Rajasthan High Court - Jodhpur

Mohan Das And Anr vs State on 5 January, 2021

Bench: Sandeep Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2842/2012

1. Mohan Das S/o Late Sh. Vashudev B/c Sindhi aged 43 years

2.Bharat Kumar S/o Late Sh. Vashudev B/c Sindhi aged 33 years Both are R/o House No.195, Jwaalaaa Vihar, Hanuman Bhawan, Infront of First Poolia, Chopasani Housing Board, Jodhpur.

----Petitioner Versus State of Rajasthan.

----Respondent

For Petitioner(s) : Mr. Hastimal Saraswat through VC.

For Respondent(s)        :     Mr. B.R. Bishnoi, AGC.



           HON'BLE MR. JUSTICE SANDEEP MEHTA

                                Judgment



Judgment pronounced on                 :::             05/ 01/2021
Judgment reserved on                   :::             16/12/2020

1. Heard learned counsel representing the parties. Perused the

material available on record.

2. The instant misc. petition has been filed by the petitioners

herein for assailing the order dated 17.05.2012 passed by the

learned Additional Sessions Judge (Fast Track) No.3, Jodhpur

Metropolitan in Revision No.04/2012 (56/2012) whereby, the

learned revisional court dismissed the revision petition of the

petitioners and affirmed the order dated 24.02.2012 passed by

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the learned Metropolitan Magistrate No.3, Jodhpur Metropolitan in

Criminal Case No.384/2007 framing charge against the petitioners

for the offences under Sections 420 and 272 of the IPC and

Sections 63 and 65 of the Copyright Act, 1957.

3. Succinctly stated the facts relevant and essential for the

disposal of this misc. petition are noted hereinbelow:-

The SHO, Police Station Sadar Kotwali, Jodhpur received an

information on 07.05.2007 that the petitioner Bharat Kumar and

his associates of the firm Vashudev & Company Limited situated at

Sardar Market, Ghantaghar, Jodhpur were selling spurious ghee

representing it to be pure and in this manner, they were cheating

the public. The Food Inspector was intimated to reach the spot.

Accordingly, the SHO, Police Station Sadar Kotwali as well as the

Food Inspector, Jodhpur reached the premises of the firm

Vashudev & Company Limited. The petitioner Bharat Kumar was

found present in the shop. While the police officials undertook the

search, Mohandas also arrived there and became alarmed on

seeing the police party. The search of the firm's premises was

made by the police officers in the presence of motbirs and Food

Inspector. Empty and filled tins of ghee, iron caps, packing

machine, pasteboard of cartons, labels of numerous companies,

etc. were found inside the premises which were seized. Both the

accused persons were arrested and brought to the Police Station

Sadar Kotwali, Jodhpur where, FIR No.72/2007 came to be

registered against them for the offences under Sections 420 and

272 of the IPC and Sections 63 and 65 of the Copyright Act.

(3 of 7) [CRLMP-2842/2012]

4. It may be stated here that the Food Inspector also collected

samples from the food article styled to be ghee and after receiving

the report of the Public Analyst, a complaint has been filed against

the petitioner No.1 Bharat Kumar in the court of the Chief Judicial

Magistrate, Jodhpur for the offences under Section 7/16 of the

Prevention of Food Adulteration Act, 1954.

As per the report of the public analyst, the sample of food

article (ghee) was found to be adulterated upon analysis but no

opinion was given that it was spurious or injurious to health.

In the present case registered on the police report, one

sample of the food article styled to be ghee was forwarded to the

State Central Public Health Laboratory from where a report dated

05.06.2007 was received with the following opinion/ conclusion:

"The sample of ghee bearing L(H)A Code & Sl. No. M-

3529 is adulterated as it does not conform to the

prescribed standards of PFA Rules, 1955."

