Delhi High Court

C.H. Satyanarayan vs State on 15 March, 2012

Author: V.K.Shali

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL. REV. PET. No. 114/2005

                                            Date of Decision : 15.03.2012

C.H. SATYANARAYAN                               ...... 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. This is a petition under Sections 397/401 Cr.P.C. read with Section

482 Cr.P.C. assailing the order dated 3.12.04 passed by the learned

Metropolitan Magistrate directing the framing of charge against the

petitioner under Sections 272/273 IPC.

2. Briefly stated, the facts of the case are that an FIR bearing

No.227/98 under Section 328 IPC was registered by Police

Station Hauz Qazi on the basis of the statement of one

Ms. Rekha wherein she had stated that she had bought one

pouch and one bottle of dhara kachi ghani mustard oil from a

shop and after consuming the same she fell ill and developed

swelling in her legs. The remnants of oil were seized and sent to

the public analyst for analysis where the remnants of the pouch

conformed to the standards laid down under PFA rules, however,

the remnants of the bottle tested positive for argemone oil which is

injurious to health. After investigation the charge sheet was filed

against the present petitioner in his capacity of being the Quality

Control Officer of the National Dairy Development Board. The

offence under Section 328 IPC being exclusively triable by the Court

of Sessions, the matter was committed to the Court of Sessions.

The Sessions Court vide order dated 19.4.2002 held that charge

sheet did not disclose any offence exclusively triable by Court of

Sessions and remanded it to Chief Metropolitan Magistrate. The

learned CMM assigned the case to the Court of Metropolitan

Magistrate. After hearing arguments, the learned MM vide order

dated 3.2.2004, framed charge under Sections 272/273 IPC against

the petitioner.

3. 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.

4. Mr. Mathur the learned senior counsel for the petitioner has

raised three contentions. The first contention which has been

raised by the learned senior counsel is 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.

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

contemplates that whoever 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 for a term which may extend to six months, or with

fine which may extend to one thousand rupees, or with both.

6. It was contended that by reading of both these Sections it is

amply clear that the main ground for putting a person on trial

for offences 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 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 Sections 272/273 IPC only in the capacity of

Quality Control Officer. It has also been contended that though

for an offence of adulteration under Prevention of Food

Adulteration Act a person, who has nothing to do with the

offence but has been named as a nominee can be enroped to

trial, 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, the

order passed by the learned Magistrate directing the framing

of charge against the petitioner, is unsustainable in the eyes of

law.

7. The second contention which was made by the learned senior

counsel was to the effect that an offence under Sections

272/273 IPC is a non-cognizable offence, which cannot be

investigated by the local police without complying with Section

155 (2) Cr.P.C. by virtue of which the prior permission of the

Magistrate has to be obtained before initiating the

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 328 IPC which is

a cognizable offence, and thereby, initiating the investigation

into the matter against the present petitioner.

8. The learned senior counsel for the petitioner has relied upon a

judgment of the Apex Court in case titled Basir-Ul-Huq Vs.

State of West Bengal AIR 1953 SC 293 to contend that such

a camouflage and use of power to investigate the matter,

could not have been done and thus the entire proceedings are

ab initio void.

9. The third contention raised by the learned senior counsel for the

petitioner is that the Sessions Court had discharged the petitioner

under Section 328 IPC and the charges were framed by the learned

MM only under Sections 272/273 IPC and since these Sections entail

imprisonment for a maximum period of six months, the Magistrate

ought to have taken cognizance within a period of one year of the

incident as provided in Section 468 Cr.P.C. He further submitted

that in the instant case FIR is dated 4.9.1998 while as the charge

sheet was filed and the cognizance was taken on 28.10.1999, that

is, after the expiry of the limitation period and therefore, the

prosecution itself was barred by limitation. In order to support his

contention, the learned senior counsel has placed reliance on two

judgments of this Court:

1. Vipin Kalra & Anr vs State, 95(2002) DLT 863

2. Hema Bhalla vs State, 102 (2003) DLT 906

10. The learned APP could not refute any of the submissions made

by the learned senior counsel for the petitioner or give any

plausible answer. 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.

11. I have carefully considered the submissions made by the

learned senior counsel for the petitioner and have gone

through the record.

12. I find merit in the submissions made by the learned senior

counsel for the petitioner. So far as the first contention of the

learned senior counsel is concerned, no doubt, Sections

272/273 IPC makes out an offence where a person is

responsible for adulteration of any article of food or drink. It

lays that 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 Sections 272/273

IPC by invoking the provisions of the Prevention of Food

Adulteration Act. 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

Sections 272/273 IPC, a person must have mens rea for being

charged. Under the Prevention of Food Adulteration 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 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 joint trial for both these offences, it is not

open to the prosecution while initiating a prosecution against

an accused for an offence under Sections 272/273 IPC to

resort to the 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.

13. The second contention of the learned senior counsel is to the

effect that Section 155(2) Cr.P.C. 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 Sections 272/273 IPC are non-cognizable offences, and

therefore, the said offences could not have been investigated

by the police on account of the registration of the FIR. I am

of the view that, the investigation for the aforesaid offence

under Sections 272/273 IPC was sought to be camouflaged by

the prosecution by adding Section 328 IPC, knowing well that

such a cognizable offence against the petitioner is 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. In the said case, it was observed 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."

14. As regards the third contention of the petitioner, I am in agreement

with the contention of the petitioner that the prosecution is barred

by limitation, as Section 468 CrPC creates a bar for taking

cognizance of the offence after the expiry of the prescribed period

of limitation. Section 468 (2) (b) CrPC provides the period of

limitation as one year if the offence is punishable with imprisonment

for a term not exceeding one year. The offence under Sections

272/273 IPC is punishable with imprisonment for a term not

exceeding six months, thus valid cognizance of the offence could be

taken within the period of one year from the date of commission of

the offence, while as, in the instant case the FIR was registered on

4.9.1998 and the charge sheet was filed and cognizance was taken