S. Nagrajan vs State
2012 Latest Caselaw 1760 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI


                                    Date of Decision : 15.3.2012


1. Crl. Rev. P. No. 321/2004

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

                                 Versus

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



2. Crl. M. C. 2695/2004

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




      Crl.Rev.P.No.321/04 & Crl. M.C. 2695/2004       Page 1 of 20
 V.K. SHALI, J. (Oral)

1. This order shall dispose of Crl. Rev. P. 321/2004 and

Crl.M.C. No.2695/2004 both titled S.Nagrajan Vs. State.

Both these petitions are taken up together for disposal

by a common order as the facts are similar and a

common question is involved in the instant matter, as to

whether the cognizance of an offence can be taken

twice? Secondly, as to whether the second complaint in

respect of the same offence of Prevention of Food

Adulteration Act, 1954 (hereinafter referred to as „the

Act‟) can be filed? Thirdly, as to whether the second

complaint filed under the Act, which obviously has to be

filed after obtaining the sanction from the competent

Authority under Section 20 of the Act on the basis of a

public analyst report can be filed when the said report of

public analyst itself stands superseded.

2. In order to appreciate all these three legal submissions,

it would be pertinent here to give the brief facts of both

the cases.

3. In Crl. M.C. No. 2695/2004, a complaint was filed by the

Department of Prevention of Food Adulteration against

Madan Lal of M/s Popular Store, vendor-cum-proprietor,

M/s.P.K.Agency supplier and National Diary Development

Board, manufacturer. The allegations made in the

complaint were that on 24.08.1999 at about 6.00 PM,

Food Inspector Mr.Pawan Bhatnagar had purchased a

sample of double filtered mustard oil from Madan Lal,

M/s.Popular Store, Shop No.34, Sector-6, R.K.Puram,

New Delhi where the said article of food was found

stored for sale. The sample consisting of approximately 1

liter (910 gram) of double filtered mustard oil (ready for

sale of human consumption) was taken from original

sealed tetra pack bearing label decoration. Three

samples were prepared and one of the samples was got

analyzed from the public analyst. The sample was

reported to be not conforming to the standards laid

down under item No.A.17.06 of Appendix „B‟ of PFA

Rules, 1955 because the sample showed presence of

Argemone oil which is injurious to health. It was

observed that it was likely to cause death on

consumption. On the basis of the said public analyst

report, a complaint was filed against the aforesaid three

accused persons for having committed an offence under

the Act. This complaint was filed on 04.09.1998 against

all the three accused persons. The Court on filing of the

complaint directed the issuance of summons as it was a

complaint filed by the public servant in the ordinary

discharge of his duties. On 15.07.1999, while the matter

was pending for service of the respondents, the Local

Health Authority of PFA filed a fresh complaint against

Mukesh Kumar, Proprietor and Manager of M/s.Popular

Store, M/s P. K. Agency, a partnership firm consisting of

two partners namely K.K.Kalsi and Sh.Parun Kalsi,

Gujarat Co-operative Milk Marketing Federation Ltd., sole

selling agent of NDDB, Mr.K.K. Bhadra, Assistant Manger

(Sale) of Gujarat Cooperative Milk Marketing Federation

Ltd. as a Nominee, S. Nagrajan, Quality Control Officer,

NDDB, Noida as Nominee of the Manufacturing Company

NDDB and Mr.N.K.Chawla, Executive Director, NDDB

alleging the same facts as were alleged in the earlier

complaint. On the basis of the second complaint, the

learned Magistrate passed a detailed order on

26.07.1999, the exact language of the order is as under:

"I have carefully perused the allegations leveled in complaint. Complaint has been filed by Sh. S. K. Nanda a public servant in discharge of his official duties and therefore, I do not find any necessity of examining him or other witness in support of complaint under Section 200 Cr.P.C. A perusal of complaint shows that prosecution regarding the alleged incident had already been instituted on 04.09.1998 against three accused viz Madan Lal, M/s P. K. Agencies and M/s NDDB and during proceedings of that case it was found that sample in question was sold by Mukesh Kumar and he

had signed all the documents as showing himself as Madan Lal and in those circumstances Mukesh Kumar was also impleaded as accused in case i.e. complaint no.111/1998. I have called for the record of that case and I have carefully perused that case file also. After necessary investigations, accused nos. 2 to 7 have also been found to be the persons responsible for the commission of offence. Considering the material on record, I find sufficient grounds and proceeding against all the accused for commission of offences under Section 16 (1)(1A) read with section 7 of PFA Act. Let all the accused be accordingly summoned for 16.11.1999 and this case be tagged with the main case file of 111/1998."

4. The accused petitioner had put in appearance and filed

an application for dropping the proceedings and recalling

the order of issuance of summons on the ground that no

case is made out against him. The learned Magistrate

dismissed the application on 26.09.2003 holding that in

view of Section 16 (A) of the Act, the offence is triable

by a Judicial Magistrate or a Metropolitan Magistrate and

not by Sessions Judge. The application of the petitioner

was accordingly rejected.