5. Be that as it may. After concluding investigation, the

investigating officer proceeded to file a charge-sheet against the

petitioners for the offences under Sections 420 and 272 of the IPC

and Sections 63 and 65 of the Copyright Act, 1957. The learned

Magistrate, framed charges against the petitioners for these very

offences by order dated 24.02.2012. Being aggrieved of the order

dated 24.02.2012 passed by the learned Magistrate, the

petitioners preferred a revision petition which was dismissed by

the learned revisional court vide order dated 17.05.2012.

Thereupon, the petitioners have approached this Court by way of

this misc. petition under Section 482 Cr.P.C. seeking quashing of

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the impugned orders and all proceedings sought to be taken

against them in furtherance thereof.

6. Shri Hastimal Saraswat, learned counsel representing the

petitioners vehemently and fervently contended that prima facie

ingredients of the offences alleged are not made out against the

petitioners. No one had made any complaint regarding the

petitioners selling spurious/ adulterated ghee by branding/styling

the same to be pure nor was any witness examined by the I.O.

during the course of investigation who claimed to have been

cheated by the petitioners in this manner. He thus urged that for

want of even a shred of evidence to the effect that the petitioners

cheated anyone by selling spurious or misbranded ghee, the

charge under Section 420 of the IPC could not have been framed

against the petitioners because necessary ingredients thereof are

not made from the entire material/evidence collected by the I.O.

during investigation.

Regarding the charge under Section 272 IPC, the contention

of Shri Saraswat was that as the Forensic Laboratory has not

given any opinion in the analysis report dated 05.06.2007 that the

sample of the ghee in question was adulterated so as to make it

noxious, charge under Section 272 IPC could not have been

framed against the petitioners.

So far as the charges under Sections 63 and 65 of the

that there was no complaint of anyone either before lodging of the

FIR or during investigation that its branding or copyright was

being misused by the petitioners on the packaging of the food

article in question. He urges that for a prosecution under the

(5 of 7) [CRLMP-2842/2012]

provisions of the Copyright Act, it is an essential requirement that

there should be a complaint of the holder of a copyright that the

accused misused the same by using similar or deceptive marks.

He urged that as there is no material on the record of the case to

establish violation of copyright, cheating and sale of noxious food

article, the order framing charges and all proceedings sought to be

taken thereunder are grossly illegal and amount to an abuse of

process of law. Hence, the same deserves to be quashed and set

aside.

7. Per contra, learned Public Prosecutor vehemently and

fervently opposed the submissions advanced by the petitioners'

counsel and urged that the grounds laid forth for assailing the

impugned orders can only be appreciated after evidence is

recorded at the trial. However, learned Public Prosecutor was not

in a position to dispute the fact that for the very same set of

allegations, a criminal prosecution has been instituted against the

petitioner No.1 Bharat Kumar for the offences under the

Prevention of Food Adulteration Act and Rules on the basis of a

complaint filed by the Food Inspector in the court concerned. It

was also not disputed that neither was the questioned search and

seizure proceeding initiated on the basis of complaint of any

known person that the petitioners were selling spurious or

misbranded food articles nor did the investigating officer collect

the evidence of even a single witness during the course of

investigation who claimed to have been cheated by the petitioners

by the sale of adulterated ghee. Thus, I am of the firm opinion

that there does not exist even a semblance of evidence on the

record of the case for justifying the framing of charge against the

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petitioners under Section 420 IPC as necessary ingredients of the

offence are totally lacking from the admitted prosecution case.

Section 272 IPC reads as below:

"272. Adulteration of food or drink intended for sale.-- Whoever 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 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."

Noxious is not defined in the penal code and thus, dictionary

meaning thereof would hold the field. Noxious is defined as

"harmful, poisonous or very unpleasant".

After a perusal of the statutory provision, it is clear that

prosecution for the above offence can be initiated only if anyone is

found adulterating any article of food or drink so as to make the

article noxious. The word 'noxious' means harmful or poisonous as

per its dictionary meaning. An adulterated article of food would

not necessarily be considered as harmful, poisonous or noxious so

as to make it unfit for human consumption. Thus, for institution of

prosecution under this provision, there has to exist scientific or

other evidence that food articles concerned contained some