registration of the FIR. But the investigation for the

aforesaid offences under Section 272/273 IPC was

sought to be camouflaged by adding Section 324 IPC in

three of the cases and one for an offence under Section

328 IPC by the prosecution knowing well that such an

offence against the petitioner is for a cognizable offence

against the petitioner which in all the four cases were not

made out. The Apex Court in case titled Basir-Ul-Huq

Vs. State of West Bengal AIR 1953 SC 293 has

deprecated such a practice being adopted for the purpose

of investigation of a non-cognizable offence. The words

which are used are as under:-

"It has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required.

In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code."

17. In view of the aforesaid facts and the circumstances of

the case, I am of the considered opinion that the order of

framing of notice under Section 272/273 IPC, in all the

Crl. M.C. Nos.833/2001, 837/2001, 2157/2004 and

2647/2001, the order passed by the learned Sessions

Judge rejecting the revision petition against the said

order are unsustainable in the eyes of law, and

accordingly, are set aside and further all the four FIRs

bearing nos. 804/1998, under Section 324/272/273 IPC,

registered by P.S. Sri Niwas Puri, New Delhi in Crl. M. C.

No. 833/2001, FIR No. 798/1998, under Section

324/272/273 IPC, registered by P.S. Sri Niwaspuri, New