Rajesh Dayal Khare, J. - (1.) HEARD learned Counsel for the applicant and learned A.G.A. for the State Respondent.
(2.) THE present application has been filed for quashing the proceedings of case No. 3297 of 2010 under Section 272/273 IPC, P.S. Mughalsarai District Chandauli pending in the court of C.J.M., Chandauli. It is contended by the learned Counsel for the applicant that the allegation against the applicant is that the sample of ice -cream, which was taken from the applicant's shop, was found not up to the mark, hence, the proceedings under the charged section has been drawn. It is also contended that with regard to the allegation against the applicant, the proper remedy would have been to initiate proceedings under the Prevention of Food Adulteration Act and not under the provisions of I.P.C., therefore, criminal prosecution of the applicant under the charged section is bad in law. Learned Counsel for the applicant has relied upon the judgment of Division Bench of this Court passed in writ petition No. 8254 (MB) of 2010, M/s Pepsico India Holdings (Pvt) Limited and Anr. v. State of Uttar pradesh and Ors. No. 8254 (MB) of 2010 and the order passed by Single Judge of this Court in criminal revision No. 1964 of 2007, Rajesh Jain v. State of Uttar Pradesh and Ors. No. 1964 of 2007, in support of his contention. It is lastly contended that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contentions.
(3.) FROM the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482, Code of Criminal Procedure At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur v. State of Punjab : AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC 426, State of Bihar v. P.P. Sharma, 1992 SCC 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para -10), 2005 SCC 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239, 245(2) or 227/228, Code of Criminal Procedure as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial Court. The prayer for quashing the proceedings is refused.;