- (1.) G. P. Mathur, J. This petition under Section 482, Cr. P. C. has been filed for quashing the order dated 3-10-1981 passed by the learned Addl. CJM refusing to dis charge the applicants, order dated 29-7-1982 of the learned Sessions Judge dismiss ing the revision preferred against the said order and also to quash the proceedings of Criminal Case No. 1032 of 1981 pending against the applicants ;n the Court of Addl. CJM. Varanasi.
(2.) THE Food Inspector took a sample from a sealed tin of Ajanta Vanaspati from the shop of Raja Ram. THE said sample was sent for analysis and as per the report of public Analyst dated 5-4-1976, the sample was adulterated. A complaint was accord ingly filed by Nagar Swathya Adhikari against Raja Ram (owner of the shop) and Jagdish Nath (Seller ). THE learned Magistrate exercising his power under Sec tion 20-A of Prevention of Food Adultera tion Act impleaded M/s. Jain Sudh Vanaspati Ltd. (Manufacturer) as accused. THE applicant No. 1 JP Chaturvedi is the Manager of M/s. Jain Sudh Vanaspati Ltd. , Ghaziabad. THE applicants appeared in Court on 23-9-1980 in pursuance of sum moning order dated 27-7-1979 passed by the learned Magistrate. THE day the applicants appeared in Court i. e. on 23-9-1980 they moved an application for sending. THE sample was received is Court Food Laboratory. THE sample was received in Court from the office of Nagar Swasthya Adhikari on 26-2-81 and was sent for analysis on 11- 3-81. THE Central Food Laboratory analysed the sample and sub mitted a report dated 18-4-81. According to the report of the public Analyst of U. P. Government, the content of oleic acid was 0. 16 per cent but the sample did not contain Vitamin 'a'. According to the report of Central Food Laboratory the sample con tained Vitamin 'a but it contained free fatty acid as oleic acid to the extent of 0. 67 per cent. After the aforesaid report had been received the applicants moved an applica tion that they are liable to be discharged but the same was rejected by Addl. CJM on 8-10-81. THE applicants preferred a revision against the said order but the same was also dismissed by the learned Sessions Judge on 29-7-82. I have heard Sri Amar Saran for the applicants and S/shri B. P. Agarwal and S. K. Garg for the contesting respondents. The principal submission of the learned Counsel for the applicants is that in view of Section 13 of Prevention of Food Adulteration Act the report of Central Food Laboratory will supersede the report of Public Analyst of U. P. Government and therefore the Court has to proceed on the basis that sample contained Vitamin A' and was not deficient in that regard. It is urged that the require ment of sub-clause (VIII) of Clause A-19 of Appendix B to Prevention of Food Adul teration Rules, which lays down standard for vanaspati, is that it should not contain free fatty acids (calculated as oleic acid) exceeding 0. 25 per cent but in view of the long delay in taking of the sample and in its analysis by Central Food Laboratory, the content of oleic acid could increase on ac count of oxidation and therefore it cannot be held that sample was not in accordance with the prescribed standard. The report of Public Analyst dated 5-4-79 is quite clear that the content of oleic acid found was 0. 16 per cent. This was well within the prescribed standard. At the time when the sample was analysed by the Central Food Laboratory on 18-4-81, the content of oleic acid was 0. 67 per cent. It may be noticed that the sample was taken on 20-2-76 and the report of Central Food Laboratory has been given after more than five years i. e. on 18-4-81. The question as to whether the content of free fatty acid as oleic acid could increase with the passage of time has been con sidered by the Supreme Court in Nebh Raj v. The State (Delhi Administration) and another, AIR 1981 SC 611 and after con sidering some authorities on the point, it has been held that oxidation due to ex posure to air has the effect of increasing the tree fatty acid content of edible fats and oil. In the said case, the sample was taken on 17-10-70 and the report of the Central Food Laboratory was sent on 26-10-73 i. e. , after about three years. According to the report, the content of oleic acid was 42. 2 per cent and yet conviction was set aside on the ground that exposure to air could lead to oxidation which increased the content of oleic acid. In the present case, the sample has been analysed by the Central Food Laboratory after about five years and there is a marginal increase in the content of oleic acid to the extent that it is 0. 67 per cent while it should not have exceeded 0. 25 per cent. In view of the long delay in analysis by Central Food Laboratory increased in the content of oleic acid on account of oxidation cannot be ruled out. The applicants cannot be blamed for delay in making application for analysis by Central Food Laboratory in asmuch as they were summoned by the order of the Court dated 27-7-79 and they moved the application on 23-9-80, the day on which they appeared before the learned Magistrate. In view of these facts, lam of the opinion that no useful purpose would be served by prosecution of the applicants as on admitted facts they cannot be held guilty for having committed any offence under the Prevention of Food Adulteration Act. The learned Counsel for the respon dents has urged that the applicants initially applied for being discharged but the ap plication was rejected by the Learned Magistrate on 3-10-81 and the revision preferred against the said order was also dismissed by the learned Sessions Judge on 29-7-82 and in this view of the matter the present petition under Section 482, Cr. P. C. is not maintainable. In support of this sub mission, reliance is placed on Ganesh Narayan Hegde v. Shri S. Bangarappa and others 1995 (4) J. T. 124 : 1996 JIC 491 (SC ). It is true that the application moved by the accused applicants for being discharged was rejected by the learned Magistrate and the revision preferred was also dismissed by the learned Sessions Judge. However the contention of the applicants is that their prosecution en the admitted facts and material on record is a clear abuse of the process of the Court as even if the case of the prosecution is accepted on its face value they cannot be held guilty of having com mitted any offence. The applicants have not only challenged the correctness of the order passed by the learned Magistrate as well as of the learned Sessions Judge but have also challenged the entire proceedings of the Case. In this view of the matter though the present petition under Section 482 Cr. P. C. against the impugned order of the learned Magistrate dated 3. 10. 81 and 29-7-82 may not be maintainable but it is certainly open to this Court to examine whether the proceedings against the applicants should be allowed to continue. As mentioned ear lier, in view of the report of Central Food Laboratory and the long delay, it cannot be held that the sample taken from the shop of Raja Ram from a sealed tin of Ajanta Vanaspati, which was manufactured by M/s. Jain Sudh Vanaspati Ltd. , of which applicant no. 1 is the Manager, was adultered. If the sample was not adultcred it is obvious that the accused have committed no offence and their prosecutions is a clear abuse of the process or court. In these circumstances it is fully open to this Court to quash the proceedings of the case in exercise of power conferred under Section 482, Cr. P. C.
(3.) IN the result, the petition succeeds and is hereby allowed. The proceedings of Criminal Case No. 1032 of 1981 pending in the Court of ACJM Varanasi as against the applicants are quashed. Petition allowed. .;