5. The petitioner feeling aggrieved by the order of the

learned Magistrate preferred a revision petition before

the Sessions Court which was dismissed on 04.09.2004

by Sh.S.N.Dhingra, (as his Lordship then was). It was

held that the second complaint which was filed by the

Department of Prevention of Food Adulteration was in

the nature of supplementary complaint to the first one

and this was permissible as is done in the police case

under Section 173(8) Cr.P.C. It was also observed by the

learned Sessions Judge that the offence of sale,

distribution, manufacturing etc. of adulterated article of

food are distinct offences and a complaint could be filed

for each of them separately, therefore, it was observed

by the learned Sessions Judge that the complaint which

has been filed by the petitioner in the instant case could

be treated as a complaint against the vender and

distributor while as the second complaint was essentially

against the manufacturer and the sole selling agent.

Accordingly, the revision petition of the petitioner was

dismissed.

6. The petitioner feeling aggrieved by the orders dated

26.09.2003 passed by the learned Magistrate and the

order dated 04.09.2004, passed by the learned Sessions

Judge, rejecting the revision petition, filed the present

petition under section 482 Cr.PC not only for quashing of

the two orders passed by the courts below but also the

complaint itself.

7. In Crl.Rev. P. No.321/2004 in similar circumstances, a

complaint was filed by Mr.R.K.Ahuja, Local Health

Authority titled Delhi Administration Vs. Roopchand &

Ors. before the learned Metropolitan Magistrate for

alleged offence under Section 16(1)(1A) read with

Section 7 of the Act against the accused persons,

namely, Roop Chand, M/s.Rohit Distributors Pvt. Ltd.

and NDDB holding that the offences are triable by the

learned Sessions Court. During the pendency of the

case, another complaint was filed on 18.03.1999 before

the learned Metropolitan Magistrate pertaining to the

same offence as the first complaint, with additional

accused persons including the present petitioner. The

learned Magistrate, vide order dated 22.03.1999, took

cognizance of the same offence again and summoned

the accused persons including the present petitioner.

The learned ASJ was pleased to summon the file on the

second complaint titled Delhi Administration Vs.

Dharambir Jain & Ors. from the Court of the learned

Metropolitan Magistrate and thereafter, passed an order

on 06.05.2004 discharging the three accused companies

i.e. M/s Rohit Distributor Pvt. Ltd., M/s.GCMMF and

NDDB holding that they cannot be prosecuted as being

juristic persons. On 11.05.2004, the learned ASJ

directed the framing of the charges against the present

petitioner for commission of offences punishable under

Section 16(1)(1A) read with section 7 of the Act, and

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

was filed for setting aside the impugned order dated

11.05.2004 and quashing of the complaint itself.

8. I have heard Mr.Dinesh Mathur, the leaned senior

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

learned APP and have gone through the record.

9. 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

cognizance of an offence can be taken only once. In the

instant case, the complaint under Section 7 read with

Section 16(1) (1A) of the Act was filed, of which

cognizance was taken by the learned Magistrate and

notice was issued to the three respondents, namely,

Madan Lal of M/s.Popular Store, vendor-cum-proprietor

or M/s.P.K.Agency supplier and National Diary

Development Board, manufacturer. It was further

contended that it was not open to the learned Magistrate

to entertain the second complaint in respect of the same

incident and issue notices to the accused persons afresh.

10. The second contention was that the offence under the

Act is triable by Magistrate and it could not be tried by

the Sessions Court, therefore, the second complaint

which was filed for transfer to the Sessions Court, of

which the cognizance was taken by the learned Sessions

Court was not sustainable.

11. The third contention of Mr.Mathur, the learned senior

counsel was that once the first complaint was filed by

the Department of Prevention of Food Adulteration under

Section 16(1) (1A) read with section 7 of the Act and the

cognizance was taken, the accused had a right under

Section 13(2) of the Act to get the sample tested afresh

by the public analyst. It has been contended that once

the report of the Central Food Laboratory on the second

sample was given by the said organization then that

report superseded the report of the public analyst. It

has also been contended that in the instant case, the

learned Magistrate, by entertaining the second complaint

has practically entertained the complaint based on the

second sanction purported to have been granted by the

sanctioning authority on the basis of a public analyst

report which stands superseded and such a procedure

followed by the learned Magistrate was totally illegal and

not in consonance with the provisions of law.

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

and left to the Court to pass such orders as may be

deemed fit under the facts and circumstances of the

case.

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 myself in agreement with the contentions raised by

the learned counsel for the petitioner. The cognizance of

an offence can be taken only in terms of Section 190 of

Cr.P.C. One of the modes for taking cognizance is on the

basis of a complaint. It may be also pertinent here to

mention that a cognizance of an offence can be taken

only once, therefore, once the complaint is filed under

the Act, in the instant case, being the first complaint

against the three accused, namely, Madan Lal of

M/s.Popular Store, vendor-cum-proprietor or

M/s.P.K.Agency supplier and National Diary Development

Board, manufacturer, the second complaint was totally

barred and accordingly the cognizance of the second

complaint or the second offence in the second complaint

against the new accused persons could not have been

taken. The cognizance of the offence against the new

accused persons in such an eventuality could be taken

only during the course of trial in pursuance to Section

319 Cr.P.C. in case the evidence would have come up

against them.

15. The petitioner in the instant case had rightly agitated

before the learned Magistrate that the second complaint

could not have been filed, and therefore, they ought to

have been discharged in respect of the second

complaint, but this request was rejected by the learned

Magistrate on 26.9.2003. Curiously enough, the revision

was also dismissed by the learned Sessions Judge by

giving an erroneous interpretation to the provisions of

law. The learned Additional Sessions Judge relied upon

Section 173(8) Cr.P.C., which permits the filing of a

supplementary charge-sheet in a police case. There is a

distinct procedure prescribed under the Code of Criminal

Procedure for a police case and a complaint case. The

Magistrate or much less a court of Sessions cannot follow

two different procedures and try an accused person by

amalgamating two different procedures. So far as

Section 173 (8) of Cr.P.C. is concerned, it appears under

the Chapter XII of the Cr.P.C. under the heading

„investigation‟, it comes into operation in a situation

when an offence which is cognizable is registered by the

police and an FIR is registered that the law envisages

filing of a charge sheet and a supplementary charge

sheet. When the cognizance is taken on the basis of a

complaint, the Magistrate has to follow a procedure

prescribed under Section 200, 202 and 204 and not

under Section 173 Cr.P.C.This kind of amalgamation of

two different kinds of procedures by the learned

Sessions Judge has caused serious prejudice to the

accused. The first complaint which was filed in the

instant case was held by the learned Additional Sessions

Judge to be permitted as a complaint against the vendor

and the supplier, while as the second complaint can be

treated against the manufacturer and the distributor.

With utmost respect to the reasoning of the learned

Sessions Judge, such an interpretation is erroneous. It is

not open to the Judge to contend that the first complaint is

against the vendor and the supplier specifically when the

manufacturer was made a party in the first complaint

itself. Moreover, under the Prevention of Food

Adulteration Act only one complaint is filed by the

Department against all the accused persons whether

they are vendors, suppliers, distributors or

manufacturers. There is no provision in Cr.P.C. for filing

of a second complaint which may be akin to the filing of

a supplementary charge-sheet in a police case.

Therefore, I feel the reasoning given by the learned

Magistrate as well as the learned Sessions Judge in this

regard was totally erroneous. I am of the view that only

the first complaint against the petitioner was

sustainable.

16. The second contention of the learned senior counsel for

the petitioner that the procedure followed by the

Magistrate has caused serious prejudice to him in as

much as his application for sending a second sample of

mustard oil to Central Food Laboratory for which an

application was filed was still pending and

simultaneously a second complaint was entertained

which was also illegal. The petitioner, on receipt of the

first complaint, had appeared in the Court and exercised

his right to get the second sample of the mustard oil

examined. This application was kept in abeyance and in

the second case the application was allowed and the

mustard oil was sent to the Central Food Laboratory.

In both these contingencies, it has caused prejudice to

the accused persons. In the first case, where the sample

was not sent for analysis by the Court, a prejudice was

caused in as much as with the passage of time the

sample has become old and putrid and even if the

sample is tested today, obviously, it will not result

favourably for the petitioner because of chemical

changes which would have taken place in the oil over the

period of time. Therefore, in such a contingency, the

petitioners right to have the second sample examined

from the Central Food Laboratory has been defeated and

a prejudice has been caused to him of the benefit of

sending the second sample to the Central Food

Laboratory. In the second case, the second sample was

analyzed by CFL and the report received from them

superseded the report of the public analyst. Once the

report of the public analyst is superseded, the second

complaint in which the sanction was accorded on the

basis of the public analyst report, becomes non-est

because the second sanction which had been granted by

the Court on the basis of report which was superseded

and which cannot be taken cognizance of. On this ground

also, I feel that the second complaint against the

petitioner is not maintainable as the cognizance of the

offence is already taken once. Moreover, the second

complaint is filed on the basis of a sanction obtained on

the basis of a public analyst report because by the time

the sanction for filing the certain complaint was reached,

the report of the Central Food Laboratory had already

been received and the report of the Public Analyst had

already been superseded.

17. For the reasons mentioned above, I feel that the order

dated 11.05.2004 in Crl.R.P.No.321/2004 and the orders

dated 04.09.2004 and 26.07.1999 in Crl.M.C.

No.2695/2004 passed by the learned Magistrate as well

as by the learned Additional Sessions Judge with regard

to entertaining the second complaint are liable to be set

aside. As a matter of fact, the second complaint ought

not to have been filed as the matter is old and a lot of

time has already gone by, the sample has become itself

putrid. Thus, no useful purpose would be served by

putting the petitioner to trial.

18. I, therefore, in the interest of justice quash the entire

proceedings in respect of both the cases. Accordingly,

the order dated 11.05.2004 in Crl. R.P. No.321/2004 and

the orders dated 04.09.2004 and 26.07.1999 in Crl.M.C.

No.2695/2004 are set aside.

19. Accordingly, both the petitions are allowed.

V.K. SHALI, J.

MARCH 15, 2012 KP